Visual Identification evidence.docx

*Visual Identification evidence -- 3 Qs* The visual identification of suspects or defendants by witnesses has long been recognised as potentially unreliable. Three safeguards are now in place. - The first can now be found in PACE Code D. The procedures prescribed by Code D (insofar as they...

*Visual Identification evidence -- 3 Qs* The visual identification of suspects or defendants by witnesses has long been recognised as potentially unreliable. Three safeguards are now in place. - The first can now be found in 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 other safeguards apply at the trial stage. 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. - 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', see F19.6. *What is the difference between identification evidence and evidence that incriminates by other means?* - 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. - If there is no identification evidence, the *Turnbull* guidelines do not apply. - 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 if the police have a known suspect available (Code D, para. 3.12); but inability to make an identification need not prevent the witness giving other evidence that might incriminate D, such as a description of the offence or offender. 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. In such cases any attempt to apply the *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. - Identification issues can easily arise, even where the witness claims to have recognised the suspect or accused as someone already well known to the witness, and they are not necessarily excluded even where the principal line of defence involves an attack on the honesty or truthfulness of the witness. Two witnesses claimed to have recognised D as the man responsible for a stabbing and he was arrested. He denied that he knew either of the witnesses and asked to be put on an identification parade, but the police took the view that this was unnecessary, as D was a 'named person'. The Court of Appeal held this to be wrong: *identification became an issue as soon as D questioned the witnesses' ability to recognise him*, and the identification procedures laid down in Code D should have been followed. The general rule, therefore, is that an appropriate *Turnbull* warning should be given, even in cases of alleged recognition. - Witness claimed to have recognised D and others as they committed the alleged offence. He knew them well. The defence alleged that his evidence was wilfully false, but the Privy Council nevertheless held that there was also a possibility of genuine mistake. 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, and it was held that a *Turnbull* direction should have been given. It does not follow that a Code D identification procedure must always be held whenever an identification issue arises. Such a procedure will often serve no useful purpose in a 'recognition' case, because the witness (even if mistaken) would almost inevitably 'identify' the person the witness has claimed to have recognized. *How to deal with breaches of PACE Code D?* - 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. - The determination of such facts can usually be accomplished without the need for a trial within a trial, but this cannot be an absolute rule. The holding of a trial within a trial was not, for example, criticised - If it is clear that no prejudice resulted from a breach or failure to observe Code D, there will be no case for excluding the evidence. If, on the other hand, some prejudice may have been caused, it will be necessary to determine, under the PACE 1984, s. 78, whether the adverse effect would be such that justice requires the evidence to be excluded. - A trial court or judge must give reasons for any decision to admit identification evidence obtained in breach of Code D Identification evidence will usually be excluded where important safeguards have been flouted. - D's conviction was quashed after evidence had been admitted at his trial derived from a deliberately staged encounter outside the police station, in which he had been confronted by the identifying witness as he left, after having been told that there was insufficient evidence to charge him. He had previously agreed to stand on an identification parade, but this was never held. - Failure to observe the requirements of Code D (e.g., by failing to hold a formal identification procedure where an issue of potential identification arose) may affect other forms of evidence against D and a careful direction to the jury may be needed, so that they fully understand the potential for prejudice caused by that breach or failure. - The jury must ordinarily be told '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'. - Failure to comply with Code D may also give rise to issues under the ECHR, notably 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. *What is Dock identification?* - 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. (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 and 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. - But the dangers inherent in a dock identification (as defined above) may not be present where the witness says, 'the person whom I have *already* identified to the police as the person who committed the crime is the person who stands in the dock'. Cases tried on indictment -- - The \[prosecution\]... will not invite a witness to identity, 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. The sue of dock identification may accordingly be grounds for successful appeal against conviction and this may equally apply where the witness is invited in court to identify D from CCTV evidence, having not identified D before. But different considerations may apply in respect of minor summary offences, such as road traffic offences where holding of a parade or similar CODE D provision may be impracticable. - The rule of practice that applies to trials on indictment 'has singularly little application to the everyday activities of the magistrates' court' - 'It cannot be sensible to require identity parades to be held in all motoring cases, in circumstances where there is no reason to believe that identity is in issue. - The Divisional Court rejected the notion that less strict identification rules should apply in respect of summary offences. Whether dock identification infringes the right to a fair trial under the ECHR, Article 6, depends on all the circumstances of the case. Such a procedure cannot be said to be unfair per se. 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 (as in *Thomas \[1994\] Crim LR 128*), it may be necessary for the trial judge to warn the jury against giving it any weight or credence. 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. - 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. - The prosecution actually arranged for a group identification in the foyer of the court building as D arrived and this evidence was properly admitted at trial. 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 - The Court of Appeal in *Reid* was anxious not to encourage dock identification, but saw no reason to interfere with the trial judge's decision to admit recognition evidence in that case, notwithstanding that no identification parade or group identification had been held. - A *Turnbull* direction was still needed, but it was not a case in which the witness's ability to make a leisurely identification was in doubt. *What are the Turnbull guidelines --* In response to widespread concern over the problems posed by cases of mistaken identification, the Court of Appeal in *Turnbull \[1977\] QB 224* laid down important guidelines for judges in trials that involve disputed identification evidence. The guidelines are also applicable, mutatis mutandis, in summary trials and to cases of voice identification or voice recognition (see F19.24), and are reproduced in abridged form below: 1. 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. 2. 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. 3. 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. 4. 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. 5. 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. 6. 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.... 7. 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. *What are the scope of the Turnbull guidelines?* - Not appropriate for identification evidence supporting the defence, may be appropriate to remind the jury of the need to be cautious in assessing such evidence, given that honest mistakes can be made. - 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 - 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. - Where the principal or sole means of defence is a challenge to the credibility of the identifying witness, 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 is challenged. - Paying lip service to the guidelines will not be enough nor will it suffice to give a general warning without reference to any evidence that may support or undermine the identification, or to any circumstances that may have affected the accuracy of the witness's observation. - One of the grounds on which D's conviction was quashed was that the trial judge had failed to remind the jury of specific weaknesses which had appeared in the identification evidence on which the prosecution case largely depended. But 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. - 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. - 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. - A particularly robust *Turnbull* direction may be needed 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. - It was held in *Oakwell \[1978\] 1 All ER 1223* that the guidelines were 'intended primarily to deal with the ghastly risk run in cases of fleeting encounters' and were not applicable to a case in which the witness may merely have been mistaken as to which person in a well identified group had struck him. In that case the judge had drawn the jury's attention to the possibility that the witness may have been momentarily unsighted, and this was held to be sufficient. (The Court of Appeal held that this principle was applicable only to situations in which D's presence at the scene of the crime is admitted.) 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. - It does not follow from *Oakwell* that no *Turnbull* direction would ever be necessary if D's presence at the scene is admitted. - Recognition evidence will often be more reliable than identification of a stranger, but may still be erroneous. Many people have experienced seeing someone in the street whom they knew, only to discover that they were wrong. The expression, 'I could have sworn it was you' indicated the sort of warning which a judge should give, because that was exactly what a testifying witness did --- he swore that it was the person he thought it was. But he may have been mistaken... *What is Supporting evidence?* - Evidence capable of supporting a disputed identification may take any admissible form, including D's bad character or previous convictions, analysis of cell site and mobile phone data, self-incrimination, and evidence of identification by other witnesses. - 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'. - Evidence of bad character may need particularly careful handling in this context. (D was charged with a sexual offence and the jury were told of his previous convictions for sexual offences, without being told that these were the only reason for him being included in the identification parade in the first place. The jury may thus have supposed it to be an 'enormous coincidence' that the man then identified by the complainant had convictions which bore some similarity to the case before them, but it was in reality no coincidence at all). His conviction was quashed. - 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. *What are mutually supportive identification?* - It is permissible in appropriate cases for two or more disputed identifications of D to be treated as mutually supportive. - 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 (*Tyler*) and in some cases the identifications may relate to separate incidents. - 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 - W1 identification of D for one offence and W2 identification of D for another strikingly similar offence committed on another offence are treated as mutually supportive then, fresh evidence tending to prove W1 identified the wrong person may also undermine the W2's identification in the other offence. *What is self-incrimination?* - Disputed identification evidence can clearly be supported by an admissible confession, but 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; an accused, for example, who has only his own truthful evidence to rely on may stupidly fabricate an alibi and get lying witnesses to support it out of fear that his own evidence will not be enough. - Further, alibi witnesses can make genuine mistakes about dates and occasions like any other witnesses can. 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. - 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. *What about the accused's silence?* Although Lord Widgery CJ warned in *Turnbull \[1977\] QB 277* that D's failure to testify must not be viewed as capable of supporting the evidence against D, this must now be reconsidered in the light of subsequent legislation. 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. *What about the quality of witness?* - There is no doubt that some witnesses may be capable of providing more reliable identification evidence than others in the same position. A witness with perfect vision may clearly be expected to do better than a myopic witness who has lost his or her 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. That suggestion was rejected by the Privy Council in *Reid v The Queen \[1990\] AC 363*, but was subsequently held to be quite proper by the Court of Appeal in *Ramsden \[1991\] Crim LR 295*, where Lord Lane CJ opined that it would be wrong for a trial judge not to direct the jury as to the potentially greater reliability of police identification. *Will the trial be stopped based on inadequate information?* - 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 - In such cases, the Court of Appeal may quash any conviction, even though the judge's direction on the evidence was otherwise impeccable. - There is rarely any issue as to whether prosecution witnesses are attempting to tell the truth, but it may still be necessary to decide whether there is sufficient evidence on which a court or jury could properly convict. - Such evidence need not, however, be particularly strong, and a case based on largely unsupported identification evidence may still be left to the jury even though the defence can point to several potential deficiencies in that evidence. - 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.