18. Visual identification evidence

Question 1

What procedural safeguards are there for visual identification evidence?

Answer 1

1. PACE Code D (procedures designed to test a witnesses ability to identify controlled conditions any suspect the witness may claim to have seen or recognised and require the witness to provide the police with descriptions of the suspect) – Failure to comply may lead to exclusion of evidence
2. The Turnbull guidelines
3. And the prosecution will not invite witness to identify D for the first time in court due to the rule against dock identification

Question 2

What is identification evidence?

Answer 2

Not merely that which describes a culprit or clothing, even if it closely matches the defendant.
Nor where the witness states the culprit was the driver of a particular vehicle, or companion of another person, whose own identification is not in dispute.

Question 3

Do the Turnbull guidelines apply if there is no identification evidence?

Answer 3

No

Question 4

What must happen in respect of a witness who has made or may be able to make an identification?

Answer 4

Must ordinarily be invited to take part in a Code D identification procedure if the police have a suspect available.

Question 5

Will an inability to identify the defendant mean that particular witness cannot give further incriminating evidence?

Answer 5

No, for example they may give evidence as to a description of the culprit. The judge can also point out that a mistaken identification does not necessarily mean D is innocent or that the witness is untrustworthy in other respects.

Question 6

Will Turnbull or Code D apply where the accuracy of the identification is not in issue?

Answer 6

No, should actively be resisted. Circumstances like this may include where the person has known the Defendant well for years and has observed them at close range in perfect visibility for several minutes

Question 7

Does a witness claiming to have seen the culprit well known to them exclude any identification issues?

Answer 7

No, identification issues may still arise, even where there is an attack on the witness’ honesty or truthfulness

Question 8

What is the general rule as to when the Turnbull warning should be given?

Answer 8

In all cases, even in cases of alleged recognition

Question 9

How should breaches of PACE Code D be dealt with at trial?

Answer 9

They do not inevitably lead to exclusion of evidence.
However, it is essential that the tribunal decides whether breaches have occurred and whether they may have caused any significant prejudice to the Defendant.
May be able to be determined without a voir dire, but this is not an absolute rule.
If there is no prejudice, there will be no case for excluding.
If there is prejudice, they will have to consider exclusion under s78
Judges must give reasons for any decision to admit identification evidence obtained in breach of Code D
Identification will usually be excluded where important safeguards have been flouted.

Question 10

How should the court decide whether to exclude evidence obtained as a result of a breach of PACE Code D?

Answer 10

If there is no prejudice, there will be no case for excluding.
If there is prejudice, they will have to consider exclusion under s78
Judges must give reasons for any decision to admit identification evidence obtained in breach of Code D
Identification will usually be excluded where important safeguards have been flouted.

Question 11

May a breach of Code D have any knock-on effects for other evidence?

Answer 11

Yes, so a careful direction may be needed to ensure the jury understands the potential for prejudice caused by that breach of failure.
The jury must be ordinarily 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 they should take account of that fact in their assessment of the whole case, giving it such weight as they think fit.’
Does a failure to comply with Code D give rise to any other legal issues?
The ECHR, for example, notably under Art. 8.

Question 12

What is dock identification?

Answer 12

The identification of an accused for the first time during the course of the trial itself.

Question 13

How is dock identification evidence viewed?

Answer 13

As potentially unreliable, and especially so when a witness has already failed to pick D out at an identification parade.
May not be unreliable if they say the culprit is one which they have already identified to the police.

Question 14

What is the prosecution position on dock identification evidence on trials on indictment?

Answer 14

It will not invite a witness to identity, who has not previously identified the accused at an identity parade, to make a dock identification unless the witness’s attendance at a parade was unnecessary or impracticable, or there are exceptional circumstances.
A prosecutor who does this may open the case up to an appeal, including where they are invited to identify from CCTV evidence, having not identified D before.

Question 15

What is the prosecution position on dock identification at summary trials?

Answer 15

The prosecution’s undertaking to ask the witness to identify them may not apply in respect of minor summary offences, such as motoring offences, where the holding of an identity parade may not be practicable, although the principle still applies. Unclear area of law.
Whether such identification infringes art 6 depends upon all the circumstances of the case.

Question 16

What should happen where a prosecution witness makes an unsolicited dock identification?

Answer 16

The trial judge should warn the jury against giving it any weight or credence. It is not enough to merely observe that this would not usually take place.

Question 17

What are some considerations where the accused is not in custody for identification cases?

Answer 17

It may happen that a witness will identify D on arrival or while waiting outside court.
Prosecution arranged for a group identification in the foyer of the court building as D arrived and this evidence was properly admitted. It is unlikely, however that such circumstances of this identification would be wholly satisfactory and it may prove necessary in some cases to exclude this.

Question 18

What is the position on recognition evidence?

Answer 18

Dock identification should not be encouraged, but recognition evidence could be admitted even if no identification parade or group identification had been held. A Turnbull direction was still needed, but it is not a case in which the witness’s ability to make a leisurely identification is in doubt.

Question 19

Where are the Turnbull guidelines applicable?

Answer 19

To all trials, and to cases also of voice identification or voice recognition

Question 20

What do the Turnbull guidelines say?

Answer 20

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. In addition, he should instruct them as to the reason for the need for such a warning and that a convincing witness can still be mistaken, including a number of them
The judge then should invite the jury to examine closely the circumstances by any identification (anything in way, light, how long, is the person known to the witness, any discrepancies)
If the pros. Believe there is any discrepancy, they should supply the accused with particulars of the description the police were first given. If the accused asks for them, they should always given them
Thereafter remind them of any weaknesses in the identification
That recognition is more reliable, but mistakes are still made.
When the quality of the recognition is good, the jury can be allowed to assess the value of the identification even where there is no other evidence to support it, so long as they are warned about the special need for caution.
Where the evidence is poor, the judge should withdraw the case from the jury and direct an acquittal unless there is other evidence which supports the correctness of the identification (need not be corroboration).
Trial judge should then identify the evidence he thinks is capable of supporting the identification evidence.

Question 21

Are the Turnbull guidelines applicable to defence?

Answer 21

No, but may be appropriate to remind jury of the need to be cautious given honest mistakes can occur.

Question 22

When should a Turnbull direction be given in respect of prosecution evidence?

Answer 22

When the prosecution wholly or substantially rely on visual identification. No particular form of words is necessary. Jury must be warned, however, that the direction is from past experience

Question 23

What should happen where a Turnbull direction is not given where it should have been?

Answer 23

It will usually require a conviction to be quashed, though it may be condonable if the other evidence is overwhelming.
Where the principal or sole means of defence is a challenge to the credibility of the identifying witness, there may be exceptional cases in which a full Turnbull warning is unnecessary or may be stared more briefly than where the accuracy of identification is challenged.

Question 24

How much attention should be given to the Turnbull guidelines?

Answer 24

Paying lip service is not enough, nor will it suffice to give a general warning without reference to any evidence/circumstances which may undermine or support an identification.
Significance of any omission will depend on the circumstances

Question 25

May the Turnbull guidelines need to be applied where there is a disputed identification of an alleged accomplice?

Answer 25

Yes

Question 26

Would an inadequate direction in respect of the identification evidence against one accused render another accused’s conviction unsafe?

Answer 26

Potentially. Depends on the circumstances.

Question 27

Are the Turnbull guidelines applicable to vehicles?

Answer 27

No, but the reliability of a vehicle identification may depend on the witness having had a satisfactory opportunity to see the vehicle and on an ability to distinguish between one model and another. This should be drawn to the jury’s attention

Question 28

May the Turnbull direction be changed where the prosecution proposes to rely on hearsay evidence of the identification in the form of a statement from a witness who is not available to testify at trial?

Answer 28

Yes, it may need to be made more robust

Question 29

What may suffice where a witness merely have been mistaken as to, e.g., which person struck them out of a group?

Answer 29

That they may have been momentarily unsighted and mistaken therefore. Only applies where the accused’s presence is not in dispute, otherwise a full Turnbull direction is required.

Question 30

Is a Turnbull direction required where D admits presence at the scene?

Answer 30

Potentially. Depends on the case.

Question 31

What sort of warning should the judge give in respect of recognition evidence?

Answer 31

One which touches on the theme that a person could easily have said “I could’ve sworn it was you?” yet they were mistaken

Question 32

What evidence may support an identification?

Answer 32

It may take any admissible form, including bad character or previous convictions, cell site, self-incrimination, and other witnesses.

Question 33

What must the judge do in respect of evidence which supports an identification?

Answer 33

He must identify it and warn the jury against relying on anything that might appear supportive without really having that capability. A full discussion with counsel is strongly advisable on this point.

Question 34

How should the judge approach the issue when identification evidence is being supported by bad character evidence?

Answer 34

It may need particularly careful handling. i.e. where a person was included in an identification parade as they had previous convictions, the jury should be warned about this lest them thinking that ‘oh what a coincidence that the defendant they picked out has previous convictions’ when it was really no coincidence at all.

Question 35

What can a judge do where they decide the identification evidence in a given case is of such poor quality that the case should not have been left to the jury in absence of the supporting evidence in that case?

Answer 35

There is no obligation to warn the jury that they should not convict on the basis of the evidence of identification alone, should they reject the supporting evidence. There may be some cases that this might be appropriate, but is not required as a general rule.

Question 36

Can two identifications be treated as mutually supportive?

Answer 36

Yes, where appropriate. i.e. two witnesses identifying him carries more weight than one, but this is so only if the identifications are of a quality that a jury can safely be left to assess. Does not matter that both witnesses may have made their identifications from the same spot and may relate to separate incidents. But the jury has to consider both identifications separately and even identification of D in respect of another incident cannot rescue an identification in relation to a different incident.

Question 37

May there be a knock-on effect where witness 1 supports witness 2’s account in respect of a strikingly similar offence and later there is fresh evidence undermining witness 1?

Answer 37

Yes, it may impact on the safety of the conviction to which witness 2’s evidence relates as witness 2 is now less reliable as they may have relied on both account together.

Question 38

How may identification be supported by self-incrimination?

Answer 38

Well, it clearly can, but careful consideration must be given to it if alleged to have self-incriminated by lies or false alibis. The warning is that, where a jury has rejected a false alibi, they should not immediately think the identification evidence is better as the Defendant may have made an honest mistake/the Defendant may be honest but need more people to help support his case. Only where the jury is satisfied that the SOLE REASON FOR THE FABRICATION WAS TO DECIEVE THEM can it provide support for identification evidence. Lucas is applicable here.

Question 39

How may the accused’s silence be supportive of identification evidence?

Answer 39

By virtue of ss 34-38 CJPO, if the inferences appear proper to infer the pros evidence is correct and that D has no answer to it. May also be taken into account when deciding whether D has a case to answer.

Question 40

How may the quality of a witness support identification evidence?

Answer 40

A witness with perfect vision will clearly better than a myopic witness without spectacles. Apparently police officers may also be better witnesses by virtue of their training

Question 41

When should a judge stop a trial in respect of the inadequate identification?

Answer 41

The judge must direct an acquittal where identification is both deficient and unsupported by sufficient alternative evidence. The judge should invite the defence to make submissions to that effect if necessary. In such cases, the CoA may nonetheless direct an acquittal even where the trial judge’s directions were otherwise impeccable. A court must not merely apply the principles in Galbraith but rather a combination of it and Turnbull the evidence need not be particularly strong, only so much that a jury can properly convict, even where largely unsupported.

Question 42

Are there any ramifications of a witness saying they are not quite certain or only 90% sure?

Answer 42

A defendant cannot be properly convicted on the basis of this alone. It may have a role to play, however, alongside other identification evidence.

Question 43

What CODE D identification procedures are there?

Answer 43

1. Identification parade 2. Video identification 3. Group identification 4. Confrontation (last resort)

Question 44

What should police be taking down where there is a first identification?

Answer 44

ADVOKATE Amount of time Distance Visibility Obstruction Known Any reason to remember Time lapse Error (any discrepancies between description and D's actual appearance)