Admissibility of Identification Evidence in Criminal Proceedings Highlighted in R v William Bogie [2023] EWCA Crim 1280

Introduction

The case of R v William Bogie [2023] EWCA Crim 1280 serves as a critical examination of admissibility of evidence, specifically concerning identification evidence in a criminal proceeding. The Court of Appeal (Criminal Division) was tasked with determining whether the police breaches of the Police and Criminal Evidence Act 1984 (PACE) Code D affected the fairness of the original trial.

Key Facts

William Bogie was convicted of robbery, possession of a bladed article, and driving while disqualified. His conviction was largely based on identification evidence following a breach of Code D by the investigating officers, DC Arthur and DC Sengelow. The code pertains to the identification of persons by police officers, with specific procedures to prevent mistaken recognition and collusion. This evidence was challenged on appeal on the grounds of admissibility under Section 78 of PACE, potential prejudice due to loss of CCTV footage, and the sufficiency of evidence at the close of the prosecution case.

Legal Principals

Several legal principles emerge as pivotal in this case. Firstly, there is the guidance given in cases such as R v Galbraith [1981] 1 WLR 1039 and R v Turnbull [1977] QB 224 regarding the quality of identification evidence and when a case should be stopped if there is no evidence or the evidence is of an inherently weak character.

The second significant principle revolves around the admissibility of evidence under Section 78 of PACE, which examines whether the evidence would adversely affect the fairness of proceedings. The court referred to R v Chalkley [1998] QB 848 and R v Boxall (Arthur) [2020] EWCA Crim 688 for guidelines on when evidence should be excluded to ensure a fair trial under Article 6 ECHR.

Lastly, the court considered the precedent set by the Divisional Court in R (Ebrahim) v Feltham Magistrates’ Court [2001] EWHC 130 (Admin); [2001] 1 WLR 1293 regarding the loss or absence of evidence and how that impacts the fairness of the trial. The court must determine if the absence of such evidence causes serious prejudice to the defendant’s case or if the defendant has suffered from police or prosecution misconduct.

Outcomes

The appeal was dismissed based on the court’s ruling that, despite the significant breaches of Code D in the case at hand, the convictions were safe. The rationale was that the recognition evidence provided by the police officers was not merely assertive but detailed and explained. Even though there were no contemporaneous notes as required by Code D, the details given by the officers at the voir dire sufficiently described the recognition process. Moreover, the court emphasised that the jury had objective means to make their own assessment of the appellant’s identification through the available CCTV footage, alongside the officers’ testimonies.

The loss of specific CCTV footage was addressed under the principles of Ebrahim, where the court determined that the absence of evidence more notably affected the prosecution’s case and that the defendant was able to utilise this gap to challenge the reliability of the prosecution’s case.

Finally, addressing the sufficiency of evidence at the close of the prosecution’s case, the court applied the principles of Galbraith and concluded that the judge correctly decided the weaknesses in the identification evidence were issues for the jury, not sufficient to mandate stopping the case.

Conclusion

The case of R v Bogie [2023] EWCA Crim 1280 elucidates the importance of adherence to legal procedures for evidence identification and the pivotal role of the jury in assessing the strength of identification evidence. Despite breaches of Code D, the case affirms that the ultimate determination of admissibility lies with whether the evidence’s exclusion is necessary to uphold a fair trial. The appeal’s dismissal confirms that a breach in procedure does not automatically render a conviction unsafe — the court must establish substantial unfairness or prejudice resulting from such a breach for there to be a substantial effect on the trial’s outcome.