This was a cold case involving an allegation of abuse which occurred in 1996 but was not reported until 2018. The circumstances of the reporting arose following a search of Facebook where upon the victim said she immediately recognised the offender.
It was not disputed that there was breach of the code in that a Viper procedure should have been conducted. A Section 78 application was made to exclude the evidence and the Judge agreed that a Viper procedure should have been conducted and that was compounded by the fact that the identification of the defendant was hearsay. However, the judge was also satisfied that the Facebook identification was admissible notwithstanding the failure to conduct an identification process. The issue was one of the weight of the evidence, in the context of the other identification evidence. The judge held that, properly and carefully directed, the jury was in a position to form a fair and considered view about this evidence.
The Court concluded that the directions given by the Judge were conspicuously clear and fair. That this came down to whether the judge had fairly exercised his discretion:
“22. It follows that whether to exclude the Facebook identification evidence and its consequences for the trial was a matter of judgment for the Judge under Section 78PACE. The question on this appeal is therefore whether the judge erred in the exercise of that judgment. Prima facie, the appeal court is slow to disturb such an exercise: see for a recent illustration LT  EWCA Crim 58 which concerned a Facebook identification that the Court held had been wrongly excluded.”
At paragraph[ 36] the Court, having recited section 78 PACE,stated:
“36. Whether the court hearing an application under s.78 is exercising a discretion or a judgement, is a matter of debate. However, it is not a matter that needs to be resolved in this case. If it is a discretion it is a broad discretion, and if it is a judgement it is the judgement which the Court of Appeal recognises is primarily a matterfor the judge in the Crown Court. In either case, this Court is reluctant tointerfere with such decisions in relation to these matters. For a discussion of the law, see for example, Blackstone Criminal Practice 2019 §F2.7.”
The Court noted that the Judge summarised the defence submissions and noted that the Prosecution accepted the thrust of the criticisms made, but countered that the Facebook identification was admissible in principle, that the mere fact that there was a breach of PACE was not determinative, that there was other admissible and inculpatory identification evidence before the court, and that all of this was a matter of weight for a properly directed jury to consider and evaluate.
In answer to whether the judge got his decision right the Court observed that:
“33. It follows that this is a case where the nub of the challenge is squarely to the exercise of judgment or discretion. At base the issue is a short one: was this, as the judge held, a matter of “weight” for the jury or was it, as the Appellant submits, one where the circumstances taken in the round were such that the judge could only properly have come to one conclusion, namely that the Facebook identifications should be excluded and, since the remainder of the case was weak, the entire case should be withdrawn from the jury.
34.We are clear that the judge was entitled to arrive at the conclusion that he did. We are not in a position to substitute our view of the evidence for the judge’s considered conclusion as to the probative weight of the Facebook identifications standing alone and/or in the context of the evidence as a whole.”
Finally in the face of arguments strongly put that the breach removed any safeguards and the Court should consider the conviction unsafe the Court reminded itself of R v Pope noting that:
“Finally, we would refer to the observations of this court in R v Pope EWCA Crim 2241 at paragraph , which seem to us to be apposite in this case where the jury was very clearly directed:
“As a matter of principle, in the administration of justice when there is trial by jury, the constitutional primacy and public responsibility for the verdict rests not with the judge, nor indeed with this Court, but with the jury. If therefore there is a case to answer and, after proper directions, the jury has convicted, it is not open to the Court to set aside the verdict on the basis of some collective, subjective judicial hunch that the conviction is or maybe unsafe. Where it arises for consideration at all, the application of the “lurking doubt” concept requires reasoned analysis of the evidence or the trial process, or both, which leads to the inexorable conclusion that the conviction is unsafe. It can therefore only be in the most exceptional circumstances that a conviction will be quashed on this ground alone, and even more exceptional if the attention of the Court is confined to a re-examination of the material before the jury.”
The Court making clear that only in the rarest of circumstances would the Court ever consider intervening and certainly not against the face of evidence which represents a case to answer. There was in this case evidence to be considered and the judge had carefully directed the jury as to the Facebook evidence and how they had to carefully approach it.