Identification Evidence

Identification Evidence

1. Special need for caution

   • there have been many MOJ based on ID evidence where multiple witnesses were mistaken
   • risk of witnesses being convincing and sincere, but wrong nonetheless

2. when the judge may withdraw ID evidence from the jury

   • the judge should withdraw ID evidence from the jury when the quality of the evidence is poor and unsupported
     • e.g of poor and unsupported evidence : fleeting glance
   • if the judge forms the view that the ID evidence is poor and unsupported, he should invite submissions from the parties and if appropriate withdraw the case.

3. nature and content of a Turnbull Warning

   • R v Turnbull: guidelines to be observed by judges when the P's case is wholly or substantially based on identification witnesses and ID is in dispute.
     • 1. the jury should be warned of the special need for caution. Mistaken witnesses can be convincing and a number of witnesses can be mistaken.
     • 2. the circumstances of the identification should be closely examined by the jury. Relevant factors: -length of time of observation, -distance from which observation was made, -lighting conditions, - any obstructions in view, -had the W seen D before and if so how often or was there some special reason fro remembering D, -time () the observation and subsequent ID procedure, -any material discrepancy () the initial description given by W and the actual appearance of D.
     • 3. Recognition is more reliable than identification. But, even a witness who recognises someone can still be mistaken.
     • 4. if the quality of the evidence is good, the danger of mistaken ID is lessened and the jury can be left to assess its value. BUT if the evidence is poor, the case should be withdrawn from the jury and D should be acquitted. the judge should identify for the jury evidence which is capable of supporting the ID and evidence which is not.
     • 5. 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.

4. content of a Turnbull Direction

   • no special form of words for a Turnbull direction
     • BUT it should contain the following:
       • i) explanation that the case relies wholly or substantially on ID evidence which is in dispute;
       • ii) a warning as to the special need for caution and the reasons for such caution;
       • iii) explanation that a mistaken witness can be convincing and that a number of witnesses can be mistaken;
       • iv) a direction to examine closely the circumstances in which the ID is made;
       • v) a reminder of any specific weaknesses in the identification;
       • vi) a reminder that mistaken recognition can happen, even with close friends and relatives;
       • vii) a highlight of the evidence capable of supporting the ID and the evidence which is not.

5. grounds for exclusion of ID evidence

   • ID evidence can be excluded under the common law or s.78 PACE.
     • can be excluded if the evidence is unreliable, obtained in bad faith or obtained in breach of a fundamental right
     • a breach of PACE code does not automatically lead to exclusion.

6. how to make or challenge applications to exclude ID evidence

   • counsels will make & challenge application by submissions to the judge in the ABSENCE of the jury
     • in rare circumstances: necessary to hold a voir dire
     • if appropriate, after close of P case, defence may make a submission of no case to answer based on the fact that the evidence is poor and unsupported. if successfull, case withdrawn from the jury.

7. when judge might warn the jury about ''suspect'' evidence

   • generally there is no need to warn the jury about the dangers of uncorroborated evidence unless there is statutory requirement or the witness evidence is suspect (unreliable)
   • R v Makanjuola
   • It is now within the judge’s discretion to give such a warning, a discretion which he will exercise in accordance with the principles in Makanjuola. He will only give such a warning if there is an evidential basis for suggesting that his evidence is unreliable. The mere assertion by counsel that he is lying would not provide such a basis.

8. A Turnbull direction is not required when:

   • i) there is no real question of mistaken identity
   • ii) when the evidence given is of general characteristics and would not identify a person; OR
   • iii) D alleges that the W is lying about having identified D.

9. if judge fails to give a Turnbull direction when required and D is convicted OR a defective Turnbull warning was given, the conviction will probably be quashed on appeal.