#10515 - Identification Evidence - Criminal Procedure and Evidence

It is not as reliable as most think.

Huge amount of distrust for ID evidence from this case. 30 people swore in court that it was him and they were all wrong.

• Detailed records should be kept of witness’ initial identification – D.3.1

• Circumstances of the identification should be kept in mind.

  • Alexander and McGill: Robbery, sister of the victim went through facebook photographs with him and they found people tagged that they felt were the robbers. Police also did this but did not record how many photographs he looked at or what poses they were in.

    • The Court concluded that you have to be very careful in circumstances like this as to how many photographs are viewed etc because things like aggressive posing can influence the defendant’s purported identification.

    • Images viewed and statement in relation to what happened is necessary.

D.3.4: “known and available”

• ‘known’ = sufficient information to justify arrest of a particular person for suspected involvement in the offence

• “available” = immediately available or will be within a reasonably short time to take part in identification procedures which are practicable to arrange.

Steps that can be taken when the witness is not known and available:

• D.3.2: can take witness around neighbourhood in hope of seeing the offender again

• Annex E on showing photographs: can show photographs, E-Fits etc.

Potential bad character issue:

If a witness is shown a book of mugshots and identifies the defendant, will evidence of that identification be admissible at trial?

• Jury would question why the police had the photo.

• Lamb and Green show that you cannot admit mugshots used to identify suspects. Video ID parade recording is therefore now used.

  • However two qualifications to this (1) where D refuses ID parade (Lamb) and (2) where there is no prejudice (Allen).

D.3.4 defines ‘known and available’ (Above)

1. When to hold an identification procedure (D.3.12 – D.3.13)

3 situations where ID procedure required – Where the suspect disputes the allegations and:

1. Witness purports to have identified the suspect as the offender (D.3.12(i))

2. Witness believes (or there is a reasonable prospect) that she could identify the offender if given the opportunity (D.3.12(ii))

3. Officer in charge thinks it would be ‘useful’ (D.3.13)

No need to hold an ID procedure where it would be impracticable or serve no useful purpose.

Where a suspect insists that an identification procedure be held:

• Forbes: Man subjected to attempted robbery and police drove him around looking for the perpetrator, during which he picked out F. F asked for an identification procedure but the police saw no reason to do one.

  • HL in this case said that the Code means exactly what it says – if there is a dispute you must hold an ID procedure.

• Forbes occurred under old Code, wording has now changed, but Stark thinks that if D asks for a procedure then there will be one.

• Abbott: No need for procedure where the witness was only able to identify a distinct piece of clothing. Pointless to have one.

When applying s.78 PACE, lack of ID procedure is just a factor to consider, does not render ID inadmissible automatically.

Birks

• Argued it would be better to come down more heavily in cases of breach given the unreliability of this kind of evidence.

• There are still cases where ID procedure not necessary, and these should be incorporated into the Code:

  • Where they would be pointless – e.g. where the witness can identify clothing but not the suspect himself

  • Cases of pure recognition of someone the witness knows personally.

2. The type of identification procedure to be used

VIPER (Video Identification Parade Electronic Recording) is preferred (D.3.14)

• Brown: can take place well after the event.

• Procedure in Annex A.

  • At least 8 ‘foils’ (so 8 people + suspect) (A2)

  • Must look through twice before making identification (A11)

Other procedures in descending order of desirability:

1. “live” ID parade (Annex B)

2. Group identifications (Annex C)

3. Confrontation (Annex D)

Note that voice identification procedures are not set out in Code D.

Refusal to participate:

• Refusing to take part renders someone known and unavailable = covert identification using photo of suspect and other 8 foils

• Code D.3.21

3. Other Matters

Where the witness’ identification is “qualified”?

• George: Crimewatch presenter murdered in 1999. Between the offence and ID procedure he grew a full beard and then refused to take part in the parade when it happened, so covert VIPER used. They had to use foils with beards. This meant that witnesses had to consider what each person in the VIPER looked like without a beard.

  • Led to witness saying they were 95% sure – a qualified identification.

  • CA: it is fine to allow witness to explain why they only made a qualified identification, so long as that evidence is not the only basis of conviction.

Are dock identifications allowed?

• Very restricted.

• Neilly: Only use dock identifications where there has been proper ID in the past. Where there has been an identity parade you should only do dock ID when its fair.

• Barnes v Chief Constable of Durham: In driving offences in magistrates courts there can be dock identification

Identifying from CCTV?

• Ali: Police looked at CCTV of train station where assault took place, picked out D from group who boarded train and thought they could say, due to his clothing, that he committed the assault with some certainty. Watched it for long periods of time to be sure.

  • Admissible, just warn jury of risks.

• Chaney: Police officer watching CCTV and thought it might be D. Asked second officer who was able to say it was him due to personal knowledge of D.

  • Admissible because of past dealings with D – this made it more reliable. Add jury warning.

Errors in identification procedures – do they result in exclusion of the evidence?

• Quinn: Robbery charges, discrepancies between witness’ descriptions and his actual features. Argued on appeal that the conduct of the ID parade breached Code D in 6 ways.

  • Other members of parade all different ages, dressed differently, only D had swollen jaw; witnesses unsupervised when not at parade; officer did demonstration parade shortly before; officer remained in the room; records not filled correctly and witnesses did not walk along parade twice.

  • CA allowed the appeal – said first breach was not really a breach, and that the others were, especially the fact they didn’t go up the parade twice.

    • BUT said that could not conclude that no reasonable judge could have decided not to exclude the evidence, so the judge’s discretion in that area would not be interfered with. (high standard – stark)

    • However, they did find that the judge did not mention the breaches to the jury so the conviction was unsafe. Trial judge should explain the deficiencies in the ID procedure so the jury can tell what the weaknesses are.

• So you need to make sure the jury are directed as to any Code D breaches.

• Devil Committee Report of the Committee on Evidence of Identification in Criminal Cases – April 1976.

• Before Parliament considered the proposals, it was followed by the CA decision in Turnbull, in which 4 appeals were heard together.

Turnbull facts:

• In Turnbull itself the defendants had worked out that it would be difficult to break into the night safe at a bank, so they wrote “out of order” on the vault and said money should be deposited in the front door.

• Police identified them from a distance in bad lighting.

• The evidence was then argued to be insufficiently credible to use as ID evidence.

Turnbull basically requires the court to either halt cases in which the Crown’s evidence is largely identification evidence, or to deliver a “Turnbull direction”

Sometimes the trial judge will have to withdraw the case from the jury where the evidence in the case is extremely weak:

• Weak, e.g “”when it depends solely on a fleeting glance or on a longer observation made in difficult conditions”

• In such cases, the judge should withdraw the case from the jury and direct acquittal unless there is corroborating evidence to support the identifications.

• If corroborating evidence, does not have to be withdrawn. The trial judge should identify the evidence he adjudges capable of supporting the evidence of identification.

Daley:

• Involved direction of acquittal – could not be established that a shopkeeper, who had identified D as the murderer of his wife, had had adequate opportunity of viewing the killer from his hiding place. There was no other evidence implicating D in the crime.

  • Privy Council said the judge should have withdrawn the case from the jury.

• Lord Mustill reflected on the power here and how it fits with Galbraith

  • Under Galbraith there is a submission of no case to answer where the judge, taking the evidence at its highest, feels that a properly directed jury could not reasonably convicted.

  • Under Turnbull the court is staying proceedings because the ID evidence raises grounds for concern.

  • Munday: might be that it is just an exception to Galbraith

  • But Lord Mustill said that Galbraith was there to prevent the judge substituting his own opinion on the credibility of the Crown’s evidence for that of the jury, Turnbull is about the reliability and credibility of identification evidence. It is preventing the jury from acting upon a type of evidence...