Identification Evidence

Reliable witnesses may make a false ID of suspect, even when they are well known to him

Visual memories fade in time & become distorted by photos

No ID ev = No Turnbull guidelines

Description of culprit & clothing is not ID ev, even if it is a close match

GEORGE [2003]

W seen culprit's face - should be invited to ID parade if suspect is available

There is a risk of wrongful conviction

ID ev of W who may have only caught a mere glance of offender is unreliable

• Causes of miscarriage

MATTAN (1998)

Facts: CA quashed murder conviction - appellant hung 42 years earlier on flawed ev of ID

If there is no argument that ID is mistaken, there is no ID issue

• Turnbull nor Code D do not need considered

PACE Code D provides second means of reducing risk of miscarriage of justice from mistaken ID

Requires record to be made of description of suspect first given by W

MUST be followed when a dispute of ID might be anticipated

FORBES [2001]

Principle: If eye witness makes it cleae he can't ID culprit it will be futile to invite him to ID procedure

NETHERCOTT [2011]

Code D provides safegards for D's & officers

• if not followed it may destabilise safe conviction

Police may choose between video ID or ID parade

• Video ID usually first choice (quick & easy)

Group ID is alternative - may be used if video ID is unsatisfactory

Confrontation - last resort

If a suspect refuses to consent...

May not make representations as to why another procedure should be used

Annex A - does not mean ID from CCTV recordings

It is procedure for testing ability of W to make an ID 

• shown multiple identical video clips (one shows real suspect)

Video Identification Parade Electronic Recording (VIPER)

Police make vid of suspect & send images to W. Yorkshire where body complies 3 minute vid portfolio with footage of 8 similar looking people from volunteer database

There may be problems...

KAMARA (2000)

Facts: K, who's conviction was from 1981 - appeared on VIPER in ill-fitted clothing

(a) Eye-witness identified & suspected or purported to ID them

(b) There is an eye-witness who expresses ability to ID suspect

(c) There is reasonable chance of eye-witness being able to ID suspect

Identification parades

Annex B - W sees suspect in line of 8 others who resemble suspect

Group ID

Annex C - Used if more suitable than other procedures

Confrontation

Annex A - if no other method is available

POWELL V DPP [1992]

An ID procedure must be held, unless

(a) It is not practicable to hold procedure

(b) Any procedure would serve no useful purpose in proving whether suspect was involved

HARRIS [2003]

Facts: Victim of robbery - claimed to know one of their aggressors - having attended same school - only knew him by his distinctive forename

Held: This fell within Code D

To contrast...

R(H) V DPP [2003]

Held: it would have served no useful purpose for police to have organised ID parade

Code D does not give suspect right to call for parade when he contests guilt

NICHOLSON (1999)

Facts: V who had been attacked from behind - said he would be unable to ID suspect - no ID parade held

FORBES [2001]

Principle: If eye-witness fails to ID suspect this will strengthen his position during trial

Code D allows witnesses to be shown photos or to be taken to neighbourhood in hope they will recognise offender

POPAT [1998]

Facts: P charged with sexual offences - identified by W from front window in company of officer - procedure allowed under Code D

Held: if there has been actual & complete procedure, there is no need to hold further ID procedure

MARCUS [2004]

Facts: Due to suspect unusual features - lack of images in VIPER - police organised 2 seperate vid parades

Held: disapproved of resourcefulness - quashed M's conviction - Code D violation

AKINYEMI [2001]

Facts: Victim attempted robbery - kept A in view while police chased & apprehended him

Held: Police had no obligation to hold ID parade

Witnesses frequently describe clothing & appearance rather than visual features

GUMMERSON V STEADMAN [1999]

Principle: Code D does not require voice ID parade to be held in cases which voice ID arises

Police will arange for tests for witnesses ability to pick out suspects voice from number of foils

Police under strict duty to comply with Code D

• Breach will lead courts to exclude ev under S78 PACE

KINGDOM [2009]

Facts: W in hospital - accidentally saw picture of K - exclaimed it was him before taking part in vid parade - he picked K out

Held: Judge rightly admitted ev of successful ID

SMITH (DEAN MARTIN) [2009]

Facts: Officers viewed CCTV recording - make ID of people involved in nightclub shooting

Voice ID parades

Under no circumstances should attempt be made to conduct live vid ID procedure using live suspect & foils

Dock identification

ID suspects for first time at trial

TIDO V R [2011]

Principle: Dock ID not inadmissible in ev per se, & admission of such ev is not to be regarded as admissible in exceptional circumstances

W who identifies D as offender is expected to support this with evidence

S120(4) - (5) Crim Justice Act 2003 - governs ev of previous identification

Turnbull issued set out guidelines to reduce risk of miscarriage of justice from admission of unreliable ID evidence

• Obliges court to halt cases or give jury warning when crown relies on weak ID ev

HOLMES

Facts: trial judge failed to warn jury - weaknesses in ID ev - prosecution largely depended on - convition quashed

NAJJAR [2014]

Facts: Only eye-witness ID flawed - BUT high quality CCTV ev showing offenders face - jury was invited to concentrate on that - exclude W's evidence

Held: no Turnbull direction needed

Ev in cases where W claims to ID stranger he has never saw before incident

Jury reminded that mistakes in recognition of close relatives & friends are often made

BENTLEY [1991]

"I could have sworn it was you"

CAPRON V R [2006]

Facts: in recognition case should always give Turnbull direction - UNLESS nature of eye-witness ev is such that direction would add no substance to trial

GOODWAY [1993]

Principle: Ev capable of supporting disputed ID may be admissible - including obvious lies

Inc. admissions or other self incrimination by D (bad character)

RICHARDSON [2014]

Facts: Taxi picked up D wearing distinctive clothing - D stopped taxi - got out & assaulted man - got back in taxi & drove off - Crown applied successfully for admission of prev convictions

Held: matter in issue was the ID of D. The fact D committed similar attack previously in same area was relevant - probative value

Judge must ID ev capable of providing such support & warn jury against reliance on anything that may be supportive without actually having that capability

Crim Justice & Public Order Act SS34-38

It may be too dangerous for court to admit visual ID evidence at all if pros rely on poor ID ev with no supporting ev.

DALEY V R [1994]

Facts: could not be established that shopkeeper who identified D as wife's murderer had good chance of viewing killer from hiding place - no other ev linking D to crime

Held: case withdrawn from jury

To contrast...

DOSSETT [2013]

Facts: night time robbery - was not a case of a mear glimpse

Held - not necessary to look at someone long to take in key features

Turnbull guidelines require judge to stop trial & direct acquittal where ID ev is deficient & unsupported

GHAFIN [2008]

Facts: involved visual ID in sexual assault case - possibility of mistaken ID when V complained of being assaulted by 2 males

NEALON [2014]

Facts: issue was whether court should receive fresh DNA ev - after conviction if conviction as unsafe

Held: necessary to admit fresh DNA ev in interest of justice - effect of DNA was substantial on conviction - appeal allowed - conviction quashed

BROWN [2011]

Principle: D must not be convicted on evidence of a qualified ID alone

GALBRAITH [1981]

Principle: When D submits no case to answer, court must uphold submission & stay case if it feels a properly directed jury could not convict

Ev in Turnbull was so slender that it is unreliable and not sufficient to find conviction

There must be Turnbull direction delivered whenever pros depends wholly/substantilly on correctness of accused which D claims is mistaken

ID need not be of the accused himself

BATH (1990)

Facts: Shopkeeper - obtained money in respect of stolen goods by D - identified one of children accompanying B in shop

Held: Identifying a companion is to identify the latter of accused - Turnbull direction required

Judicial warning must cover:

(1) Warn special need for caution before conviction on ID ev

(2) Explain why caution is required & remind jury a conviction can be mistaken

(3) Remind jury of circumstances in which ID was made

(4) Reminder of any weaknesses effecting case

Signifies that witnesses ID is unlikely to be mistaken

Source must be independent from witness - may include accused

Can unclude circumstantial ev & false alibi's

PENNY (1992)

Facts: W of robbery - picked out in ID parade someone who owned car in relevant area - car was right model & colour - obscure number plate

Convictions ouht not to be based purely on visual ID evidence

WEEDER (1980)

Principle: When ID ev is good, the ID of one witness can support another

Failure to deliver Turnbull direction is taken seriously & may consider convictions unsafe - lead to quashed conviction

SHAND V R [1996]

Facts: Warning unnecessary if issue is credibility of an identifying witness

Courts require trial judges to deliver warning whee crown relies on ID evidence

HERSEY [1997]

Facts: robbers ID established by W who recognised his voice

LUTTRELL [2004]

Facts: Lip reading ev from a real life video - species of real evidence - capable of passing ordinary tests of relevance & reliability - potentially admissible in evidence

Principle: such ev required special warning as to its limitations & risk of error

Photos & CCTV/facial mapping

Can be shown as real ev

Facial mapping may enhance value of poor quality images & expert ev may be admissible

Skethes or photofits may be misleading