#16093 - Id Evidence - BPC Criminal Litigation (formerly BPTC) 2024/2025

ID Evidence

Intro

• Crim trial: prosecution must prove beyond reasonable doubt that person in dock is responsible for committing crime.

• When ID is disputed, prosecution can establish that D committed the crime in a number of ways, eg:

  • (a) DNA evidence

  • (b) telephone evidence

  • (c) Fingerprint evidence

  • (d) Testimony from witnesses

• Visual ID by eyewitness is one of most common methods proving that D committed the crime.

  • They might recognise the suspect as someone they have seen before, a friend or acquaintance, family member or a stranger they see on bus.

  • OR, may never have seen D before the crime was committed, but were able to give police a description. And may express an ability to recognise the person if they saw them again.

The special need for caution

• Visual ID of suspects or Ds by witnesses has long been recognised as potentially unreliable. Reliability of eyewitness ID has attracted concern for over a century. Is easy for an honest & convincing witness to be mistaken even if the suspect is well-known to them.

• Criminal Law Revision Committee, 11^th Report: Evidence (General) (1972): causes of mistaken iD constituted ‘by far the greatest cause of actual or possible wrong convictions’.

• A confident ID is no more likely to be reliable than a hesitant one.

• Series of miscarriages of justice from inaccurate eyewitness testimony led to a review of investigatory & trial procedure in latter part c20.

• Since then, must has been done to reduce the risks. Since then, must has been done to reduce the risks. 3 safeguards now in place: (1) Pace Code D; (2) Turnbull guidance at trial stage re contested visual ID evidence; (3) rule against ‘dock identification’.

• Safeguards at every stage of process to ensure ID evidence before a jury is as reliable as possible:

  • (a) Investigation stage PACE Code D, instructions to police re how to deal with ID issues.

    • Procedures designed to test a witness’s ability to identify, under controlled conditions, any suspect he may claim to have seen or recognised on a previous occasion.

    • And require witnesses to provide the police with descriptions of any offenders etc they claim to have seen; so that any subsequent ID can be compared with the original description.

    • Any failure to comply with code D must be taken into account by a court and may result in exclusion of tainted evidence.

  • (b) Trial Turnbull Guidelines re contested visual ID evidence, R v Turnbull [1977], CA, guidelines in all cases where the case against accused depends wholly or substantially on evidence of ID which the suspect alleged to be mistaken.

  • (c) Trial rule against ‘dock identification’: prosecution will not invite witnesses to identify D for the first time in court, at least in trials on indictment.

ID evidence and ID issues

• Don’t confuse visual ID evidence with other evidence capable of supporting prosecution case. EGS of NOT visual ID evidence (so Turnbull does not apply):

  • (a) a mere description of the suspect (‘he was 5’7’ with dark hair and blue eyes’)

  • (b) description of clothing/vehicle (‘I couldn’t see his face but he was wearing a purple jumper’)

  • (c) when witness states that the culprit was the driver of a particular vehicle; or the companion of another person (whose own iD is not in dispute).

  • (c) the suspect has a connection to a particular place or others at the scene (‘I thought it was Tony because I know he is always at the Rainforest Café on a Saturday morning’)

  • If there is no ID evidence Turnbull guidelines do NOT apply

• A witness who had made, or who may be able to make, an ID, must ordinarily be invited to take part in a Code D ID procedure if the police have a known suspect available.

  • But inability to make an ID does not prevent the witness giving other evidence that might incriminate D, eg a description of the offence or offender.

• If the accuracy of a purported ID is NOT in issue (as opposed to the honesty/credibility of the accusing witness being in issue) then Code D nor Turnbull apply.

  • In such cases, any attempt to apply Turnbull guidelines would merely serve to confuse the jury by focusing their attention on the wrong issue.

  • EG, if witness claims to have known D well, and for many years, and to have observed him at close range in conditions of perfectly visibility for several minutes, or to have conversed with him in the same room it is unlikely that any ID issue could arise.

• CF, ID issues can easily arise, even where the witness claims to have recognised the suspect/accused as someone already well known to him;

  • and they are not necessarily excluded when where the principal line of defence involves an attack on the honesty or truthfulness of the witness.

  • Conway: ID became an issue as soon as D questioned the witnesses’ ability to recognise him; and ID procedures in Code D should have been followed; and Turnbull would have been applicable.

• So general rule: an appropriate Turnbull warning should be given, even in cases of alleged recognition.

• It does not follow that Code D ID procedure must always be held whenever an ID issue arises, re recognition cases: such a procedure will often serve no useful purpose in a ‘recognition’ case, because the witness (even if mistaken) would almost inevitably ‘identify’ the person he has claimed to have recognised.

The investigation stage PACE Code D

• Code D deals exclusively with the process to be adopted by police where witness purports to identify a suspect OR expresses an ability to make a visual identification.

• Was introduced for 2 reasons:

  • (a) to protect an innocent suspect from an incorrect ID

  • (b) to make a successful ID as watertight and ‘challenge-proof’ as possible

NB, actual contents of Code D is not on syllabus (other than the following);

• PACE Code D, instructions to police re how to deal with ID issues.

  • Procedures designed to test a witness’s ability to identify, under controlled conditions, any suspect he may claim to have seen or recognised on a previous occasion.

  • And require witnesses to provide the police with descriptions of any offenders etc they claim to have seen; so that any subsequent ID can be compared with the original description.

• NB, in recognition cases, Code D may not need to be followed: A formal ID procedure will often serve no useful purpose in a ‘recognition’ case, because the witness (even if mistaken) would almost inevitably ‘identify’ the person he has claimed to have recognised.

Breach of Code D Consequences s78 PACE application

• First issue for a trial judge: to determine if a breach of Code D has in fact occurred

• And if has occurred, whether has caused any significant prejudice to D

  • These issues can usually be achieved without a voir dire (trial within a trial).

  • However, sometimes, when evidence around the alleged breach is disputed voir dire may be required and judge will have to hear evidence under oath.

• If there has been a breach of Code D remedy = D applies to exclude evidence obtained in breach of code under s78 PACE

  • A breach of code does not automatically lead to exclusion of evidence.

  • Key issue - whether there has been any significant prejudice to the accused.

  • If no significant prejudice no case for excluding the evidence.

  • If judge thinks yes, some prejudice, then must decide whether the adverse effect would be such that justice requires the evidence to be excluded; i.e. if the admission of the evidence would have ‘such an adverse effect on the fairness of proceedings that the court ought not to admit it’.

• Each case turns on their own facts

• Court/judge must give reasons for any decision to admit ID evidence obtained in breach of Code D.

• ID evidence will usually be excluded where important safeguards have been flouted, eg the right to a formal ID procedure. D has the right to have the correctness of the visual ID tested under formal conditions.

  • Eg Nagah, conviction quashed; evidence had been admitted derived from a deliberately staged encounter outside the police station; in which he had been confronted by the identifying witness as he left. No ID parade was held.

  • Or failure re requirements that witnesses provide the police with descriptions of any offenders etc they claim to have seen; so that any subsequent ID can be compared with the original description.

• Failure to observe requirements of Code D (eg failing to hold a formal ID procedure) may affect other forms of evidence against D:

  • A careful direction to jury may be needed, so that they fully understand the potential for prejudice caused by the breach/failure.

• If ID evidence is admitted despite a breach of Code D, Jury should ordinarily be told that: ‘an ID 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 that they should take account of that fact in their assessment of the whole case, giving it such weight as they think fit’.

  • Jury should assess whether the breaches were such as to cause them to have doubts about the safety of the identification.

• Failure to comply with Code D may also give rise to ECHR issues, eg in cases involving covert videotaping of suspects; which may be open to challenge under Article 8 if not performed strictly in accordance with domestic law.

Trial stage: Turnbull Guidelines (where wholly or substantially, dispute ID evidence)

• Turnbull (1977, CA): guidance on what judge should say to a jury when a case depended wholly or substantially on disputed ID evidence.

• Also gives guidance to judges on when ID evidence can safely be left to the jury and when a case must be withdrawn to...