#19557 - 11. Criminal Litigation 2023 2024 Identification Evidence - BPC Criminal Litigation (formerly BPTC) 2024/2025

Identification issues:

• PACE Code D:

  • Designed to test a witness’s ability to identify any suspect and require the witnesses to provide police with a description of any offenders they claim to have seen.

  • Failure to comply with Code D must be taken into account by a court and may result in the exclusion of tainted evidence. Failure does not inevitably lead to exclusions, only if significant prejudice is caused to D.

  • If it is clear that no prejudice resulted from a breach or failure to observe Code D, there will be no case for excluding the evidence.

  • The jury must ordinarily be told 'that an identification procedure enables suspects to put the reliability of an eye-witness's identification to the test, that the suspect has lost the benefit of that safeguard, and that they should take account of that fact in their assessment of the whole case, giving it such weight as they think fit.’

• Turnbull:

  • Provides guidance to judges faced with contested identification evidence.

  • This should be given, even in cases of alleged recognition where honesty is in issue, but not where accuracy is not in issue.

  • Where the case depends wholly or substantially on the correctness of an identification which the defence alleges to be mistaken and there is poor quality identification evidence, the case can be left to the jury providing that there is evidence which is capable of supporting the correctness of the identification evidence and the Judge gives a Turnbull direction.

• Rule against dock identification:

  • In trial on indictment, the prosecution will not invite witnesses to identify D for the first time in court. Has little application to the mags’ court.

  • The use of dock identification may be grounds for a successful appeal against conviction.

  • But the dangers inherent in a dock identification may not be present where the witness says, 'the person whom I have already identified to the police as the person who committed the crime is the person who stands in the dock.’

  • There is a danger that a witness may sometimes make a dock identification even where none has been solicited by the prosecution, if this happens, it may be necessary for the trial judge to warn the jury against giving it any weight or credence.

  • If D is recognised outside of the court, it may prove necessary in some cases to exclude such evidence.

  • So, dock identification can be done, but it is strongly frowned upon.

Not identification evidence:

• Description of culprit’s clothing.

• Evidence that the culprit was driving a certain vehicle.

• Evidence that the culprit was the companion of another person whose own identification is not in dispute.

Turnbull guidelines:

• First, whenever the case against an accused depends wholly or substantially on the correctness of one or more identifications of the accused which the defence alleges to be mistaken, the judge should warn the jury of the special need for caution before convicting the accused in reliance on the correctness of the identification or identifications.

  • In addition he should instruct them as to the reason for the need for such a warning and should make some reference to the possibility that a mistaken witness can be a convincing one and that a number of such witnesses can all be mistaken. Provided this is done in clear terms the judge need not use any particular form of words.

• Secondly, the judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made.

• Finally, he should remind the jury of any specific weaknesses which had appeared in the identification evidence.

Commentary:

• If the quality of the identification evidence is poor, the judge should acquit unless there is other evidence which goes to support the correctness of the identification.

• The trial judge should identify to the jury the evidence which he adjudges is capable of supporting the evidence of identification. If there is any evidence or circumstances which the jury might think was supporting when it did not have this quality, the judge should say so.

• A Turnbull direction need not be provided unless the prosecution case depends wholly or substantially on visual identification, no form of words needs to be used.

  • A particularly robust Turnbull direction may be needed where for one reason or another the prosecution adduce hearsay evidence of identification in the form of a statement from a witness who is not available to testify at trial.

  • Not necessary in cases identifying motor vehicles, but should still be drawn to the jury’s attention.

• The absence of an adequate Turnbull direction, tailored to the facts of that case, will usually require a conviction to be quashed as unsafe.

• A Turnbull direction is not appropriate in relation to the identification evidence supporting the defence, but it may be appropriate to remind the jury of the need to be cautious in assessing such evidence given that honest mistakes can be made.

• Where D’s presence at the scene of the crime is admitted, the judge can draw the jury's attention to the possibility that the witness may have been momentarily unsighted, and this will be sufficient. However, in some circumstances a Turnbull guidelines will still be necessary.

Supporting evidence:

• Evidence capable of supporting a disputed identification may take any admissible form including:

  • D’s bad character or previous convictions;

  • Analysis of cell site and mobile phone date;

  • Self-incrimination; and

  • Evidence of identification by other witnesses.

• The judge must warn the jury against reliance. A prior discussion between judge and counsel is strongly advisable.

• It is permissible in appropriate cases for two or more disputed identifications of D to be treated as mutually supportive. Putting it shortly, an identification of a suspect by two different witnesses carries more weight than one.

  • The jury must consider the quality of each witness’s evidence of identification separately.

  • Where W1's identification of D in respect of one offence and W2's identification of D in respect of a different but strikingly similar offence committed on another occasion are treated as mutually supportive, fresh evidence tending to prove that W1 identified the wrong person must also tend to undermine the reliability of W2's identification in respect of the other offence.

• Where a judge decides that the identification evidence in a given...