Ross Grier v Director of Public Prosecutions (DPP)

Hearing date: 6 June 2024

APPROVED JUDGMENT

This judgment was handed down remotely by the judge and circulated to the parties' representatives by email and release to The National Archives. The date and time for hand-down is deemed to be Monday 17 June 2024 at 10:00am.

INTRODUCTION

This is the judgment of the Court.

This is an appeal by way of case stated from District Judge Verghis sitting in the Magistrates' Court on 30 November 2023. The issue relates to the admissibility under s.78 Police and Criminal Evidence Act 1984 (“PACE”) of identification evidence of an eye-witness police officer in circumstances where no “identification procedure” under PACE Code D, Code of Practice for the Identification of Persons by Police Officers (“Code D”) took place. That question has two parts:

i) Whether the absence of an identification procedure constituted a breach of Code D;

ii) Whether if so the police officer's identification evidence should have been excluded under s. 78 in all the circumstances.

There is also an issue as to timing, since the Appellant's documents were served late.

FACTUAL BACKGROUND

On 29 March 2023 at 22: 57 PC 3595 Adam Price (“PC Price”) was on duty in full uniform driving an unmarked police vehicle with a colleague. He became aware of a Nissan Qashqai vehicle, (“the Nissan”) in a BP petrol station forecourt on Wokingham Road in Early which was of interest to the police.

PC Price drove onto the forecourt of the petrol station to one of the petrol pumps under the canopy. The Nissan was approximately one metre away, on the other side of the same pump. It was dark and drizzling, but the lighting at the petrol station under the canopy was good and PC Price's view was unobstructed.

PC Price observed the driver for about 15 seconds as a white male with distinctive curly ginger style hair on the top of his head. PC Price also noted that the driver appeared to be paying close attention to the police vehicle.

PC Price ran a check on the Nissan which showed that there was no registered keeper on record for the Nissan, but there was an insurance policy in place held by the Appellant.

Another male got into the Nissan which was driven off the forecourt onto Wokingham Road. PC Price followed the Nissan and attempted to stop it by illuminating his blue lights. The Nissan sped away; in pursuit PC Price noted that the Nissan was travelling at 43 mph rising to 70 mph in a 30mph limit. The Nissan went through a red traffic light and pulled into the path of a Toyota Prius vehicle which had to brake harshly to avoid collision.

PC Price then lost sight of the Nissan, which was found later with its engine running and damaged, outside Poacher's Pub on Mill Lane house. A search for the driver was unsuccessful.

That night PC Price returned to the police station and started to write-up his note of the incident. He did not however complete this task at this point.

The next day, on 30 March 2023, there were enquiries by the Appellant and the Appellant's mother seeking the return of the Nissan. In response to those enquiries, PC Price agreed to meet the Appellant at Loddon Valley Police Station. Immediately when the Appellant arrived at the Police Station and met PC Price, PC Price was sure that he recognised the Appellant as the driver. So sure was he that within five minutes he had arrested him.

PC Price subsequently interviewed the Appellant in the presence of a solicitor, and the Appellant answered “no comment” to all questions.

After completing the interview he completed his notes of the encounter the previous night.

The Appellant was charged, as follows:

“On 29 March 2023, at Lower Early in the County of Berkshire drove a mechanically propelled vehicle … on a road, namely Rushey Way plus adjoining roads without due care and attention, Contrary to S.3 Road Traffic act 1988 and schedule 2 Road Traffic Offenders Act 1988;

On 29 March 2023, at Lower Early in the County of Berkshire drove a mechanically propelled vehicle … on a road, namely Rushey Way plus adjoining roads, failed to stop the vehicle when required to do so by a Constable in uniform, Contrary to s.163 Road Traffic act 1988 and schedule 2 Road Traffic Offenders Act 1988.”

On 31 March 2023, the Appellant appeared in custody at Reading Magistrates' Court and pleaded not guilty to both charges. In the case management section of the Preparation for Effective Trial form, in answer to the standard questions, the box was marked that it was “disputed” that “ the defendant was present at the scene of the offence alleged”; that it was “disputed” that “ the defendant [carried out] [took part in] the conduct alleged [drove the vehicle involved]”; and “disputed” that “ the defendant was correctly identified”. In response to the question, “ What are the real issues in this case?” someone had recorded that, “ The defendant denies being the driver”. A Defence Statement was served in June which made clear that identification was disputed.

On 14 July 2023 the case was tried in front of District Judge Verghis sitting in Reading Magistrates' Court. The Prosecution called PC Price as a witness and relied on his identification evidence. The judge notes in the case stated that it was never put to PC Price in cross-examination that the Appellant was not the driver of the Nissan.

At the close of the prosecution case the defence made a submission of no case to answer. The Defence submitted that PC Price's identification evidence was flawed as it lacked detail as to initial observations and he did not complete his notes until after he had arrested the Applicant on 30 March 2023. Further, it was contended that the Police were under a duty in the circumstances to hold an identification parade in accordance with Code D. Accordingly, it was submitted that the identification evidence should be excluded under s. 78 PACE.

The District Judge having found a case to answer, the Defence did not call the Appellant to give evidence. The Defence relied on essentially the same arguments in closing. The Prosecution submitted that PC Price's identification evidence was corroborated by evidence of the Appellant's insurance of the Nissan and the Appellant's intention to retrieve the vehicle within 24 hours of the incident. They also invited the judge to draw an adverse inference from the Appellant's failure to give evidence in his defence.

On 18 July 2023 at Slough Magistrates' Court District Judge Verghis gave her verdict orally. She found the Appellant guilty on both charges. After hearing mitigation evidence on behalf of the Appellant, DJ Verghis sentenced the Appellant for the offence of driving without due care and attention to a fine of £750, a surcharge of £300, costs of £775, and a discretionary disqualification from driving of 12 months pursuant to S.34(2) Road Traffic Offenders Act 1988. No separate penalty was imposed for the non-endorsable offence of failing to stop when required to do so by a police officer in uniform.

DJ Verghis directed that Reading Crown Court should be notified of the convictions as the Appellant had previously been placed on a 24-month suspended sentence order on 16 March 2023 in respect of two offences of possession of class A drugs with intent to supply.

On 30 November 2023 DJ Verghis decided to state a case for the opinion of the High Court on the following question of law:

“Was I as the District Judge correct not to exclude the identification evidence of PC Price under s. 78 of PACE?”

The decision to state a case by the magistrates' court was served on the Appellant and the CPS on 22 January 2024. The Appellant filed the Appellant's Notice at the High Court on 2 February 2024, a day after the applicable 10-day time limit set out in CPR Practice Direction 52E paragraph 2.2, without filing an application for an extension of time.

On 5 February 2024 the case was issued by the High Court. The Appellant served the case and the Appellant's Notice on the CPS on 16 February 2024.

THE LAW

Section 78 of PACE 1984 states:

“(1) In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it. (2) Nothing in this section shall prejudice any rule of law requiring a court to exclude evidence.”

Although on its face section 78 confers a discretion, the true position was explained by the Court of Appeal (Criminal Division) as follows in R v Twigg [2019] 1 WLR 6533, at [42]–[43]:

“42. The function of a judge under section 78 of PACE is often described as being the exercise of a ‘discretion’. That is how it was described in the present case. This is consistent with the use of the word ‘may’ in section 78 itself. However, as Auld LJ observed in R v Chalkley [1998] QC 848, 874, strictly speaking section 78(1) does not involve a discretion because, if a court decided that admission of the evidence in question would have such an adverse effect on the fairness of the proceedings that it ought not to admit it, it cannot logically exercise a discretion to admit it. Indeed, this position can only have been reinforced by the...