Unit 11 Identification Evidence

Question 1

What 3 safeguards are now in place to minimise risk of wrongful conviction based on identification evidence?

Answer 1

1. PACE Code D – The procedures prescribed by Code D (insofar as they relate to visual identification) are designed to test a witness’s ability to identify, under controlled conditions, any suspect the witness may claim to have seen or recognised on a previous occasion. They also require witnesses to provide the police with descriptions of any offenders etc. they claim to have seen, so that any subsequent identification can be compared with the original description. Failure to comply with Code D procedures must be taken into account by a court and may result in the exclusion of tainted evidence.
2. The Court of Appeal in Turnbull [1977] QB 224 (see F19.9) prescribed rules to guide judges faced with contested visual identification evidence. These guidelines must also be taken into account by magistrates’ courts.
3. Finally, 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 2

Is describing the culprit’s clothing Identification Evidence?

Answer 2

A mere description of the culprit or the culprit’s clothing is not identification evidence, even if it closely matches the appearance or clothing of the defendant. Nor is it identification evidence where the witness states that the culprit was the driver of a particular vehicle, or the companion of another person, whose own identification is not in dispute.

Question 3

Does Turnbull always need to be considered with ID evidence?

Answer 3

If the accuracy of a purported identification (as opposed to the honesty of the accusing witness) is not in issue, then neither the Turnbull guidelines nor Code D will need to be considered. E.g. the witness has known D for many years and spoke to them prior.

Question 4

If D is “named” by witnesses, does this rule out the need for Code D procedure?

Answer 4

Not if the accused disputes it, he should still be put on ID parade.

Question 5

What is the general rule with a Turnbull guideline?

Answer 5

The general rule, therefore, is that an appropriate Turnbull 
warning should be given, even in cases of alleged recognition.

Question 6

If the court finds one of the ID evidence safeguards has been flouted, what happens to the evidence?

Answer 6

Breaches of Code D do not inevitably lead to the exclusion of evidence that may be tainted by the breach but it is essential that the trial court or judge determines whether any alleged breaches have occurred, and whether they may have caused any significant prejudice to D. Identification evidence will usually be excluded where important safeguards have been flouted.

Question 7

What is “dock identification”?

Answer 7

The term ‘dock identification’ is best understood as referring to the identification of an accused for the first time during the course of the trial itself (i.e. by a witness who has not previously named or identified D by means of a Code D identification procedure). Such evidence has long been considered potentially unreliable.

Question 8

What is a Turnbull Direction?

Answer 8

Important guidelines for disputed identification evidence:

1. 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.
2. the judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made.
3. Finally, he should remind the jury of any specific weaknesses which had appeared in the identification evidence.

Question 9

In stage 2 of a Turnbull direction, what circumstances should the judge invite the jury to consider?

Answer 9

(a) 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?
(b) 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.

Question 10

If the identification evidence before the jury is poor, what must the judge do?

Answer 10

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….

Question 11

What is the scope of a Turnbull direction?

Answer 11

A Turnbull direction need not be provided unless the prosecution case depends wholly or substantially on visual identification, and even where such a direction is necessary no particular form of words need be used. The jury must however be warned that the direction is based on past experience

Question 12

Must a Turnbull direction be given in specific wording?

Answer 12

No particular form of words need be used. The jury must however be warned that the direction is based on past experience

Question 13

Will the absence of a Turnbull direction render the conviction unsafe?

Answer 13

The absence of an adequate Turnbull direction, tailored to the facts of the particular case, and if necessary reiterated in respect of each defendant, will usually require a conviction to be quashed as unsafe, although it may be condonable if the other evidence is overwhelming.

Question 14

Do the Turnbull directions also need to be followed with reference to an accomplice?

Answer 14

Yes. The guidelines may also need to be followed in cases involving the disputed identification of an alleged accomplice and an inadequate direction in respect of the evidence against one accused may render unsafe the conviction of another, although this will depend on the circumstances of the particular case.

Question 15

Are Turnbull directions required for the identification of vehicles?

Answer 15

No. The guidelines are not applicable to cases involving the identification of motor vehicles. The reliability of a vehicle identification may however depend, inter alia, 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 16

Is the judge obliged to inform the jury if he decides the identification evidence is of poor quality/

Answer 16

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, 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 might be some cases where, in the light of the evidence that has unfolded, a direction of that kind might be appropriate, but it is not required as a general rule.

Question 17

Explain the principle of Mutually Supportive Identifications

Answer 17

It is permissible in appropriate cases for two or more disputed identifications of D to be treated as mutually supportive.
Putting it shortly, an identification of a suspect by two different witnesses 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.’
 It does not matter that both witnesses may have made their identifications from the same spot and in some cases the identifications may relate to separate. But the jury must consider the quality of each witness’s evidence of identification separately; and, 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

Question 18

What are the governing principles in relation to self-incrimination by false alibis or other lies? (ID Evidence)

Answer 18

Before such lies can be regarded as supporting an identification, they must accordingly be shown to be deliberate and material; 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 19

What inferences may the jury draw from the accused’s silence?

Answer 19

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 each, in appropriate cases, entitle the court or jury to ‘draw such inferences as appear proper’. They 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. It may also be taken into account when deciding whether D has a case to answer

Question 20

Can an accused be convicted on qualified identification evidence?

Answer 20

In some cases, a witness may have qualified an identification by admitting that being ‘not quite certain’, or was only ‘90 per cent sure’. A defendant cannot properly be convicted on qualified identification evidence alone. But as with other kinds of weak identification evidence, a qualified identification may have a legitimate role to play alongside other, more reliable, evidence.

Question 21

Outline the Galbraith Test? (submission of no case)

Answer 21

(1) If there is no evidence that the crime alleged has been committed by the defendant, there is no difficulty. The judge will of course stop the case.
(2) The difficulty arises where there is some evidence, but it is of a tenuous character, for example because of inherent weakness or vagueness or because it is inconsistent with other evidence.
(a) Where the judge comes to the conclusion that the prosecution evidence, taken at its highest, is such that a jury properly directed could not properly convict upon it, it is his duty, upon a submission being made, to stop the case.
(b) Where however the prosecution evidence is such that its strength or weakness depends on the view to be taken of a witness’s reliability, or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence upon which a jury could properly come to the conclusion that the defendant is guilty, then the judge should allow the matter to be tried by the jury…
There will of course, as always in this branch of the law, be borderline cases. They can safely be left to the discretion of the judge.

Question 22

The first limb of the Galbraith test requires what standard?

Answer 22

The test of there being ‘no evidence that the crime alleged has been committed by the defendant’ is intended to convey the same meaning as, ‘there has been no evidence to prove an essential element in the alleged offence’.

Question 23

How should the court approach the Second limb of the Galbraith test? (submission of no case against weak or tenuous evidence)

Answer 23

This approach inevitably involves the court considering the quality and reliability of the evidence, rather than its legal sufficiency, and therefore involved the court carrying out the assessment of evidence and witnesses that would otherwise be the exclusive prerogative of the jury. The judgment in Galbraith makes clear that it is not appropriate to argue on a submission of no case that it would be unsafe for the jury to convict, which would be an invitation for the judge to impose his or her own views of the witnesses’ veracity.

Question 24

Is the judge allowed to consider the reliability of evidence when deciding a submission of no case to answer?

Answer 24

The second limb of the Galbraith test does leave a residual role for the court as assessor of the reliability of the evidence. The court is empowered by the second limb of the Galbraith test to consider whether the prosecution’s evidence is too inherently weak or vague for any sensible person to rely on it. Thus, if the witness undermines his or her own testimony by conceding uncertainty about vital points, or if what the witness says is manifestly contrary to reason, the court is entitled to hold that no reasonable jury properly directed could rely on the witness’s evidence, and therefore (in the absence of any other evidence) there is no case to answer.

Question 25

What is the ADVOKATE acronym for ID evidence?

Answer 25

A Amount of time under observation
D Distance
V Visibility 
O Obstruction
K Known or seen before
A Any reason to remember
T Time lapse 
E Error or discrepancy

Question 26

What are examples of the PACE Code D ID Procedures?

Answer 26

Where a suspect is ‘known’ to police there are a range of ID procedures set out in D3.4
- ID parade (where suspects line up with others who resemble them)
- Video identification (a video version of an ID parade with moving images of the suspect and also others who resemble them)
- Group Identification (where witness sees the suspect in an informal group)
The identification officer may arrange for the suspect to be confronted by the eyewitness if none of the options above are practicable (Code D3.23). This is a method of last resort. Known as a confrontation – when the suspect is directly confronted by the eyewitness. A confrontation does not require the suspect’s consent.
• ‘Unknown’ suspects
o In cases where the suspect is not ‘known,’ an eyewitness may be taken to a particular neighbourhood or place to see whether they can identify the person they saw on a previous occasion. Code D3.2.

Question 27

Briefly outline the stages of a Turnbull direction? (5)

Answer 27

• Warning of the special need for caution (F19.9 – in cases of visual identification that is disputed by the defence. A need to headline the need for caution.)
• Explain the reasons for the warning (F19.9)
• Direct jury to examine closely the circumstances of the identification
• Identify any weaknesses in the identification evidence
• Identify evidence capable of supporting the identification

Question 28

Briefly state the 2 limbs of the Galbraith test