Visual Identification Evidence + Turnbull Guidance

Question 1

How can the admissibility of disputed visual identification evidence be challenged?

Answer 1

1) Court has a discretion to exclude prosecution evidence if ‘the admission of such evidence would have such an adverse effect on the fairness of proceedings that the court ought not to admit it’

2) Commonly raised by D’s solicitor if methods used to obtain evidence by police constitute a significant and substantial breach of PACE or Codes of Practice

• Video ID – other images don’t resemble S
• ID parade – witnesses not segregated
• Failure to hold ID procedure when they should have

3) If they believe there has been a significant and substantial breach, D’s solicitor will:

• (i) ask court to exercise discretion to exclude the evidence
• (ii) If they decline to, undermine quality of evidence of original sighting of D by W and representations they can make under Turnbull guidelines

Question 2

When will the Turnbull guidelines apply?

Answer 2

1) These only apply where D disputes the visual identification made by a witness, either by denying presence at scene or denying involvement (where others are present who resemble D)

2) Applies to a witness who identifies D as the person committing the offence if:

• The witness picked D informally
• The witness identified D at a formal ID procedure
• The witness claims to recognise D as someone previously known to them

3) Guidelines won’t apply where W gives a description of D, but there is no direct visual ID evidence (they don’t pick them in the lineup etc)

Question 3

How do the Turnbull guidelines work in Crown Court?

Answer 3

1) Judge assesses quality of evidence of the original sighting by the witness, using various factors

2) If quality of original sighting assessed to be good:

• Judge will point out to jury the dangers of relying on ID evidence and the special need for caution when such evidence is relied on
• Judge will them it is easy for an honest witness to be mistaken
• Judge will direct jury to examine the circumstances of original sighting closely and consider above factors
• This is cumulatively known as a ‘Turnbull warning’

3) If quality of original sighting assessed to be poor, but supported by other evidence:

• Turnbull warning given as above
• Supporting evidence could include confession by D, forensic evidence of D at the scene and adverse inferences from silence

4) If quality of original sighting assessed to be poor and is unsupported:

• Judge will stop trial at the end of prosecution case and direct jury to acquit D
• D’s solicitor will make a submission of no case to answer

Question 4

How do the Turnbull guidelines work in the Magistrates’ Court?

Answer 4

D’s solicitor will address them on the guidelines and they will consider the same factors as the judge in the CC, in assessing the quality of original sighting by witness

If poor and unsupported, solicitor will make a submission of no case to answer at the end of the prosecution case

If good or poor + supported, they will refer to the guidelines and advise the MC to exercise caution when considering this evidence

Question 5

What factors are examined in deciding on the quality of evidence of original sighting of defendant by witness?

Answer 5

Length of observation (just a glimpse?)

Distance

Lighting (if at night, was there street lighting?)

Conditions (if outside, what were the weather conditions; if inside, did anyone or any part of the building obstruct the view?)

How much of S’ face did they see?

Was S already known to W or is it someone they had never seen before

How closely does the original description by W match physical appearance of D?