Visual Identification evidence

Question 1

What’s NOT visual ID?

Answer 1

• Mere description of culprit or clothing (i.e. physical characteristics)
• Statement that culprit drove a particular vehicle, or companion of an ID’ed person

Descriptive ID

Question 2

Where accuracy of ID evidence is not in issue but instead W’s honesty. What’s NOT considered in this situation?

Answer 2

Neither PACE Code D nor Turnbull guidelines need be considered — otherwise merely risk confusing jury by focusing on wrong issue

Question 3

What’s Visual Identification?

Answer 3

Visual Identification from eyewitness is 1 way of proving D committed crime

Question 4

Can ID issue arise even where W claims to recognise someone well known to them?

What direction should be given in these instances?

Answer 4

Yes, ID become an ISSUE

Even where’s the main line of defence BUT only where the possibility to a genuine mistake remains

Solution is to attack W honesty/truthfulness

• Turnbull direction where there an alleged recognised
• Code D is not useful in these instances

Question 5

What safeguards should be considered where the accuracy of ID is not an issue but the honesty of W is the issue?

Answer 5

None (no Turnbull or code D PACE)

• risks of confusing jury by focussing on wrong issue

Question 6

What are the 3 safeguards to Visual ID?

Answer 6

1) PACE code D
2) Turnbull Guidelines (apply at trial stage)
3) Rule against dock identification on trials on indictment

Question 7

What’s the procedure PACE code D puts on place to test W’s ability to ID?

Answer 7

W who makes a Visual ID may be invited to take part in a CODE D procedure if police have a known suspect

• Done under controlled conditions + test the ability to ID
• Ws must provide PO descriptions so they be compared w/ original description (to test accuracy of ID)

Question 7

Re: PACE Code D (consequence of breach not passing the test) - When will evidence be excluded? What’s the effect of not excluding evidence?

Answer 7

Excluded if:
- important safeguards have been faked (deliberately encounter W outside PS)

If evidence not excluded?

• judge must give reasons to admit evidence obtained in breach
• need to help jury understand the prejudice caused by breach and giving it weight as they think fit (e.g. W has lost the benefit of important ID safeguard)
• Not need for a voir dire

Question 7

Where there’s been a breach of code D does not inevitably lead to exclusion of tainted evidence. What’s the test to assess the breach?

Answer 7

Whether breach may have caused significant prejudice to D?

no: no exclusion

Some prejudice may have been cause:
- is the adverse effect of admitting this evidence such that justice required the evidence to be excluded? s.78 PACE

Question 8

Where there’s been a breach of visual ID evidence, what test must be considered when some prejudice may have ben caused to D?

Answer 8

S. 78 PACE

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

Question 9

What’s the rule against dock ID?

Answer 9

Dock ID refers to the identification of A for the first time during the course of the trial itself (i.e. by a W who has not previously named or identified D by means of a Code D ID procedure)

Question 10

P will not invite Ws to identify D for the first time in court [on indictment] - unless?

Answer 10

1) W’s attendance at an earlier ID parade was unnecessary/impracticable [might be impracticable e.g. in minor summary offences],

(2) W invited to court to identify (for the first time) A from CCTV

or

(2) exceptional circumstances

Question 11

Can the use of dock ID lead to successful appeals against conviction?

Answer 11

Yes, it may

Question 12

If W makes unsolicited dock ID, what the the judge do?

Answer 12

Trial judge may direct jury against giving it any wight or importance

Question 13

D not in custody & W identifies him at court - what happens here?

Answer 13

May need to be excluded, especially if considerable time has elapsed since alleged offence

Question 14

W’s ability to make a leisurely ID not in doubt (recognition) - what happens?

Answer 14

May be admitted but a Turnbull direction still needed

Question 16

When should a Turnbull direction be given?

Answer 16

Case against A depends WHOLLY/ SUBSTANTIALLY on correctness of one or more IDs of A which D alleges to be mistaken

Question 17

When giving a Turnbull direction the judge should: first Warn jury of special need for caution before convicting in reliance on the ID - and 3 more?

Answer 17

(1) Reason for the need for this warning

(2) Possibility that a mistaken W can be a convincing one

(3) A number of convincing Ws can all be mistaken

Question 18

When giving a Turnbull direction the judge should: 2) Direct that recognition may be more reliable than ID of a stranger - and (1)?

Answer 18

• mistakes still happen in recognition of close friends/ relatives

Question 19

When giving a Turnbull direction the judge should: 3) Direct jury to closely examine circumstances in which observation made - and (8) more?

Answer 19

Examination of circumstances include:
1) Time under observation
2) Distance away
3) Lighting quality
4) Impediment to observation
5) Previously seen A
6) Frequency of previous sightings
7) If only occasionally, any special reasons for remembering A
8) Time lapse between original observation and subsequent ID

Question 20

When giving a Turnbull direction the judge should: 4) Actively identify (& remind jury of) any weakness in ID evidence - and (2) more regarding P/D duties?

Answer 20

1) If P has reasons to believe there is discrepancies, MUST supply D w/ police description

2) and where D asks for police description P should give

Question 21

When giving a Turnbull direction the judge should: 5) Actively identify any supporting evidence - and (2) more?

Answer 21

1) warn jury against reliance on anything that appears supportive but isn’t really

2) prior discussion w/ judge and counsel advised so judge knows how counsel intends to support/undermine ID evidence and counsel can get judge’s views

Question 22

What’s the form of the judge’s Turnbull direction? (3)

Answer 22

1) must be tailored to facts of case
2) jury must be warned that direction is based on past experience
3) robust direction required where P adduces hearsay ID evidence in statement of W who doesn’t testify at trial

Question 23

What’s the consequence of an inadequate Turnbull direction?

Answer 23

conviction quashed as unsafe (unless other evidence overwhelming)

Question 24

An inadequate Turnbull direction will normally quash conviction as unsafe, but there’s 3 exceptions. What are they?

Answer 24

1) principal/ sole defence if challenging credibility of ID’ing W (in rare cases a Turnbull warning is not required or can be given more briefly)

2) ID of motor vehicles ( reliability lies on satisfactory opportunity to see vehicle and ability to distinguish between model - this should be drawn to jury’s attention)

3) D’s presence at scene of crime is admitted and W IDs a person in a well-identified group as the one who struck him

Question 25

What type of evidence is capable of supporting W ID? (4)

Answer 25

1) Bad Character or previous conviction
- needs careful handling

2) Mutually supportive IDs
- 2 + disputed IDs if D can be treated as mutually supportive (carried more weight)
- Each must be of sufficient quality
- Jury must consider quality of each W’s ID evidence separately

3) Self-incrimination
(next Q)

4) A’s silence
(next Q)

• These are not evidence of G
• Not a substitute for satisfactory ID evidence
• May lead to inferences that P evidence is correct and that D has not defence

Question 26

Supporting evidence of Turnbull can be self-incrimination. What are the considerations here?

Answer 26

3) Self-incrimination
- Disputed ID can be supported by an admissible confession (care needed where D have incriminated themselves by false abilis/ other lies)

• Before self- incrimination by lies can support an ID:
  a) lies must be deliberate and material
  b) court/jury must be able to discount possible innocent motive for lies
  c) lies must be proved by other evidence (other than IDs)

Question 27

Supporting evidence of Turnbull can be A’s silence. What are the considerations here?

Answer 27

4) A’s silence
D failure may entitle jury/court to draw such inferences as appear proper:

a) to mention facts when questioned/ charged which they later rely on as part of their defence

b) to account for objects/ substances/ marks on their body/clothes/possession

c) account for their presence in x place

d) to testify in their trial

Question 28

Regarding the quality of W ID. There’s some conditions of Ws that affords them more/less reliability. These should be considered, what are these?

Answer 28

1) Some Ws are better than other ( perfect vision vs nearly blind)

2) PO by virtue of training are more observant (more reliable)

Question 29

When stopping a trial based on inadequate ID, the court should apply ‘an acute combination of Galbraith & Turnbull’, looking principally at (1)?

Answer 29

Test: is there sufficient evi on which a jury could properly convict? (need not be particularly strong and be felt to juru despite D pointing out several deficiencies in evi)

1) Quality of ID evidence:

a) Good - leave to jury even where there’s no other evidence to support it = Turnball direction MUST be given

b) Poor/deficient (e.g. fleeting glimpse) - withdraw from jury and direct acquittal (unless more evi to support correctness of ID evidence

• D cannot be properly convicted on qualified ID evidence alone (must be SURE) but can be supported by reliable evi (bad character, silence, self-incrimination, mutually supportive ID)

Question 30

When can D submit ‘no case to answer’?

Answer 30

After P have closed case, D may submit that evidence does not disclose a case to answer in re: of any / all the counts on the indictment

Question 31

What’s the test for no case to answer? (Galbraith)

Answer 31

TEST: whether P evidence is such that, taken at its highest, a jury properly directed cannot properly convict on it

Question 32

Under the Galbraith (when submitting a no case to answer) what are the 2 limbs to be considered by the judge?

Answer 32

1) No evidence that the crime alleged has been committed by D

• no direct evidence to an element and inferences P asks the court to draw are based on circumstantial evi that no jury could properly drawn on

2) ) Some evidence, but of tenuous character (e.g. inherently weak/vague, or inconsistent w/ other evidence)

• judge to assess whether evidence too inherently weak/ vague for any sensible person to rely on it

NB:

• Where P evidence strength/weakness depends on differing views as to credibility of a W = leave to jury
• Court should not consider issues of credibility / reliability except in the clearest cases