The Car-Park Identification and the 'Found Phone' Remark
At 21:40 a woman is robbed of her phone outside a tube station. At 22:30 police arrest Kofi, 22, nearby, and find the phone in his jacket pocket. Kofi asks for a solicitor; the officer says he cannot have one 'yet, because we need to sort the ID first'. The victim is then brought to the police car and, from the back seat, identifies Kofi: 'that's him, the one in the grey top.' Kofi was not cautioned before she spoke. At the scene the victim had described the robber as 'maybe 30, dark coat, no glasses'. Kofi is 22 and was wearing a grey hoodie. Before the victim arrived, Kofi told the officer, 'I found the phone, I didn't take it from anyone.'
1. Identify the breaches of Code D and PACE 1984 and explain their effect on the identification evidence.
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Code D breaches.
- The witness's first description must be recorded (Code D para 3.1). Here it was 'maybe 30, dark coat, no glasses'; Kofi is 22 and wore a grey hoodie. That discrepancy matters.
- Where the suspect is known and available, a formal procedure - in practice a video identification - should be used (Code D paras 3.2 to 3.4). A one-to-one confrontation at a police car is permissible only in limited circumstances, essentially where the formal procedures are impracticable, and the decision and reasons must be recorded. Kofi was arrested, in custody and available; the station was nearby. No reason was recorded. This is a significant and substantial breach.
PACE breach. Kofi asked for a solicitor and was refused on the ground that the identification needed sorting first. That is not a lawful basis for delay under s.58(6) and (8), and no superintendent authorised it. It is a separate breach.
Failure to caution. The caution applies to questioning after arrest. A spontaneous remark need not be preceded by one, but the failure to caution, coupled with the refusal of legal advice, is relevant to fairness under s.78.
Effect. The identification is of poor quality and has been contaminated: the victim has been shown a single suspect in police company immediately after a brief, dark-street incident on a description that does not match. The risk of mistake is high, and the evidence is vulnerable under s.78 and, if admitted, to a Turnbull direction and searching cross-examination on the breaches.
2. The Crown seeks to adduce the victim's identification and Kofi's 'found the phone' remark. What applications do you make, and what is the realistic outcome?
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The identification - s.78(1). Apply to exclude it. The significant and substantial breaches of Code D, the failure to use an available formal procedure, the discrepancy between the description and Kofi, and the one-suspect confrontation all point to unfairness. The court will weigh the seriousness of the robbery, the importance of the evidence and the impact of the breach on reliability. Exclusion is a realistic prospect.
The remark - s.78(1), not s.76. The statement 'I found the phone' is exculpatory, so s.76 (confessions) does not apply. The route is s.78: it was made in custody after a request for legal advice had been unlawfully refused, without a caution and without any record. Argue that admitting it would be unfair. Expect the Crown to say it was spontaneous and voluntary and that Kofi was not being questioned.
Realistic outcome. The identification is more likely to be excluded than the remark. That may suit the defence: the remark puts the 'found phone' account before the court without Kofi giving evidence, and it avoids any s.34 adverse inference because he mentioned it at the first opportunity. But be careful: if the remark is admitted and the identification excluded, the Crown may still rely on recent possession of the phone, which is powerful circumstantial evidence.
Practical step. List both applications for a voire dire, obtain the officers' notebooks, the custody record and any body-worn video, and cross-examine the identification officer on why no video identification was arranged.
3. If the identification is excluded, is there a case to answer, and how do you advise Kofi about giving evidence?
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Case to answer. Under Galbraith, the question is whether there is evidence on which a properly directed jury could convict. The phone was in Kofi's jacket pocket within an hour of the robbery. The doctrine of recent possession permits an inference that he knew the phone was stolen if his explanation is rejected. That is sufficient to raise a case even without the identification, so a submission of no case is likely to fail unless the explanation is inherently compelling and the Crown's circumstantial case collapses.
Advice on giving evidence. Explain that if he does not give evidence, his 'found phone' remark is still before the court, but the jury will have no account of how he came by the phone and may draw inferences. If he does give evidence, he will be cross-examined on the circumstances of the find, the timing, why he did not hand it in, and his description. Prepare him thoroughly, warn him against changing his account and do not advise him to give untruthful evidence.
Fallback. If the identification is admitted, the defence should focus on Turnbull factors: the brief duration, the darkness, the poor initial description and the suggestive confrontation. The breaches of Code D and s.58 should be put to the officers in front of the jury to undermine the reliability of the identification and the fairness of the investigation.