3.7 Visual identification evidence

Question 1

What is visual identification evidence?

Answer 1

Positive identification of the individual defendant.

Question 2

When is visual identification evidence important?

Answer 2

Where the defendant disputes the identity of the offender. i.e., “It wasn’t me, it must have been somebody else.”

Matching a description does not count.

Question 3

Where are the main safeguards regarding visual identification in investigations?

Answer 3

Code D PACE

Question 4

Where are the main safeguards regarding visual identification at trial?

Answer 4

R v Turnbull [1977] QB 224

“The Turnbull guidelines”

Question 5

What is a VIPER?

Answer 5

PACE Code D 3.5

Video
Identification
Parade
Electronic 
Recording

The witness is shown a video of the suspect along with eight videos of lookalikes chosen from a database.

Question 6

What can the defendant do if there has been a breach of Code D in gathering visual evidence?

Answer 6

Apply to the court to exclude the evidence under Section 78 PACE.

Quinn [1995] 1 Cr App R 480

The court will decide whether there is “significant prejudice” to the defendant. If so, would the evidence have such an adverse affect the fairness of the trial that the court should not admit it?

Question 7

Is it easy to exclude visual identity evidence for breaches of Code D?

Answer 7

If important safeguards have been breached, yes.

Question 8

What can the defendant do if visual identity evidence is not excluded despite a breach of Code D?

Answer 8

Defence counsel may comment on the breach during trial.

The judge should direct the jury to the breach and ask the jury to consider why the code was drawn in the way it was. The jury should decide whether the breach causes them to have doubts about the safety of the identification.

Question 9

What is the leading case on judge directions to the jury in cases that turn wholly or substantially on disputed visual identification evidence?

Answer 9

R v Turnbull [1977] QB 224

Question 10

What is the leading case on when identification evidence can safely be left to the jury and when it must be withdrawn to prevent an unsafe conviction?

Answer 10

R v Galbraith [1981] 2 All ER 1060

Question 11

What is a Turnbull Direction?

Answer 11

A direction to protect against over-confidence in visual identification evidence

Question 12

When should a Turnbull Direction be given?

Answer 12

When a case depends wholly or substantially on the correctness of one or more identifications of the accused which the defence claims are mistaken.

Question 13

What does a Turnbull Direction consist of?

Answer 13

The exact form is not prescribed but should include the following:

1. the special need for caution before convicting the accused in reliance on the identification.
2. the judge should instruct the jury of the reason for the need for this warning.
3. make some reference to the possibility that a mistaken witness can be a convincing witness and that a number of witnesses can all be mistaken.
4. The judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made.
5. The judge should remind the jury of any specific weaknesses in the identification evidence.
6. Recognition should be more reliable than identification of a stranger. However, juries should be reminded that mistakes can be made.
7. Consider whether other evidence supports the identification.

Question 14

What happens if the court fails to follow the Turnbull Guidelines?

Answer 14

A conviction is likely to be quashed.

Question 15

When must the court decide whether there is a case to answer against the defendant?

Answer 15

R v Galbraith [1981] 2 All ER 1060

At the close of the prosecution’s case.

Question 16

In deciding whether there is a case to answer based on visual identification, what principles must the court apply?

Answer 16

R v Galbraith [1981] 2 All ER 1060

1. What is the quality of the identification evidence?
2. Is there other evidence to support the identification?

Question 17

What are the BPP guidelines for assessing the quality of visual identification evidence?

Answer 17

ADVOKATE

A - Amount of time under observation
D - Distance
V - Visibility
O - Obstruction
K - Known or seen the defendant before
A - Any special reason to remember
T - Time lapse between witnessing and identification
E - Error - discrepancies in the witness's account

Question 18

What should the judge do where there is poor visual identification evidence?

Answer 18

Consider whether there is enough other evidence to support the identification. If not, withdraw the case and direct an acquittal.

Question 19

What is dock identification?

Answer 19

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

Question 20

Why is dock identification unsatisfactory?

Answer 20

It gives the witness no other persons to identify.

Seeing the witness in the dock may bias the witness.

Question 21

Is dock identification allowed?

Answer 21

Fergus (1993) 98 Cr App R 313
On indictment, the judge will not normally allow dock identification because it is unfair.

Barnes v Chief Constable of Durham [1997] 2 Cr App R 505
Dock identification may be acceptable for minor summary offences, such as road traffic offences, where the holding of an identity parade or similar Code D procedure may well be impracticable.

Question 22

When does Turnbull apply?

Answer 22

Only to issues of identification.
Not, eg, to issues of role or participation. Not to issues of description either, where D happens to match the witness’s description.