Lecture notes
VISUAL IDENTIFICATION EVIDENCE NOTES
VISUAL IDENTIFICATION EVIDENCE NOTES - BPTC, CRIMINAL LITIGATION Notes in conjunction with BPP Law School Criminal Litigation Manual and Blackstone's Criminal Practice 2021.
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VISUAL IDENTIFICATION EVIDENCE NOTES1. Visual identification evidence and Turnbull Guidelines (Need be familiar with Turnbull)
F19.1 The visual identification of suspects or Ds by W’s is unreliable - mistakes by witnesses
and those who purport to identify persons they already know to them.
Three safeguards in place
1. PACE CODE D→ investigation stage. Governs procedures designed to test a W ability to
identify, under controlled conditions, any suspect he may claim to have seen or
recognised on a previous occasion. Also require W to provide the police with descriptions
of any offenders they claim to have seen, so that any subsequent identification can be
compared with the original description. Failure to comply with Code C must been taken
into account by the court and may result in exclusion of evidence.
2. Turnbull → trial stage. Prescribed rules to guide judges facing contested visual
identification evidence. Must be taken into account by MC.
3. Trials on indictment → P will not invite witnesses to identify D for the first time in court:
as to rule against ‘dock identification’
F19.2+3 Issues with Identification Evidence→ need to distinguish between IE and evidence
that incriminates by other means e.g. a mere description of the culprit or his clothing is not
identification evidence, even if it closely matches the appearance or clothing of the D NOR
where the W 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 IE,
the Turnbull guidelines do not apply.
A W who has made or who may be able to make an identification must usually take part in a
Code D identification procedure if the police have a known suspect available. BUT inability to
make an identification does not prevent the witness giving other evidence that might
incriminate D e.g. 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 e.g. if W claims to have known
D well and observed him at close range, unlikely any identification issue could arise.
BUT identification issues can arise even where the W claims to have recognised the suspect
as someone already well known to him, and issues not necessarily excluded even where the
defence involves an attack on W honesty e.g. Conway 1990: two W recognised C as man who
stabbed. He denied that he knew either and asked to be put on identification parade- police
said unnecessary. COA - identification became an issue as soon as C questioned the W ability
to recognise him. Would have been an identification issue and Turnbull would have applied.
Beckford (1993) → W claimed to recognise B as offender and knew well (D alleged false).
Held: possibility of genuine mistake as W far in distance from scene of crime and where
mistakes can be made at such distances, it was held TW should be given.
, General rule→ a TW should be given, even in cases of alleged recognition. BUT: Code D
identification procedure must not always be held whenever an identification issue arises as
often un-useful b/c W would inevitably identify the person he claimed to recognise.
F19.4 Dealing at Trial 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- TJ determines whether
they have caused significant prejudice to D (COA can usually be determined without the need
for a trial within a trial but this is not an absolute rule)
If no prejudice resulted from a breach → no case for excluding the evidence.
If some prejudice may have been caused → necessary to determine under s78 PACE 1984
whether the adverse effect would be such that justice requires the evidence to be excluded.
A TJ must give reasons for decision to admit identification evidence obtained in breach.
F19.5 IE will usually be excluded where important safeguards have been flouted. Nagah
[1991] → conviction quashed b/c evidence had been admitted derived from deliberately
staged encounter outside police station where D had been confronted by the identifying as
he left, after being told insufficient evidence to charge.
Failure to observe the requirements of Code D e.g. failing to hold a formal identification
procedure where an issue of potential identification arose, may affect other forms of
evidence against D. A careful direction to the jury may be needed, so they fully understand
the potential for prejudice caused by that breach or failure. The jury must ordinarily be told:
'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 give rise to ECHR e.g. in cases involving covert videotaping
of suspects (challenge to Art 8 if not performed in accordance with DL)
F19.6 Dock Identification → refers to the identification of an A for the first time during the
course of the trial itself (i.e. by a W who has not previously named him or identified him by
Code D identification procedure). A TJ retains discretion to permit dock identification, will
need to consider whether such course of conduct will jeopardise the fairness of the accused
trial. Such evidence is considered potentially unreliable- especially when a W who has failed
to pick out D at an identification parade is then invited to try to identify him in court (the fact
D standing in the dock is highly prejudicial) BUT dangers in dock identification may not be
present where the W 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'.
In view of the dangers posed by dock identification, the A-G and DPP undertook in 1976 that
in cases tried on indictment→ the P will not invite a W to identify, who has not previously
identified the accused at an identity parade, to make a dock identification unless the W
attendance at parade was unnecessary/impracticable, or there’s exceptional circumstances.
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