Neutral Citation Number: [2010] EWCA Crim 378
Case No: 200906250 D5 

IN THE COURTS MARTIAL APPEAL COURT
Royal Courts of Justice
Strand
London, WC2A 2LL 

Date: Wednesday, 17th February 2010
 
B e f o r e:

LORD JUSTICE HUGHES
VICE PRESIDENT OF THE COURT OF APPEAL CRIMINAL DIVISION 

MR JUSTICE MACKAY 
 
MR JUSTICE LLOYD JONES 
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R E G I N A 

v 

WAYNE DANIEL PHILLIPS
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Mr C Wing appeared on behalf of the Appellant
Mr D Richards appeared on behalf of the Crown 
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J U D G M E N T 

1.	LORD JUSTICE HUGHES:  This defendant was convicted at Court‑Martial of assault occasioning actual bodily harm.  The allegation was that he was one of a number of people who went during the night into the barrack hut, where the complainant was sleeping, and one of two of those who went to the bed, punched the complainant a number of times as he lay there, told him off for "gobbing at my LACs", warned the other occupants of the hut, who had been woken up, that they had heard and seen nothing and should go back to sleep, and then left.  
2.	The defence was that he had not been present.  He said that, to the extent that anyone said that he had been in the hut, they had mistakenly remembered his being there about two hours earlier on an innocent errand.
3.	The defendant was tried, together with another man called McMullen, who in eventual course was acquitted by the court.  
4.	The injured man insisted, plausibly or otherwise we do not know, that he could not remember the following morning what had happened, that he thought he had fallen out of bed and had no idea who had injured him.  The only thing that he did say was that the speaker of the two visitors spoke with a Liverpool accent.  That is true of the defendant but no doubt true of other people as well.  Indeed, the complainant, if anything, tended to exonerate the defendant because he said that he knew him and would recognise him.  
5.	There were, however, four people present in the hut who gave some evidence of what they saw.  Their names were Baldwin, Sheppard, Chaisty and Benjamaa.  On behalf of the defendant, Mr Wing's argument focuses upon a narrow point relating to the evidence of Benjamaa.  He contends that that witness' evidence identifying the defendant as one of the two assailants was inadmissible because it was based upon hearsay.  The reason why that suggestion is made is that it transpired, at a very late stage in the witness' evidence and after he had been recalled, that he had not known the surname of the person who he was saying was the assailant until some time after the incident in question.  His evidence was that he had been on the same exercise as the person he was saying was the assailant for very nearly a week.  His evidence was that he had seen him about a couple of times per day, he knew that he spoke with a Liverpool accent, he knew that he was a member of the Support Weapons Flight and he knew that his nickname was Scouse, but he did not, until after the incident, know his surname. 
6.	It does not follow from those facts that this is an identification inadmissible because it is hearsay.  An identification certainly can be inadmissible by reason of hearsay.  If the witness has not seen the assailant but asserts that he has been told by somebody else that the assailant is X, that, of course, is hearsay.  That, however, was not this case.  In this case, the identification was not based upon hearsay, the only thing that was hearsay was the attribution of the surname.  The witness had always been clear who it was he saw.  It was the person that he knew as Scouse from the Support Weapons Flight.  The only thing that he had not known was the surname.  
7.	It is no doubt true that the attribution of the surname in due course was based upon what the witness was told by others.  Knowledge of a surname almost always is.  Very few people know of their own uninformed knowledge what another person's surname is.  A parent will, and so will somebody who has seen the person in question habitually answering to a particular surname, but most of us know other people's surnames, and other names for that matter, because we have been told by other people that that is the name they go by.  Moreover, the evidence of reputation for identity was always a common law exception to the rule against hearsay and is preserved by section 118(1) rule 3(c) in the Criminal Justice Act 2003.  
8.	In the present case, there was really no dispute that Benjamaa recognised the person who is in fact the defendant.  The case which was put on the defendant's behalf to the witness was that he had indeed seen Phillips in the barrack hut that night but that that had been approximately two hours earlier on the occasion of an entirely innocent errand.  That raised an issue of fact which had to be decided by the board.  Benjamaa was firm in his assertion that that was not so and that what he had seen was the defendant at the bed of the complainant at the time of the assault.  But the issue demonstrates that this was not a case in which the identification of the defendant was founded upon hearsay.  The only thing that was founded on hearsay was the attribution of the surname and the attribution of the surname by reputation is and always has been an exception to the rule against hearsay.  If the exception did not apply, section 114(1)(d) of the Criminal Justice Act 2003 undoubtedly would have justified the admission of the evidence and there could, in the circumstances of this case, have been no realistic basis for opposing it.  
9.	In those circumstances, it is not necessary for us to examine the alternative submission on behalf of the Crown that the evidence of other witnesses was sufficient to demonstrate that the conviction of the defendant is safe.  It is certainly true that there was evidence of at least two other people which very significantly supported the evidence of Benjamaa, including that of Sheppard, who on any view knew the defendant well and identified him as being one of those responsible for the incident.  That Sheppard had been prepared to concede that he might have misread his watch as to the time of the incident would not have prevented the board from relying on his evidence, but it is not necessary to examine the strength of the other evidence because the evidence of Benjamaa was not inadmissible.  If it had been, we take the view that, despite the strength of the other evidence, it might have been improper for this court to say that the board would necessarily have come to the same conclusion in the absence of Benjamaa's evidence, but that does not arise for the reasons which we have given.  
10.	In future cases, careful consideration ought to be given at the investigation stage to whether an identification parade is appropriate, but that does not affect the outcome of this appeal, which must be dismissed.