Luke Martin [2019] EWCA Crim 1564

The sole ground pursued in this renewed application was that the judge was wrong not to exercise his discretion under s78 of PACE to exclude identification evidence. The defence argued that there was reason to think the identification was not the result of an unaided recollection. The complainant’s mother had communicated with the appellant’s neighbour after putting a photo of her son on social media. They discussed descriptions of the make who assaulted her son and, on the other hand, the neighbour. It was suggested the neighbour might have been biased against the appellant and that the identification was tainted.

The judge rejected the application. The defence argument was that communications between the complainant and the appellant’s neighbour raised a question as to the identification he made. This was a question that could be, and was, explored at trial.

Held: the judge was entitled to find as he did, and there was no reason to exclude the evidence.