Legal updates and commentary
From the Court of Appeal of the Commonwealth of the Bahamas
Appellant was convicted of armed robbery. The Privy Council allowed his appeal and declared the conviction unsafe as the sole witness had not participated in an identification parade, and had identified the appellant based on a dock identification only. The judge was held to have erred in exercising her discretion to allow the dock identification and her summing up was held to be deficient in not warning the jury of the dangers of a dock identification.
Key words and phrases – dock identification, identification parade, discretion of trial judge, summing up.
The case was heard by Lord Hope, Lord Mance, Lord Dyson, Lord Sumption and Sir Stanley Burnton
Judgment was Delivered By Sir Stanley Burnton on 10 May 2012
 UKPC 12
Privy Council Appeal No 0112 of 2010
Two men committed an armed robbery in the Bahamas. One of the robbers was armed with an Uzi-type automatic firearm; the other had a shiny or chrome handgun.
The Appellant was arrested along with Roland Cartwright and Devaughn Rolle outside a house. Upon arrest, the Appellant was found in possession of a silver and black handgun and two items of jewellery, which were later identified as items stolen during the robbery. Other items stolen in the robbery were also found in the house. The Appellant was injured during the arrest and was admitted to hospital for treatment.
An identification parade was held. Both Cartwright and Rolle participated. The Appellant was in hospital, and did not participate. Six witnesses to the robbery attended the parade. Two of them identified Cartwright as one of the robbers. They did not identify Rolle. The other witnesses who attended the parade made no identification.
The Appellant, Cartwright and Rolle were jointly charged with ten counts of
armed robbery. The Appellant was also charged with one count of possession of a firearm with intent to endanger life on and two counts of receiving stolen property. The receiving counts were alternatives to the armed robbery counts.
At the trial, a witness, Larry Fernander was called. Mr. Fernander had not been invited to attend any identification parade. He testified that the robber with the machine gun had taken his bracelet, which was one of the items recovered from the house in Haven Road, together with his wallet and mobile telephone. He said he had seen his face, and could recognise him if he saw him again.
Counsel for the Appellant objected to any attempt at a dock identification but the judge decided to exercise her discretion and allow the dock identification.
Mr. Fernander told the court that the robber he could identify was the man with the hand gun. The witness then identified the Appellant as the man with the chrome hand gun. However, in cross examination Mr Fernander reverted to saying that the man he had identified was the man with the machine gun.
The judge later rejected a no-case submission on behalf of the Appellant, but upheld the submission made on behalf of Nolle, and withdrew the counts charging him with armed robbery. The counts of receiving remained against him, and one of those counts remained against the Appellant also.
The Appellant gave alibi evidence and contended that the gun and the stolen property had been planted on him by the police. He called one witness in support of his alibi.
During summing up, the judge withdrew from the jury the count charging the Appellant and Cartwright with receiving stolen goods.
Lord Burnton relied on Holland v HM Advocate  UKPC D1, 2005 SC (PC) 1, 17, para 47 in stating that:
“… the fact that the circumstances of a witness’s identification of a person were such as to enable him to make a reliable identification in an identification parade does not render a dock identification by the witness reliable…It further follows that the normal and proper practice should be to hold an identification parade, and that in any case where a dock identification is admitted the judge should warn the jury of the undesirability in principle and dangers of a dock identification and give further directions along lines set out in Aurelio Pop v The Queen  UKPC 40, para 9, Pipersburgh v The Queen  UKPC 11, para 9 and Tido v The Queen  1 WLR 115  UKPC 16, para 17…”
On the issue of the exercise of the judge’s discretion in allowing a dock identification, the Privy Council said that:
“The decision whether to admit dock identification evidence is one for the trial judge, to be exercised in the light of all the relevant circumstances. Ultimately the question is one of fairness, bearing in mind the judge’s ability and duty to give appropriate directions in summing up…”
“Where there has been no identification parade, then whether there is any and if so what good reason for that is a material circumstance. Where, for example, the uncontroversial evidence is that the defendant was well known to the witness before the offence, and the witness has previously identified him, a dock identification may also be no more than a formality. The explanation for the failure to hold an identification parade may, as stated, be a relevant factor favouring the admission of a dock identification.”
In the instant case, the Privy Council rejected the appellant’s treatment in hospital as being a sufficient reason for no ID parade being held, noting that this did not explain why an ID parade was not held after he was released from hospital.
They said the judge erred in considering that there was a good reason for not
holding an ID parade for the Appellant. As she did not address the jury on
up the risks of a mistaken dock identification, the Board noted that she may not have had these in mind in exercising her discretion and deciding to admit the dock identification. The only other evidence as to the Appellant’s involvement was consistent with his having been no more than a receiver.
“The judge thus erred materially in the exercise of her discretion. The Board’s view is that a dock identification should have been regarded as inadmissible in all the circumstances of this case.”
The summing up was also held to be deficient in failing to warn the jury of the dangers of the dock identification. The Privy Council said the evidence against the Appellant was as consistent with his having been a receiver, assuming dishonesty, as with his being a robber and that it was impossible to conclude that if there had been no dock identification, or if the jury had been properly directed, the Appellant was bound to have been convicted.
The Board stated that although that it was unwise of the judge to withdraw the count of receiving, if the evidence of the Appellant’s participation in the robbery had been sufficient for the jury to have convicted of that offence, the Board would not have ruled the conviction unsafe only because of the withdrawal of the receiving count.