CASE OF PERRY v. THE UNITED KINGDOM
Violation of Art. 8;Non-pecuniary damage - financial award
Georg Ress;Mark Villiger;Nicolas Bratza
7. The applicant was born in 1964 and is currently detained in HM Prison Brixton. 8. In 1997, there were a series of armed robberies of mini-cab drivers in and around Wolverhampton. Each robbery was carried out in the same way by a person posing as a passenger at night. Each involved violence. The first robbery was committed on 15 April 1997 (for which the applicant was later acquitted). On 17 April 1997, the applicant was arrested and agreed to an identification parade on 15 May 1997. He was released pending the parade. 9. On 30 April 1997, a second robbery, later alleged in count 2 of the indictment against the applicant, was committed. On 1 May 1997, the applicant was arrested in relation to that offence. The applicant again agreed to participate in an identification parade to be held on 15 May and was then released. However, on that date, the applicant did not appear for the identification parade but instead sent a doctor's note stating that he was too ill to go to work. A subsequent identification parade was set for 5 June 1997. Notice to that effect was sent to the applicant's residence. He did not appear for identification on the specified date, stating later that he did not receive such notification as he had changed address. 10. On 27 June 1997, the applicant was arrested on an unrelated matter at which time he gave the address to which the previous notification was sent. 11. On 21 July 1997, a robbery, for which the applicant was charged in count 3 of his indictment, occurred. The applicant was arrested on 1 August 1997 and later acquitted on this count. The applicant agreed to stand on an identification parade scheduled to take place on 11 September. On 3 September, the applicant was interviewed with respect to another unconnected matter and said that he would attend the parade on 11 September. On that date, he did not in fact attend. 12. On the 17 September 1997, the robbery alleged in count 4 occurred, while a further robbery alleged in count 5 took place on 24 October 1997. 13. An important part of the prosecution's case rested almost entirely on the ability of the witnesses to visually identify the perpetrator. For this reason, submitting the applicant to an identification parade was of great importance for the prosecution. Given the failure of the applicant to attend the arranged identification parades, the police decided to arrange a video identification parade. Permission to covertly video the applicant for identification purposes was sought from the Deputy Chief Constable for the West Midlands Police Force under the Home Office Guidelines on the Use of Equipment in Police Surveillance Operations 1984. 14. On 19 November 1997, the applicant was taken from Strangeways Prison (where he was being detained on another matter) to the Bilston Street police station. The prison, and the applicant, had been informed that this was for identification purposes and further interviews concerning the armed robberies. On arrival at the police station, he was asked to participate in an identification parade. He refused. 15. Meanwhile, on his arrival at the police station, he was filmed by the custody suite camera which was kept running at all times and was in an area through which police personnel and other suspects came and went. An engineer had adjusted the camera to ensure that it took clear pictures during his visit. A compilation tape was prepared in which eleven volunteers imitated the actions of the applicant as captured on the covert video. This video was shown to various witnesses of the armed robberies, of whom two positively identified the applicant as involved in the second and fourth robberies. Neither the applicant nor his solicitor were informed that a tape had been made or used for identification parade purposes or given an opportunity to view it prior to its use. 16. The applicant's trial commenced in January 1999. 17. At the outset, the applicant's counsel made an application pursuant to section 78 of the Police and Criminal Evidence Act 1984 that evidence of the video identification should not be admitted. The judge heard submissions from the prosecution and defence during a preliminary hearing (“voir dire”) on 11 and 12 January 1999. On 14 January 1999, the trial judge ruled that the evidence should be admitted. When shortly afterwards this judge became unable to sit, the new trial judge heard the matter afresh. In his ruling of 26 February 1999, he found that the police had failed to comply with paragraphs D.2.11, D.2.15 and D.2.16 of the Code of Practice, inter alia with regard to their failure to ask the applicant for his consent to the video, to inform him of its creation, to inform him of its use in an identification parade, and of his own rights in that respect (namely, to give him an opportunity to view the video, object to its contents and to inform him of the right for his solicitor to be present when witnesses saw the videotape). However, the judge concluded that there had been no unfairness arising from the use of the video. Eleven persons had been filmed for comparison purposes rather than the required eight and were all within comparative height, age and appearance. Even though the applicant's solicitor was not present to verify the procedures adopted when the witnesses were shown the videos, the entire process had been recorded on video and this had been shown to the court which had the opportunity of seeing exactly how the entire video identification process had been operated. The judge ruled that the evidence was therefore admissible. 18. The trial lasted 17 days, the applicant and 31 witnesses giving live evidence. During the course of it, the applicant discharged all his legal representatives (leading and junior counsel and solicitors) and conducted his own defence as he was dissatisfied with the way his defence was being conducted. In his summing-up to the jury, the trial judge warned the jury at considerable length about the “special need for caution” before convicting any defendant in a case turning partly on identification evidence and told the jury to ask themselves whether the video was a fair test of the ability of the witnesses to pick out their attacker, telling them that if it was not a fair test they should not give much, if any weight, to the identifications and also that if there was any possibility that the police planned a video identification rather than a live identification to put the applicant at a disadvantage, they could not rely safely on the video identification evidence. The jury were also made aware of the applicant's complaints about the honesty and fairness of his treatment by the police and the alleged breaches of the code. 19. On 17 March 1999, the jury convicted the applicant of three counts of robbery and acquitted him of two others. The judge sentenced him to five years' imprisonment. 20. The applicant applied for leave to appeal against conviction, inter alia, alleging that the trial judge had erred in not excluding the evidence obtained as a result of the covert identification video and that the conviction was unsafe due to significant and substantial breaches of the code of practice relating to identification parades. Leave was granted by a single judge of the Court of Appeal. 21. On 3 April 2000, after a hearing at which the applicant was represented by counsel, the Court of Appeal rejected his appeal, finding that the trial judge had dealt with the matter in a full and careful ruling, that he had been entitled to reach the conclusion that the evidence was admissible and that he had directed the jury to give the evidence little or no weight if it was in any way unfair. It refused leave to appeal to the House of Lords. 22. On 14 April 2000, the applicant applied to the House of Lords. It rejected the application. The solicitors claimed that they were informed on 7 July 2000. 23. Guidelines on the use of equipment in police surveillance operations (the Home Office Guidelines of 1984) provide that only chief constables or assistant chief constables are entitled to give authority for the use of such devices. The Guidelines are available in the library of the House of Commons and are disclosed by the Home Office on application. 24. In each case, the authorising officer should satisfy himself that the following criteria are met: (a) the investigation concerns serious crime; (b) normal methods of investigation must have been tried and failed, or must from the nature of things, be unlikely to succeed if tried; (c) there must be good reason to think that the use of the equipment would be likely to lead to an arrest and a conviction, or where appropriate, to the prevention of acts of terrorism and (d) the use of equipment must be operationally feasible. The authorising officer should also satisfy himself that the degree of intrusion into the privacy of those affected by the surveillance is commensurate with the seriousness of the offence. 25. Section 78(1) of PACE provides as follows: “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.” 26. In R. v. Khan [1996] 3 All ER 289, the House of Lords held that the fact that evidence had been obtained in circumstances which amounted to a breach of the provisions of Article 8 of the Convention was relevant to, but not determinative of, the judge's discretion to admit or exclude such evidence under section 78 of PACE. The evidence obtained by attaching a listening device to a private house without the knowledge of the occupants in breach of Article 8 of the Convention was admitted in that case. 27. The Code of Practice was issued under sections 66-67 of PACE, laid before Parliament and then made a statutory instrument. It provided as relevant: “D:2.6 The police may hold a parade other than an identification parade if the suspect refuses, or having agreed to attend, fails to attend an identification parade. D:2.10 The identification officer may show a witness a video film of a suspect if the investigating officer considers, whether because of the refusal of the suspect to take part in an identification parade or group identification or other reasons, that this would in the circumstances be the most satisfactory course of action. D:2.11 The suspect should be asked for his consent to a video identification and advised in accordance with paragraphs 2.15 and 2.16. However, where such consent is refused the identification officer has the discretion to proceed with a video identification if it is practicable to do so. D:2.12 A video identification must be carried out in accordance with Annex B. ... D:2.15 Before a parade takes place or a group identification or video identification is arranged, the identification officer shall explain to the suspect: (i) the purposes of the parade or group identification or video identification; (ii) that he is entitled to free legal advice (see paragraph 6.5 of Code C); (iii) the procedures for holding it (including the right to have a solicitor or friend present); ... (vi) that he does not have to take part in a parade, or co-operate in a group identification, or with the making of a video film and, if it is proposed to hold a group identification or video identification, his entitlement to a parade if this can practicably be arranged; (vii) if he does not consent to take part in a parade or co-operate in a group identification or with the making of a video film, his refusal may be given in evidence in any subsequent trial and police may proceed covertly without his consent or make other arrangements to test whether a witness identifies him; ... D:2.16 This information must also be contained in a written notice which must be handed to the suspect. The identification officer shall give the suspect a reasonable opportunity to read the notice, after which he shall be asked to sign a second copy of the notice to indicate whether or not he is willing to take part in the parade or group identification or co-operate with the making of a video film. The signed copy shall be retained by the identification officer.” 28. Annex B set out the details for arranging a video identification, including how, the number and appearance of participants etc.