R v Popat
| Jurisdiction | England & Wales |
| Judgment Date | 23 March 1998 |
| Judgment citation (vLex) | [1998] EWCA Crim J0323-1 |
| Docket Number | NO: 97/5467/W2 |
| Court | Court of Appeal (Criminal Division) |
| Date | 23 March 1998 |
[1998] EWCA Crim J0323-1
Lord Justice Hobhouse
Mrs Justice Bracewell
Mr Justice Sachs
NO: 97/5467/W2
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London WC2A 2LL
MS S BARNES appeared on behalf of the Appellant
MS S WASS appeared on behalf of the Crown
HOBHOUSE LJ:
This is an appeal with the leave of the full court by a young man Chetan Popat who on 21st July of last year after a trial at the Central Criminal Court before His Honour Judge Rogers QC and a jury was convicted on an indictment containing four counts. Counts one and two related to an incident said to have occurred on 10th June 1996 involving an attempted rape and the indecent assault of a 30 year old married woman, Sharon St John. The third and fourth counts related to an incident said to have occurred on 6th November of that year involving a further indecent assault on the same woman and a threat to intimidate her as a potential witness. The Appellant was convicted on all counts. The relevant issue at the trial was whether it was the Appellant who had committed the offences in question and whether the victim's evidence that he was the man was credible and reliable. The point raised on this appeal is one of the proper understanding of Code of Practice D under s.66 of the Police and Criminal Evidence Act 1984 and in particular whether there was a breach of paragraph D2.3 of the 1995 Edition of the Code which provides:
"Whenever a suspect disputes an identification, an identification parade shall be held if the suspect consents unless paragraphs 2. 4 or 2. 7 or 2.10 apply. A parade may also be held if the officer in charge of the investigation considers that it would be useful, and the suspect consents."
No identification parade was held at which the victim was asked to identify the Appellant. The exceptions in paragraphs 2.4, 2.7 and 2.10 did not apply. The Appellant submits that there was a breach of the Code and that the trial Judge should have excluded the victim's evidence of identification under s.78 of the Act on the ground that it "would have such an adverse affect on the fairness of the proceedings that the court ought not to admit it". The reason why the Crown submit that there was no breach of paragraph 2.3 is that there had already been a proper and valid identification of the appellant by the victim under paragraph 2.17. The point raised by this appeal therefore is one which requires this Court to visit yet again the relationship between these two paragraphs of Code D and the conflicting dicta contained in judgments of this Court.
For present purposes the relevant facts can be briefly summarized. Mrs St John lived in north-west London. On the morning of 10th June 1996 she had dropped her children off at a playgroup and then went for a walk in her local park. She noticed two young Asian men walking towards her. One of the men, whom she described as about 5ft 6" tall of slim build and with a prominent nose and thick gold coloured earring in his left ear, said to her: "Show us your tits". She ignored him but as she passed he reached out and grabbed her left breast. A struggle ensued in which the second man also took part. He held her from behind while the first man put his hands on her breasts and then bit her on her breast. He then attempted to rape her whilst the second man held her from behind. He then further indecently assaulted her before the two men let her go. She said the incident lasted between five and ten minutes in all. She was able to see the man's face clearly and at close range for most of the time. She reported the incident to the police and was examined by a police doctor.
Subsequent to that incident she went away and did not return until September. She said that about a week after her return she saw the same man again in the street. She was coming out of her house and he was walking towards her from about 200 yards away. He walked towards and past her and after passing her looked back several times but he said nothing.
She said that she saw him for a third time about a fortnight later in her local High Street. He was in a group of young Asians and as he passed her he said "How's your tits". She again had a good view of him. It was about midday. She was sure it was the same man. On the evening of 6th November she was walking to the shops and she saw him again. He pulled her into an alleyway and pushed her onto the ground. A security light came on so she had a good view of him. He kicked her and sat across her chest. He said: "What have you said? Who have you told? You'd better keep your mouth shut." He then indecently assaulted her by attempting to put his penis in her mouth. The incident ended with his running off. She said later that she noticed that he had a facial twitch. She reported the incident to the police and was again examined by the police doctor.
After the first incident on 10th June the police had arrested two suspects one of whom they released after questioning because they were satisfied that he could not have committed the offences. The other suspect was required to stand on an identification parade. The witness did not identify him as her assailant. He was released.
In October the police continued to be concerned to see if she could identify to them the man about whom she had told them. To this end it was arranged for the witness to keep a watch, accompanied by a plain clothes police officer, for the man to whom she was referring. Most of these observations were from or in the vicinity of the her flat where she lived but there was also a session that took place in the shopping centre. Sessions were held on 29th October, 31st October, 14th November, 25th November and 26th November. On 26th November she was keeping watch in the company of WPC Miller from the front window on the first floor of the house in which her flat was. This was a house set back about 6 feet from the pavement line with a clear view of the street in both directions. This session started at 11am. At 12.50pm she observed a man walking down the pavement towards the house whom she said was the man whom she had seen on the five occasions already referred to. She said that as soon as he came close enough for her to see his face she recognized him immediately. She also recognized the flinching on the left side of his face which she remembered from the incident in the alleyway. She also remarked upon the way that he walked with a swagger which she also remembered from previous occasions. She told WPC Miller "That's him". WPC Miller asked her "Are you sure". She replied "Yes". WPC Miller then went out into the street and with the assistance of another officer arrested the man.
The man they arrested was this Appellant. It was not in dispute that he was the man whom the witness had seen walking past her house a few moments before and whom she had pointed out to WPC Miller. It was however clear from what subsequently occurred that he was disputing that he was the man who had committed the offences on 10th June and 6th November.
In interview the Appellant denied the offences and gave explanations for his movements on the days in question which were, he said, inconsistent with his being the assailant.
At the trial it was submitted on behalf of the Appellant that the evidence of the witness concerning her identification of the Appellant on 26th November should be excluded under s.78 of the Police and Criminal Evidence Act. The Judge rejected this submission. There was no basis for criticising what had occurred on 26th November. At that time there was no suspect known to the police or known to the witness otherwise than by his appearance. The witness had not been shown photographs of any suspect nor had anything else occurred which would be likely to make her identification on that day suspect. It was broad daylight. The circumstances of the observation and its duration were both ideal. It was faintly suggested that the witness may have been desperate to identify someone and therefore identified the first remotely similar young man who passed her house on that occasion. There was no basis for this suggestion. She had refrained from identifying anyone on the earlier identification parade; she had not identified anyone on any of the previous observation sessions.
Subsection (b) Code D deals with "Cases where the identity of the suspect is not known" and provides
"2.17 A police officer may take a witness to a particular neighbourhood or place to see whether he can identify the person whom he said he saw on the relevant occasion. Before doing so, where practicable a record shall be made of any description given by the witness of the suspect. Care should be taken not to direct the witness's attention to any individual.
2.18 A witness must not be shown photographs, photofit, identikit or similar pictures if the identity of the suspect is known to the police and he is available to stand on an identification parade. If the identity of the suspect is not known, the showing of such pictures to a witness must be done in accordance with annex D."
There is a note for guidance concerning when a suspect is "known".
"D:2E References in this section to a suspect being "known" means there is sufficient information known to the police to justify the arrest of a particular person for suspected involvement in the offence. A suspect being "available" means that he is immediately available to take part in the procedure or he will become available within a reasonably short time."
The Codes of Practice are issued by the Secretary of State under s.66 of the Police and Criminal Evidence Act. One of the headings is "The Detention, Treatment, Questioning and...
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Subject Index
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