Visual Identification Evidence

Question 1

What is the test for original identification at police stage?

Answer 1

Procedures in PACE Code D: these test ability to identify under controlled conditions, any alleged suspect.

Question 2

What happens if there’s failure to comply with PACE Code D?

Answer 2

May result in the exclusion of any tainted identification evidence.

Question 3

What is the test for identification at court stage?

Answer 3

The Turnbull Guidelines govern contested visual identification evidence.

Question 4

What is ‘dock identification’?

Answer 4

Inviting a witness to identify D for the first time in trial - this does not happen on indictment.

Question 5

What is the difference between identification evidence and evidence that incriminates by other means?

Answer 5

Just a description of the culprit or their clothing is NOT identification evidence. Nor is seeing who was a driver.

Question 6

George [2002]?

Answer 6

Inability to make identification evidence doesn’t prevent a witness from giving evidence that may incriminate e.g. suspect description.

Question 7

When are Code D and Turnbull Guidelines not applicable?

Answer 7

Not applicable if the accuracy of the identification is not in issue.

Question 8

When is the issue of identification raised in court?

Answer 8

Whenever the principal line of defence attacks the honesty or truthfulness of the witness.

Question 9

What is the general rule whenever the matter of recognition is raised?

Answer 9

As soon as recognition is mentioned in court, a Turnbull warning should be given.

Question 10

What must courts do when Code D is breached?

Answer 10

Essential to determine if breach occurred and whether it caused significant prejudice to D.

Question 11

What happens if breaching Code D causes prejudice against D?

Answer 11

Court must then determine under PACE s. 78 whether the effect will be such that justice requires exclusion of the evidence.

Question 12

Nagah [1991]?

Answer 12

Identification evidence will usually be excluded where important safeguards are flouted e.g. entrapment.

Question 13

What can be a knock-on consequence of breaking Code D?

Answer 13

It can affect other forms of evidence against D, so directions should be given to the jury.

Question 14

What is an example of a Code D breach?

Answer 14

Failure to hold formal identification procedure where an issue of potential identification arose.

Question 15

When is dock identification permissible?

Answer 15

Although potentially unreliable, dangers are averted when the identification is a re-affirmation

i.e. ‘the person i already identified is in the dock’

Question 16

When will genuine dock identification be permitted in indictment trials?

Answer 16

Only when the witness’s attendance at a parade was unnecessary or impracticable or other exceptional circumstances. Otherwise it can be grounds of appeal.

Question 17

What is treated with equal apprehension to dock identification?

Answer 17

Where a witness is invited to court to identify D from CCTV evidence without having done so before - this can also be grounds of appeal.

Question 18

When are breaches of Code D treated more lax?

Answer 18

When dealing with minor summary offences e.g. road traffic. Although the rules themselves shouldn’t be changed for summary offences.

Question 19

What is the danger of dock identification?

Answer 19

That the witness will make one without the prompting of prosecution - then the judge would have to warn the jury to disregard the identification.

Question 20

What is Turnbull [1977] applicable to?

Answer 20

Any indictment trial involving disputed identification evidence; summary trials; voice identification and recognition.

Question 21

What is the 1st Turnbull Guideline?

Answer 21

Judges should warn juries of convincing but allegedly incorrect identification especially if the case relies on the testimony.

Question 22

What is the 2nd Turnbull Guideline?

Answer 22

Judges should direct the jury to consider the circumstances an identification was made in: distance; light; any special reason for remembering; any discrepancies.

Question 23

What is the 3rd Turnbull Guideline?

Answer 23

Judges should remind jury of any specific weaknesses in identification evidence.

Question 24

What is the 4th Turnbull Guideline?

Answer 24

The jury should be directed that errors can also be made in recognition, even if it is by a close relative or friend.

Question 25

What must be done if the prosecution are aware of discrepancies in any identification evidence?

Answer 25

They should supply the defence with particulars

Question 26

What is a discretionary judicial power over identification evidence?

Answer 26

If the trial judge considers the identifying evidence to be particularly poor in quality (e.g. a fleeting glance) they should withdraw the case from the jury and direct acquittal unless there's supporting evidence.

Question 27

What should the judge say about supporting evidence for identification?

Answer 27

The judge should identify to the jury any evidence that is capable of supporting the evidence of identification.

Question 28

Describe the scope of the Turnbull Guidelines?

Answer 28

ONLY apply Turnbull to trials where the prosecution case is substantially or more based on identification.

Question 29

What is the relevance of Turnbull Guidelines to the defence?

Answer 29

Turnbull directions are not appropriate in relation to identification evidence supporting defence, but general cautions on honest mistakes are permitted.

Question 30

What is the consequence of an absent Turnbull direction?

Answer 30

Absence of a Turnbull direction for a case, and even re-iteration for multiple Ds, USUALLY requires a conviction to be quashed as unsafe.

Question 31

What is meant by giving a Turnbull direction?

Answer 31

The judge cannot just mention Turnbull rules, they must link it to specific evidence and circumstances that might've affected the accuracy of the identification.

Question 32

Trew [1996]?

Answer 32

Judges must give Turnbull directions, but may point out that mistaken identification does not necessarily prove innocence of D or untrustworthiness of the witness.

Question 33

Bath [1990]?

Answer 33

Turnbull guidelines may need to be followed in identification evidence of an accomplice, otherwise there could be a knock on effect leading to a quashed conviction.

Question 34

When do the Turnbull directions not apply?

Answer 34

The guidelines are not applicable to cases involving identification of motor vehicles, or where Ds presence within a group with 1 accused is accepted.

Question 35

What evidence may be used to support a disputed identification?

Answer 35

Any admissible form of evidence: including Ds bad character or previous convictions, phone data, self-incrimination.

Question 36

What is the relationship between 2 or more disputed identifications?

Answer 36

They may be treated mutually supportive. 2 witnesses identifying D carry more weight, but the quality of each identification must still be individually assessed.

Question 37

What is a drawback of multiple disputed identifications?

Answer 37

If evidence proves or suggests W1 identified the wrong person, it undermines the reliability of W2.

Question 38

What's the relationship between disputed identification evidence and fabricated alibis?

Answer 38

Only when the jury is satisfied that the SOLE REASON for a false alibi was deception, as opposed to genuine error, will the fabrication support identification evidence.

Question 39

To use an alibi to support identification evidence what must be established?

Answer 39

Prosecution must show the alibi to be a purposeful lie that is DELIBERATE and MATERIAL with no other explanation.

Question 40

When can Ds silence enable a jury to infer that identification evidence is correct?

Answer 40

When D doesn't mention facts he relies on; accounts for any objects substances or marks or presence; or testifying.

Question 41

CJPO 1994, ss. 34-38?

Answer 41

Ds failure to mention facts later relied on, account for objects, substances, marks, or presence, or failure to testify, MAY entitle the jury to 'draw such inferences as appear proper'.

Question 42

How does the quality of identification witnesses vary?

Answer 42

Of course, physically, e.g. sight, age, but also police officers may be more observant because of their training.

Question 43

When do Turnbull Guidelines require acquittal?

Answer 43

Judges should direct an acquittal where identification evidence is (1) deficient and (2) unsupported by sufficient alternative evidence.

Question 44

Fergus [1993]?

Answer 44

Judges may allow the defence to submit evidence of the deficiencies and lack of support for identification evidence.

Question 45

When there is a wholly inadequate identification, how is insufficiency established?

Answer 45

A combination of Galbraith (no case to answer) and Turnbull (identification) should be applied to decide whether there's sufficient evidence.

Question 46

What is the quality of qualified identifications?

Answer 46

Where a witness says 90% sure or i'm not certain, this can be used alongside other evidence, but cannot be used by itself to convict.

Question 47

What is a submission of no case to answer?

Answer 47

Defence submits that the evidence does not disclose a case to answer in respect of some or all of the counts.

Question 48

What is the authority for no case to answer?

Answer 48

Galbraith [1981]

Question 49

When is the no case to answer procedure used?

Answer 49

Where there is some remaining evidence of tenuous character: weak, vague, or inconsistent

Question 50

What are the three outcomes of a submission of no case to answer?

Answer 50

(1) if there's no evidence, judge will stop the case; (2a) if Ps evidence taken at its highest is insufficient stop case (2b) if Ps evidence strength depends on view of witness reliability or other jury decisions, allow case.

Question 51

What is the 1st limb of the Galbraith test?

Answer 51

If there's no evidence to prove an essential element in the alleged offence whether as a matter of not meeting standard of proof or no direct evidence that no jury could properly draw from.

Question 52

What is the 2nd limb of the Galbraith test?

Answer 52

Judge considers whether the prosecution's evidence is too inherently weak or vague for any sensible person to rely on it.

Question 53

What is the statutory authority for a judge holding there's no case to answer?

Answer 53

Criminal Appeal Act 1968 s. 2(1): judges hold there's no case to answer because conviction on the prosecution evidence would be unsafe.

Question 54

What might mean that prosecution evidence has inherent weak or vagueness?

Answer 54

If the witness undermines their own testimony by conceding uncertainty about vital points or being manifestly contrary to reason.

Question 55

How should the judge approach evaluating evidence for a no case to answer hearing?

Answer 55

Should consider the quality and reliability of the evidence (and witnesses) rather than legal sufficiency

Question 56

What should not be done in a submission of no case to answer?

Answer 56

It's not appropriate to argue it as unsafe for the jury to convict, as that would invite the judge to impose their own views on the witnesses truth, which is the jury's jobq

Question 57

What is central to the Galbraith test?

Answer 57

assessing the reliability of the evidence - both its weaknesses and strengths.

Question 58

What is meant by 'inherently weak and tenuous evidence'?

Answer 58

Evidence that is self-contradictory and out of reason and all common sense: considering weaknesses and strengths.

Question 59

What is the proper approach to a submission of no case to answer?

Answer 59

(a) if no evidence, succeeds (b) if some evidence leave to jury (c) if weak evidence (improbability, inconsistency), succeeds

Question 60

What role does the truth of the witness play in whether there's a case to answer?

Answer 60

Whether a witness is lying or not is a matter for the jury. Unless inconsistencies are so great and the case would otherwise proceed on that evidence only - then it should be withdrawn.