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Identification & Expert Evidence Notes

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This is an extract of our Identification & Expert Evidence document, which we sell as part of our Criminal Procedure and Evidence Notes collection written by the top tier of Oxford students.

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CPE

IDENTIFICATION & EXPERT EVIDENCE
IDENTIFICATION
& EXPERT EVIDENCE

IDENTIFICATION EVIDENCE

• Identification evidence is inherently unreliable

• Several grave miscarriages of justice e.g Adolf Beck & Motton

• Devlin Committee 76: reported it carries a special risk of wrong conviction

• Value of evidence of identification v difficult assess & no way of deterring mistakes witnesses normally confident of who they saw, even if mistaken

• Since, courts & legislature have tried to reduce risk - Turnbull 76 + PACE Code
D

• R v Turnball (CA, 76): basically implemented Devlin's recommendations

• Imposes duty:
i) to warn if prosecution relies wholly/substantially on contested ID evidence,
ii) or to withdraw case from jury if ID evidence poor & unsupported

• note judicial direction needs be clear/compartmentalised (Servis)

• Daley: shopkeeper identified D as killer but only saw from concealed hiding place not good view - was basically only evidence against D - had to withdraw

• Dassett 13: witness was only piece of evidence but had good look for several minutes - no problem

• but as pointed out by Lord Steyn in Mills Turnbull is not a statute

• Judge still has broad discretion to do in own way but should comply with sense &
spirit of guidance in Turnbull

• Turnbull explains form of warning, now in specimens directions:

• Special need for caution & give reason

• Give circs of ID & reliability of recall - explain specific weaknesses of the ID

• Itemise potential 'supporting evidence'

• If false alibi - say this doesn't necessarily = guilt (plenty of people do this)

• If evidence obtained in breach of Code D & admitted, comment

• Pattison & Exley 96 no mandatory requirement of separate summary in every case but if given, must be complete & deal with all aspects

• Particularly emphasise specific weaknesses

• Nash: importance of the direction emphasised - ensure full force of Turnball conveyed

• Exact words irrelevant but ensure summing-up exposes jury to dangers Turnball sought address

• Might think withdrawing case might conflict with 'no case to answer' Galbraith

• but PC in Daley said compatible

• If courts fail warn when should have, appellate courts will consider it seriously

• Reid v R 79: allowed appeal (but no retrial)

• Shand v R 96: only rarely should court dispense with the direction even if only ID
witness's credibility in issue

• When is Turnball warning necessary?

• note duty to warn only applies to visual ID cases

• Atkinson 87: palm-print - Turnball not required

• Browning: car ID - Turnball warning not necessary here

• Conibeer 02: necessary as D admitted there, q was what he did

• Huddart 99: no Turnball warning/procedure where is a dog and D, the owner, was convicted for not keeping him under control!
Page 1 of 11 CPE
I) SUPPORTING EVIDENCE:

a) Corroboration (Turnbull) - things like DNA etc b) Other IDs: Devlin Committee said shouldn't

• but Weeder 80 said yes - 1 witness' statement may support another

• Pattison & Exley 96: 2/more positive IDs - jury must be warmed c) Odd coincidences e.g Penny 92 one of juror's randomly knew public toilet mentioned was closed at time, undermining story d) False alibis/Alibis: Lesley 96 judge should routinely tell jury that alibi sometimes invented to bolster a true defence

• More generally lies can support a visual ID but need Lucas direction on how jury can use lies!
e) Propensity evidence: s.101 CJA 03
II) FLEETING ENCOUNTER VS RECOGNITION

• Turnbull said remind jury mistakes sometimes made even where witness purporting recognise s.o he knows

• Ley 07 'There are recognition cases and recognition cases' - degree of familiarity &
circs of ID are relevant

• May get probs where police 'recognises' D - has connotations that D is a criminal as they are known to police, or where ID' d police photos e.g Campbell

• Must comply with Code D - just need explanation with as little prejudice as possible as to how know it's him - don't need disclose full record

• Note some evidence from LSE suggests conviction rate higher where Turnbull warning given - may need question if it achieves what intended!

• Taylor v CC of Cheshire 86: shoplifting - CCTV - is a fleeting glimpse any less fleeting because it has been played again & again? Not answered in case but may suggest Turnbull direction unnecessary….
III)

MEANS OF IDENTIFICATION

a) Identification procedures

• Set out in Code D PACE 84 - latest version 2017

• Previous version already ended primacy of ID parade

• Police figures suggested half of ID parades cancelled because D didn't show up/refused

• Video IDs cancelled in only 5% cases - Valentine & Heaton suggest fairer then live - by 2004/5 98% ID parades conducted using video tech - saved lot of time &
£143m

• Originally had to hold ID parade whenever suspect disputes ID & consents - or where PC considers useful & D consents

• Para 3.12 If before any ID procedure has been held a) Eye-witness has suspected/purported to have identified them b) There's eye-witness available who expressed ability identity suspect, or c) Reasonable chance of eye-witness being able identify suspect

• And eye-witness in a-c not been given opp identify suspect in 3.5-10 procedures,
ID Procedure held whenever suspect disputes ID unless not practicable/serves no useful purpose in proving/disproving D's involvement

• e.g where D admits bring at scene & eye-witness doesn't contradict

• or where not disputed D well known to W

• 3.13 adds, may be held if officer in charge considers useful

• 3.11 when ID procedure required, must be held ASAP in interests of fairness to suspects & witnesses
Page 2 of 11 CPE

• note done away with consent requirement/doesn't specify - D can refuse but consequences

• 3.14 says initially offer video ID unless not practicable, ID parade practicable &
more suitable, or Para 3.16 applies - thus preference to vid ID

• 3.5 Video ID = W shown moving pictures of known suspect, together with others who resemble D

• 3.7 ID parade = line of at least 8 plus D (/8 others resembling D)

• Normally 1 suspect per parade but if 2 suspects, can do 1 parade with at least 12 others (where the 2 suspects look similar)

• 3.16 group ID = when witness sees D in informal group - if officer thinks more suitable than video or parade & considers it practicable - 3.9

• 3.15 if D refuses first procedure, can give reason & get advice & may make rep as to why another method should be employed - officer may select another if considers suitable & practicable

• 3.17 means if D refuses cooperate, refusal may be given in evidence at trial &
police can use covert methods to identify him

• 3.21 if suspect known but unavailable, can use still images if necessary - can be obtained covertly

• 3.23 if none other options practicable, officer can resort to confrontation - doesn't require D's consent

• but can't use force - Jones & Nelson last resort

• note ID procedure meant test witness' ability pick person out, so not needed if
IDs D through circumstantial evidence e.g Parry v DPP - identified by yellow jumper & car reg

• Failing hold procedures of failure warn jury of that failure may -> quashing e.g
Gojra 10

• Informal ID allowed under 3.2 e.g Hickin 96 - assault Vs taken in police car to look for their aggressors - subject to same procedures as above under Code D

• Some forms of video ID not covered by Code D e.g Jones 93 pub doorman viewed vid of people entering pub to ID assailants - said equivalent to street/group ID

• When interpreting/applying Code D, remember purpose = fair procedure &
getting reliable evidence

• Forbes 01 HL said Code D = intensely practical & can't read exceptions into 3.12

• Must be given parade if asks unless not practicable!

• Nicholson 2000 V attacked from behind so said couldn't make ID - no need do procedure - would be futile - hence 2nd part of 3.12

• John v Trinidad & Tobago 09 PC gave some guidance - said where witness &
suspect well known to each other, no need for ID procedure - if W claims know D
but D denies then if conclude some value in parade to test the ID then ask if failure = serious miscarriage b) Dock identifications

• Only normally acceptable if witness already identified D at ID procedure

• Not really approved of but technically admissible - Fergus 92

• Will only not be permissible in exceptional circs - Tido v R 11

• but Lord Rodger in Holland v HM Advocate 05 - Scottish case but same applies

• danger: dock ID lacks safeguards offered by procedures & position in dock increases risk of wrong ID (due to human psychology )

• Especially risky where failed ID in ID parade - q is whether unfair under Art 6

• Rules tend to be more relaxed in magistrates - Barnes 98 - said if every careless driving case had gone through ID parade, process of justice would be impaired

• Nonetheless, clear court may need revise this q
Page 3 of 11

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