#16774 - Identification & Expert Evidence - Criminal Procedure and Evidence

Identification evidence

Identification evidence is inherently unreliable

Several grave miscarriages of justice e.g Adolf Beck & Motton

Devlin Committee 76: reported it carries a special risk of wrong conviction

Value of evidence of identification v difficult assess & no way of deterring mistakes - witnesses normally confident of who they saw, even if mistaken

Since, courts & legislature have tried to reduce risk - Turnbull 76 + PACE Code D

R v Turnball (CA, 76): basically implemented Devlin’s recommendations

Imposes duty:

to warn if prosecution relies wholly/substantially on contested ID evidence,

or to withdraw case from jury if ID evidence poor & unsupported

note judicial direction needs be clear/compartmentalised (Servis)

Daley: shopkeeper identified D as killer but only saw from concealed hiding place - not good view - was basically only evidence against D - had to withdraw

Dassett 13: witness was only piece of evidence but had good look for several minutes - no problem

but as pointed out by Lord Steyn in Mills Turnbull is not a statute

Judge still has broad discretion to do in own way but should comply with sense & spirit of guidance in Turnbull

Turnbull explains form of warning, now in specimens directions:

Special need for caution & give reason

Give circs of ID & reliability of recall - explain specific weaknesses of the ID

Itemise potential ‘supporting evidence’

If false alibi - say this doesn’t necessarily = guilt (plenty of people do this)

If evidence obtained in breach of Code D & admitted, comment

Pattison & Exley 96 no mandatory requirement of separate summary in every case but if given, must be complete & deal with all aspects

Particularly emphasise specific weaknesses

Nash: importance of the direction emphasised - ensure full force of Turnball conveyed

Exact words irrelevant but ensure summing-up exposes jury to dangers Turnball sought address

Might think withdrawing case might conflict with ‘no case to answer’ Galbraith

but PC in Daley said compatible

If courts fail warn when should have, appellate courts will consider it seriously

Reid v R 79: allowed appeal (but no retrial)

Shand v R 96: only rarely should court dispense with the direction even if only ID witness’s credibility in issue

When is Turnball warning necessary?

note duty to warn only applies to visual ID cases

Atkinson 87: palm-print - Turnball not required

Browning: car ID - Turnball warning not necessary here

Conibeer 02: necessary as D admitted there, q was what he did

Huddart 99: no Turnball warning/procedure where is a dog and D, the owner, was convicted for not keeping him under control!

1. supporting evidence:

1. Corroboration (Turnbull) - things like DNA etc

2. Other IDs: Devlin Committee said shouldn’t

• but Weeder 80 said yes - 1 witness’ statement may support another

• Pattison & Exley 96: 2/more positive IDs - jury must be warmed

3. Odd coincidences e.g Penny 92 one of juror’s randomly knew public toilet mentioned was closed at time, undermining story

4. False alibis/Alibis: Lesley 96 judge should routinely tell jury that alibi sometimes invented to bolster a true defence

• More generally lies can support a visual ID but need Lucas direction on how jury can use lies!

5. Propensity evidence: s.101 CJA 03

2. fleeting encounter vs recognition

   Turnbull said remind jury mistakes sometimes made even where witness purporting recognise s.o he knows

   Ley 07 ‘There are recognition cases and recognition cases’ - degree of familiarity & circs of ID are relevant

   May get probs where police ‘recognises’ D - has connotations that D is a criminal as they are known to police, or where ID’ d police photos e.g Campbell

   Must comply with Code D - just need explanation with as little prejudice as possible as to how know it’s him - don’t need disclose full record

   Note some evidence from LSE suggests conviction rate higher where Turnbull warning given - may need question if it achieves what intended!

   Taylor v CC of Cheshire 86: shoplifting - CCTV - is a fleeting glimpse any less fleeting because it has been played again & again? Not answered in case but may suggest Turnbull direction unnecessary….

3. Means of identification

1. Identification procedures

• Set out in Code D PACE 84 - latest version 2017

• Previous version already ended primacy of ID parade

• Police figures suggested half of ID parades cancelled because D didn’t show up/refused

• Video IDs cancelled in only 5% cases - Valentine & Heaton suggest fairer then live - by 2004/5 98% ID parades conducted using video tech - saved lot of time & 143m

• Originally had to hold ID parade whenever suspect disputes ID & consents - or where PC considers useful & D consents

• Para 3.12 If before any ID procedure has been held

1. Eye-witness has suspected/purported to have identified them

2. There’s eye-witness available who expressed ability identity suspect, or

3. Reasonable chance of eye-witness being able identify suspect

• And eye-witness in a-c not been given opp identify suspect in 3.5-10 procedures, ID Procedure held whenever suspect disputes ID unless not practicable/serves no useful purpose in proving/disproving D’s involvement

• e.g where D admits bring at scene & eye-witness doesn’t contradict

• or where not disputed D well known to W

• 3.13 adds, may be held if officer in charge considers useful

• 3.11 when ID procedure required, must be held ASAP in interests of fairness to suspects & witnesses

• note done away with consent requirement/doesn’t specify - D can refuse but consequences

• 3.14 says initially offer video ID unless not practicable, ID parade practicable & more suitable, or Para 3.16 applies - thus preference to vid ID

• 3.5 Video ID = W shown moving pictures of known suspect, together with others who resemble D

• 3.7 ID parade = line of at least 8 plus D (/8 others resembling D)

• Normally 1 suspect per parade but if 2 suspects, can do 1 parade with at least 12 others (where the 2 suspects look similar)

• 3.16 group ID = when witness sees D in informal group - if officer thinks more suitable than video or parade & considers it practicable - 3.9

• 3.15 if D refuses first procedure, can give reason & get advice & may make rep as to why another method should be employed - officer may select another if considers suitable & practicable

• 3.17 means if D refuses cooperate, refusal may be given in evidence at trial & police can use covert methods to identify him

• 3.21 if suspect known but unavailable, can use still images if necessary - can be obtained covertly

• 3.23 if none other options practicable, officer can resort to confrontation - doesn’t require D’s consent

• but can’t use force - Jones & Nelson last resort

• note ID procedure meant test witness’ ability pick person out, so not needed if IDs D through circumstantial evidence e.g Parry v DPP - identified by yellow jumper & car reg

• Failing hold procedures of failure warn jury of that failure may -> quashing e.g Gojra 10

• Informal ID allowed under 3.2 e.g Hickin 96 - assault Vs taken in police car to look for their aggressors - subject to same procedures as above under Code D

• Some forms of video ID not covered by Code D e.g Jones 93 pub doorman viewed vid of people entering pub to ID assailants - said equivalent to street/group ID

• When interpreting/applying Code D, remember purpose = fair procedure & getting reliable evidence

• Forbes 01 HL said Code D = intensely practical & can’t read exceptions into 3.12

• Must be given parade if asks unless not practicable!

• Nicholson 2000 V attacked from behind so said couldn’t make ID - no need do procedure - would be futile - hence 2nd part of 3.12

• John v Trinidad & Tobago 09 PC gave some guidance - said where witness & suspect well known to each other, no need for ID procedure - if W claims know D but D denies then if conclude some value in parade to test the ID then ask if failure = serious miscarriage

2. Dock identifications

• Only normally acceptable if witness already identified D at ID procedure

• Not really approved of but technically admissible - Fergus 92

• Will only not be permissible in exceptional circs - Tido v R 11

• but Lord Rodger in Holland v HM Advocate 05 - Scottish case but same applies

• danger: dock ID lacks safeguards offered by procedures & position in dock increases risk of wrong ID (due to human psychology )

• Especially risky where failed ID in ID parade - q is whether unfair under Art 6

• Rules tend to be more relaxed in magistrates - Barnes 98 - said if every careless driving case had gone through ID parade, process of justice would be impaired

• Nonetheless, clear court may need revise this q

• For now: dock IDs - not inadmissible per se. - judges have discretion allow (prejudicial v probative)

• Remind jurors/justices of dangers

6. Photographic evidence

• Code D para 3.3 says W can’t be shown photos, computerised/artist’s composite likeness etc (inc E-fit images) if identity known to police & suspect avail for vid/parade/group ID

• If suspect’s identity unknown, showing images to get ID evidence must follow Annex E

• 3.4 - known = enough info available to justify arrest

• Annex E states if W makes positive ID from photos, unless person identified otherwise eliminated from enquires/unavailable, other witnesses shall not be shown photos

• If ID procedure witness previously been shown photos, suspect & solicitor must be informed & mustn’t be reminded of it just before video ID

• note no absolute rule about warning jury of risks of photo evidence - Downey

• Now common for Crown adduce photo/video evidenced from...