Unit 18 Visual Identification Evidence Flashcards
When do the safeguards for visual identification evidence apply and when do they not apply?
The purpose of the safeguards is to minimise the risk that Ds are convicted on the basis of inaccurate visual ID evidence. This has long been recognised as a major cause of false convictions.
Because the concern is ‘inaccuracy’ the safeguards only apply if the accuracy of the evidence is ‘in issue’. If the evidence is disputed for any other reason, then the safeguards don’t apply. E.g. if the honesty (‘W is lying’) of the W is in issue, then there is no ID issue.
The accuracy will be ‘in issue’ as soon as D questions W’s ability to recognise him.
What three safeguards are now in place to minimise risk of wrongful conviction based on visual identification evidence?
- 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.
- The Court of Appeal in Turnbull prescribed rules to guide judges faced with contested visual identification evidence. These guidelines must also be taken into account by magistrates’ courts.
- Rule against ‘dock identification’ in trials on indictment
Is describing the culprit’s clothing Identification Evidence?
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.
What is the procedure prescribed by PACE Code D?
- Any W who has made / may make an ID must ordinarily be invited to take part in a Code D ID procedure if police have a known suspect
- Ws must provide police w/ descriptions of any offenders they claim to have seen so that subsequent ID can be compared w/ original description
The procedure is designed to test a W’s ability to ID, under controlled conditions, any suspect he claims to have seen/recognised previously.
What is the consequence of a breach of PACE Code D?
May lead to exclusion of evidence under s. 78 PACE.
If, applying s. 78, the judge decides not to exclude the evidence, the judge must give reasons (oral or written) for their decision. A careful direction to the jury may also be needed to help them understand the potential for prejudice caused by that breach
What is the rule against ‘dock identification’? What are the possible consequences of breaching it?
In trials on indictment the [prosecution] … will not invite a witness to identify, 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.
Less clear to what extent this rule applies in the mags. In general, it seems too impractical to require identity parades to be held in all of these cases.
Consequence of breach: dock identification may be grounds for a successful appeal
What should happen if a witness makes a dock identification where none has been solicited by P?
Judge should give a careful direction to the jury that they should not place too much emphasis on it.
What guidance did the CA give in Turnbull?
N.B. these rules also apply to ID evidence that is not visual, e.g. voice identification
The first question the judge needs to ask is whether the ID evidence is so poor that the case should not be left to the jury and an acquittal should be directed (obviously this will only be the case if the case depends wholly or substantially on the ID evidence). This is simply an instantiation of the ‘no case to answer’ procedure and should comply with Galbraith.
If the judge decides that the case should be left to the jury, then the CA gave guidance as to the warning that the judge must give to the jury:
N.B. there is no need for a special warning where the case does not depend wholly or substantially on the correctness of identification evidence.
(1) The judge should warn the jury of the special need for caution (i.e. possibility of mistake).
(2) The judge should carefully examine the circumstances in which the identification(s) was made.
(3) He should also remind the jury of any specific weaknesses which had appeared in the ID evidence.
All of this applies even if W ID someone they know well
Is a Turnbull direction appropriate in relation to defence evidence?
No - 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
What is the consequence of failing to give an appropriate Turnbull direction?
Usually any conviction that follows will be quashed
N.B. not enough to pay lip service to the CA guidelines!
Are there hard rules as to when a Turnbull direction is needed and what form it must take?
No - it’s very fact-specific
E.g. it may be required where an alleged accomplice is ID’d
- One thing that was odd in the unit assessment given by the ICCA is that they thought that no Turnbull direction was necessary in the following case: “Joanna was a witness to a robbery. She saw the offence take place from some distance, it was night-time and the lighting was quite poor. She claims that the offender is Jason Butler. Jason is known to Joanna as they were in the same year at school, although they left school 4 years previously. Jason denies presence at the scene, claiming he was at home at the time of the robbery.”
- Reason: There are circumstances where a Turnbull warning doesn’t need to be given so the phrase “should always” is wrong. For instance, when the witness says that they know the offender and the accuracy of the witnesses identification is not being called into question by additional factors such as visibility, no Turnbull warning is necessary.
In determining whether a Turnbull direction should be given what are the key questions?
- Is the identification evidence being called into question (either expressly or by necessary implication - eg bc visibility was limited)?
- Does the case depend wholly or substantially on the identification evidence?
