At the start of the trial, Mairi made an application to exclude supposed identification evidence under s78 PACE 1984. The application was opposed by the prosecution and resulted in a voir dire hearing.
The Court ruled on Mairi's application in two stages:
Firstly, Mairi argued that Code D of PACE was engaged because her client did not accept that he was captured in any footage committing an affray. The Court agreed and ruled that Code D was engaged.
Secondly, the voir dire hearing took place to determine whether Code D had been breached and if so, the extent to which this prejudiced her client.
Mairi cross-examined the police officer in charge of the case regarding the supposed identification evidence. Her client admitted being present on the platform when the fight took place but denied engaging in any violence. It is important to remember that just because a person's presence at the scene of a crime is admitted, the Crown must still prove their involvement in the offending behaviour for which they are charged.
After hearing evidence and extensive submissions on the law, the Court allowed Mairi's application. This resulted in the Crown offering no evidence against Mairi's client and he was acquitted.
Identification is a fundamental part of any criminal prosecution. Where ID is disputed, it should be raised from the offset in the defence statement, and it is vital to check closely if Code D of PACE has been complied with. Failure to comply with Code D does not automatically render the evidence inadmissible.
It is useful to look at Chapter 3 of Archbold which sets out the test to be applied where there has been a breach of Code D. It says this:
Although every case has to be determined on its own facts, it is submitted that whenever Code D is breached, the resolution of two preliminary issues should be of considerable assistance in determining the fundamental issue as to the fairness of the proceedings.
First, did the breach occasion the mischief which the code was designed to prevent? If so, the identification may be flawed.
Secondly, was the breach caused by a flagrant disregard of the code, or was the breach, or the cumulative effect of more than one breach, capable of engendering considerable suspicion that the identification procedure was unfair? If so, even if the breach of a particular provision did not lead to the mischief intended to be prevented, the evidence of identification might be so tainted with unfairness that it should not be admitted, as in Gall and Finley.
Mairi's client had paid a substantial contribution towards his legal aid and this will be refunded to the client as a result of his acquittal.
Commenting on the outcome, Mairi's client said:
'Thanks again for all your help and hard work throughout the case. Thought you were brilliant yesterday! It’s much appreciated and a positive outcome getting me the result we were after all along!'
Mairi was instructed by Nicholas Moore of Kay Boswell Solicitors in this case.