unit 11 - ID Evidence (unit 18 BSB)

Question 1

The visual identification of suspects or defendants by witnesses has long been recognised as =

Answer 1

potentially unreliable

Question 2

3 safeguards now in place:

Answer 2

(1) Pace Code D;

(2) Turnbull guidance at trial stage re contested visual ID evidence;

(3) rule against ‘dock identification’.

Question 3

(1) Pace Code D

instructions to police re how to deal with ID issues.

Answer 3

Procedures designed to test a witness’s ability to identify, under controlled conditions, any suspect he may claim to have seen or recognised on a previous occasion

And require witnesses to provide the police with descriptions of any offenders etc they claim to have seen; so that any subsequent ID can be compared with the original description.

Question 4

(2) Turnbull guidance at trial stage re contested visual ID evidence;

Answer 4

prescribed rules to guide judges faced with contested visual identification evidence.

CC - Direction from Judge to Jury

These guidelines must also be taken into account by magistrates’ courts.

Question 5

(3) rule against ‘dock identification’.

Answer 5

In trials on indictment at least, the prosecution will not invite witnesses to identify D for the first time in court: as to this rule against ‘dock identification’

Question 6

do NOT confuse visual ID evidence with other evidence capable of supporting prosecution case.

The following visual ID evidence does not apply;

Answer 6

(a) a mere description of the suspect (‘he was 5’7’ with dark hair and blue eyes’)

(b) description of clothing/vehicle (‘I couldn’t see his face but he was wearing a purple jumper’)

(c) when witness states that the culprit was the driver of a particular vehicle; or the companion of another person (whose own iD is not in dispute).

(c) the suspect has a connection to a particular place or others at the scene (‘I thought it was Tony because I know he is always at the Rainforest Café on a Saturday morning’)

Question 7

If there is no ID evidence =

Answer 7

Turnbull guidelines do NOT apply

Question 8

If the police have a known suspect available =

Answer 8

A witness who has made or who may be able to make an identification must ordinarily be invited to take part in a Code D identification procedure

But inability to make an ID does not prevent the witness giving other evidence that might incriminate D, eg a description of the offence or offender.

Question 9

If the accuracy of a purported ID is NOT in issue (as opposed to the honesty/credibility of the accusing witness being in issue) =

Answer 9

Code D nor Turnbull does not apply

In such cases, any attempt to apply Turnbull guidelines would merely serve to confuse the jury by focusing their attention on the wrong
issue

(If, for example, the witness claims to have known D well and for many years and to have observed D at close range in conditions of perfect visibility for several minutes, or to have conversed with D in the same room, it is unlikely that any identification issue could arise. Such cases are neither rare nor wholly exceptional)

Question 10

ID issues can easily arise

even when witness claims to have recognised the suspect or accused as someone already well known to the witness =

Answer 10

and they are not necessarily excluded even where the principal line of defence involves an attack on the honesty or truthfulness of the witness.

Conway: ID became an issue as soon as D questioned the witnesses’ ability to recognise him; and ID procedures in Code D should have been followed; and Turnbull would have been applicable.

Question 11

The general rule about when the Turnbull direction should be given

Answer 11

an appropriate Turnbull warning should be given, even in cases of alleged recognition

o In Beckford v The Queen (1993): D claim they recognised D and others who committed offence
- court held there is a a possibility of genuine mistake because:
- . The witness had been 500 feet from the scene of the crime, and the closest he had come to the perpetrators was 120 feet
- Mistakes can be made at such distances, even where known acquaintances are involved,
+ it was held that a Turnbull direction should have been given.

Question 12

Breaches of PACE Code D

First issue for a trial judge: to determine if a breach of Code D has in fact occurred

And if has occurred =

Answer 12

whether has caused any significant prejudice to D:

o These issues can usually be achieved without a voir dire (trial within a trial).

o However, sometimes, when evidence around the alleged breach is disputed = voir dire may be required and judge will have to hear evidence under oath.

Question 13

Breaches of Code D

If it is clear that no prejudice resulted from a breach or failure to observe Code D, then =

Answer 13

there will be no case for excluding the evidence.

Question 14

If there has been breaches of Code D, then the judge should consider:

Answer 14

whether the adverse effect would be such that justice requires the evidence to be excluded

Question 15

Does a breach of code D automatically lead to exclusion of evidence?

Answer 15

NO!

Question 16

Court/judge must give reasons for any decision to admit ID evidence obtained in breach of Code D

Question 17

When would ID evidence normally be excluded?

Answer 17

where important safeguards have
been flouted,

eg

1) the right to a formal ID procedure.

D has the right to have the correctness of the visual ID tested under formal conditions.

Eg Nagah, conviction quashed; evidence had been admitted derived from a deliberately staged encounter outside the police station; in which he had been confronted by the identifying witness as he left. No ID parade was held; OR

2) Failure to observe requirements of Code D (eg failing to hold a formal ID procedure) may affect other forms of evidence against D:

o A careful direction to jury may be needed, so that they fully understand the potential for prejudice caused by the breach/failure.

Question 18

If ID evidence is admitted despite a breach of Code D, Jury should ordinarily be told that: ‘

Answer 18

‘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 that they should take account of that fact in their assessment of the whole case, giving it such weight as they think fit’

Question 19

Failure to comply with Code D may also give rise to ECHR issues,

Answer 19

eg in cases involving covert videotaping of suspects, which may be open to challenge under Article 8 if not performed in strict accordance with domestic law

Question 20

Dock Identification

has long been considered potentially unreliable

especially so when a witness who has failed to pick out D at an identification parade is then invited to try to identify D in court

In trials on indictment (AG and DPP said in 1976): the prosecution will notinvite a witness to identify, who has not previously identified the accused at an ID parade, to make a dock ID, UNLESS:

Answer 20

the witness’s attendance at ID parade was unnecessary or impracticable,

or there are exceptional circumstances.

Question 21

Dock Identification

Might allow in minor summary offences:

Answer 21

(eg road traffic offences), where the holding of an ID parade under Code D procedure may be impracticable

Question 22

There is a danger that a witness may sometimes make a dock identification even where none has been solicited by the prosecution.

If that happens =

Answer 22

1. it may be necessary for the trial judge to warn the jury against giving it any weight or credence.
2. It would not suffice merely to observe (as did the trial judge in Thomas) that an identification of that sort would not ordinarily take place.

Question 23

• There is also a risk, if D is not in custody and no identification has previously been arranged, that a witness will identify D on arrival at or waiting outside the court

Answer 23

It is unlikely, however, that the circumstances of such an identification would be wholly satisfactory (especially where a considerable time has elapsed since the alleged offence), and it may prove necessary in some cases to exclude such evidence

Question 24

A trial judge retains discretion to permit a dock ID

Judge will need to consider

Answer 24

Whether such course of conduct will jeopardise the fairness of the accused’s trial.

Question 25

Turnbull Guidelines

In response to widespread concern over the problems posed by cases of mistaken identification, the COA in Turnbull laid down important guidelines for judges in trials that involve disputed identification evidence:

[CASE LAW]

Answer 25

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 or identifications. In addition he should instruct them as to the reason for the need for such a warning and should make some reference to the possibility that a mistaken witness can be a convincing one and that a number of such witnesses can all be mistaken. Provided this is done in clear terms the judge need not use any particular form of words.
Secondly, the judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made. How long did the witness have the accused under observation? At what distance? In what light? Was the observation impeded in any way, as for example, by passing traffic or a press of people? Had the witness ever seen the accused before? How often? If only occasionally, had he any special reason for remembering the accused? How long elapsed between the original observation and the subsequent identification to the police? Was there any material discrepancy between the description of the accused given to the police by the witness when first seen by them and his actual appearance? If in any case, whether it is being dealt with summarily or on indictment, the prosecution have reason to believe that there is such a material discrepancy they should supply the accused or his legal advisers with particulars of the description the police were first given. In all cases if the accused asks to be given particulars of such descriptions, the prosecution should supply them. Finally, he should remind the jury of any specific weaknesses which had appeared in the identification evidence.
Recognition may be more reliable than identification of a stranger; but even when the witness is purporting to recognise someone whom he knows, the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made.
All these matters go to the quality of the identification evidence. If the quality is good and remains good at the close of the accused’s case, the danger of a mistaken identification is lessened; but the poorer the quality, the greater the danger.
In our judgment when the quality is good, as for example when the identification is made after a long period of observation, or in satisfactory conditions by a relative, a neighbour, a close friend, a workmate and the like, the jury can safely be left to assess the value of the identifying evidence even though there is no other evidence to support it; provided always, however, that an adequate warning has been given about the special need for caution. Were the Courts to adjudge otherwise, affronts to justice would frequently occur. …
When, in the judgment of the trial judge, the quality of the identifying evidence is poor, as for example when it depends solely on a fleeting glance or on a longer observation made in difficult conditions, the situation is very different. The judge should then withdraw the case from the jury and direct an acquittal unless there is other evidence which goes to support the correctness of the identification. This may be corroboration in the sense lawyers use that word; but it need not be so if its effect is to make the jury sure that there has been no mistaken identification. …
The trial judge should identify to the jury the evidence which he adjudges is capable of supporting the evidence of identification. If there is any evidence or circumstances which the jury might think was supporting when it did not have this quality, the judge should say so

Question 26

Turnbull directions

• is not appropriate in relation to identification evidence supporting the defence,

Answer 26

but it may be appropriate to remind a jury of the need to be cautious in assessing such evidence given that honest mistakes can easily be made

Question 27

Turnbull directions

In respect of prosecution evidence, a Turnbull direction need not be provided unless the

Answer 27

P case depends wholly or substantially on visual identification

Question 28

The absence of an adequate Turnbull direction, tailored to the facts of the particular case, and if necessary reiterated in respect of each defendant =

Answer 28

will usually require a conviction to be quashed as unsafe

Question 29

Where the principal or sole means of defence is a challenge to the credibility of the identifying witness, =

Answer 29

there may be exceptional cases in which a full Turnbull warning is unnecessary or may be given more briefly than in a case where the accuracy of identification

Question 30

No particular form of words to be used; though judge should not pay ‘lip
service’ to the guidelines

Answer 30

And the jury must be warned that the direction is based on past experience

And not sufficient to give a general warning without reference to any evidence that may support or undermine the ID; or to any circumstances that may have affected the accuracy of the witness’s observation.

o Eg judge must remind of specific weaknesses which appear in the ID
evidence.

Question 31

A judge may properly point out that a mistaken identification (as where a witness has identified a volunteer at a parade) does not necessarily prove that D is innocent or that the witness is untrustworthy in other respects, especially if the witness’s view of the crime was imperfect

Question 32

The guidelines may also need to be followed in cases involving the disputed ID of an alleged accomplice:

Answer 32

o An inadequate direction in respect of evidence against one accused may render unsafe the conviction of another, depending on circumstances.

Question 33

The guidelines are not applicable re identification of motor vehicles:

Answer 33

the reliability of a vehicle ID may however, depend on the witness having had a satisfactory opportunity to see the vehicle and on his ability to distinguish between one model and another. This should be drawn to the jury’s attention

Question 34

Hearsay: A particularly robust Turnbull direction may be needed

Answer 34

where for one reason or another the prosecution adduce hearsay evidence of identification in the form of a statement from a witness who is not available to testify at trial

Question 35

If presence at the scene is admitted but D disputes their role in an incident: would Turnbull be required?

Answer 35

it is likely a Turnbull direction will NOT be required.

Question 36

A Turnbull warning was accordingly held to have been necessary in Bowden, even though a police officer claimed to have had a long and careful look at the offender

Question 37

It does not follow from Oakwell that no Turnbull direction would ever be necessary if D’s presence at the scene is admitted

Answer 37

There will be some circumstances in which it will be appropriate to give such a direction and some in which it will not

Question 38

Evidence capable of supporting the ID includes (may take any admissible form):

Answer 38

a) Scientific evidence, eg footwear, facial mapping, telephone evidence, fingerprints, DNA.

b) Mutually supportive identifications

c) The accused’s bad character or previous convictions (if admissible)

d) The accused’s admissions at the scene/in interview/in the witness box

e) Self-incrimination (an admissible confession)/Lies

f) Inferences from accused’s silence (in interview or at trial)

Question 39

Supporting Evidence

The accused’s bad character or previous convictions (if admissible)

Answer 39

Evidence of bad character may need particularly careful handling in this context

eg where D charged with a sexual offence; jury told of his previous convictions for sexual offences, without being told these were the only reason for him being included in the ID parade in the first place.

Conviction was quashed.

Jury may have supposed it was an enormous coincidence that the man identified by the complainant had convictions which bore similarity to the case before them, when in reality it was no coincidence at all (H (2014)).

Question 40

Supportive evidence: Judge’s role:

Answer 40

• The judge must identify evidence that is capable of providing such support and warn the jury against reliance on anything that might appear supportive without really having that capability.

A prior discussion between judge and counsel is strongly advisable in this context, ‘if only so that the judge knows on what points counsel will seek to rely in their speeches to support or undermine the identifications and that counsel will know the judge’s view as to whether any particular piece of evidence is capable of having either effect’

Question 41

Where a judge decides that the identification evidence in a given case is of such poor quality that the case should not have been left to the jury in the absence of supporting evidence =

Answer 41

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.

Question 42

Mutually Supportive Identifications

Answer 42

ID evidence two different witnesses carries more weight than on

Question 43

When does Mutually Supportive Identifications apply?

Answer 43

-(1) Multiple identifications by different witnesses

(2) only if the identifications are ‘of a quality that a jury can safely be left to assess’

Question 44

Mutually Supportive Identifications: what should the jury do?

Answer 44

the jury must consider the quality of each witness’s evidence of identification separately;

+
even where the evidence identifying D as the perpetrator of one offence is compelling, it cannot rescue a weak identification in respect of another incident unless it is clear that each was committed by the same person

+

WhereW1’s identification of D in respect of one offence andW2’s identification of D in respect of a different but strikingly similar offence committed on another occasion are treated as mutually supportive, fresh evidence tending to prove thatW1 identified the wrong person must also tend to undermine the reliability of W2’s identification in respect of the other offence

Question 45

Self-incrimination

Disputed ID evidence can clearly be supported by an admissible confession;

Answer 45

careful consideration must be given to cases in which the defendant is alleged to have self-incriminated by lies or false alibis

Care should be taken by the judge when directing the jury about the support for an identification which may be derived from the fact that they have rejected an alibi. (False alibis may be put forward for many reasons + can make mistakes)

Governing principle = LUCAS

Before such lies can be regarded as supporting an identification = they must be shown to be deliberate and material

Question 46

Self-incrimination

Answer 46

It is only when the jury is satisfied that the sole reason for the fabrication was to deceive them and there is no other explanation for its being put forward can fabrication provide any support for identification evidence

The jury should be reminded that proving the accused has told lies about where he was at the material time does not by itself prove that he was where the identifying witness says he was.

the court or jury must be able to discount any possible innocent motive for the lies and they must be proved to be lies by evidence other than the identification(s) that they are to support.

Question 47

The Accused’s Silence

Under the CJPO 1994, ss. 34 to 38, D’s failure:
(a) to mention facts when questioned or charged which are later relied upon in his defence;
(b) to account for objects in his possession or substances or marks on his body or clothing;
(c) to account for his presence at a particular place; or (d) to testify at his trial,

MAY, in appropriate cases, entitle the court/jury to ‘draw such inferences as appear proper’

Answer 47

do not, in themselves, constitute evidence of guilt and should not be seen as a substitute for satisfactory identification evidence

but in some cases the absence of testimony or explanation from D may legitimately enable a court or jury to infer that the prosecution evidence is correct and that D has no answer to it

Question 48

Quality of the Witness

There is no doubt that some witnesses may be capable of providing more reliable identification evidence than others in the same position =

Answer 48

Eg a witness with perfect vision over a myopic witness who has lost his spectacles

More controversial is the suggestion that police officers may, by virtue of their training, be more observant than ordinary witnesses, or at least better at noting features or details that may be significant.
- this suggestion was rejected in the Privy Council
- but CA subsequently held to be quite proper: it would be wrong for a trial judge not to direct the jury as to the potentially greater reliability of police identification

Question 49

Stopping a Trial Based on Inadequate Identification

Answer 49

The Turnbull guidelines require the trial judge to direct an acquittal in cases where identification evidence is both deficient and unsupported by sufficient alternative evidence.

If necessary, the trial judge should invite the defence to make submissions to that effect

Question 50

Stopping a Trial Based on Inadequate Identification

Re visual ID, judge must answer 2 questions:

Answer 50

o (1) what is the quality of the ID evidence?

o (2) is there other evidence to support the correctness of the identification (see above other evidence)?

Question 51

Stopping a Trial Based on Inadequate Identification

• In assessing the quality of the ID evidence = judge must consider:

Answer 51

lighting;
distance;
length of time of observation;
qualities relating to the witness themselves (eg their eyesight).

Question 52

When the quality of ID is good =

Answer 52

the jury can be safely left to assess the
value of the evidence, regardless of whether there is other evidence to support it

Question 53

When judge decides the quality of ID evidence is poor (eg a fleeting glance, or observation made in difficult conditions)

Answer 53

= judge should consider whether there is other evidence to support the correctness of the ID

Question 54

When judge decides the quality of ID evidence is poor (eg a fleeting glance, or observation made in difficult conditions)

+ If no other supporting evidence =

Answer 54

judge should withdraw the case from the jury and direct an acquittal

Question 55

Re qualified identification:

by admitting that being ‘not quite certain’, or was only ‘90 per cent sure’ =

Answer 55

A defendant cannot properly be convicted on qualified identification evidence alone

But, as with other kinds of weak ID evidence, it may be legit evidence if supported by other, more reliable, evidence