Visual identification of suspects

From CrimeLine from Andrew Keogh

Devlin Report 1976

Cases that led up to the establishment of the Devlin Committee on evidence of identification in criminal cases 1976:

Beck’s Case: One of the most notorious English cases was that of Alfred Beck, who was picked out in identification parades by 12 women, served seven years and then was released. As the offences continued he was again picked out by four women in a line-up, was convicted and was awaiting sentence when the real culprit was finally apprehended. Beck’s case lead to the establishment of the English Court of Criminal Appeal in 1908.

Slater’s Case: Another notorious case was that of Oscar Slater who served 18 years for murder owing to a wrong identification. Two persons identified Slater as the man leaving the house after a murder, and 12 others identified him as having earlier kept watch on a house, but only after witnesses had seen him in custody before identifying him. Slater’s case led to the establishment of the Scottish counterpart of the Court of Criminal Appeal in 1926.

Dougherty’s Case: In 1972 Luke Dougherty was charged with shoplifting after two witnesses independently picked out his photograph from a police album and identified him as one of team of shoplifters. He was also identified in the dock during the trial. Although he had an alibi, and no trace of either accomplice was found, Dougherty was convicted and sentenced to 15 months imprisonment. The sentence was affirmed on appeal. Whilst serving his sentence, Dougherty’s case was taken up by ‘Justice’, an association of lawyers concerned with the fair administration of justice. Acting on a submission from Justice the Home Secretary, exercised his power to refer the case to the Court of Appeal for further consideration. The Court ordered Dougherty’s immediate release on bail, and ultimately quashed his conviction.

Virag’s Case: In 1969 Laszlo Virag was charged with thieving from parking meter coin boxes, using a fire arm to resist arrest and wounding a police officer with intent to cause grievous bodily harm. Of 14 witnesses, eight identified Virag in a line-up; five of these eight were police officers. Three witnesses picked out someone else and the remaining three made no identification. Identification evidence was the only evidence led against him. One police officer testified in court that ‘his face is stamped on my memory’. Although Virag had an alibi, did not drive a car—the culprit had been involved in a car chase with police—and smoked a brand of cigarettes different from the brand smoked by the culprit, he was convicted and sentenced to ten years in prison. Whilst Virag was in prison, a second man was arrested and charged with thieving from parking meters. Further investigations indicated that it was he who had committed the earlier offences. Virag received a pardon. As a result of the wrongful convictions of Dougherty and Virag the Devlin Committee on evidence of identification in criminal cases was established.

Metropolitan Police Officer: In one case where a member of the Metropolitan police attempted to intercede for a neighbour of unblemished character who was charged by the City of London Police on implausible identification evidence, the result was that he himself was put on parade, wrongly identified and immediately suspended from duty as being under suspicion of being concerned with the same offence.

Professor Glanville Williams, when commenting on the Devlin Report on English identification procedures noted that:

Neither the Beck case at the turn of the century nor the many miscarriages of justice since then have sufficiently impressed those concerned with criminal justice of the dangers of identification evidence. To mention some of the instances in late years: three occurred alone in the space of a few months in 1967-68. A memorandum of the National Council of Civil Liberties published in 1968 gave details of 15 cases from 1966 onwards; in most of these a person was convicted on identification evidence and the mistake was either established or very likely; in a few of them the defendant had not gone beyond being committed for trial when by a happy accident the mistake was discovered. A memorandum later in the same year from Justice instanced another six cases and others have occurred since. In all of them the mistake came to light in some fortuitous way as by the real offender coming forward and confessing.

Australian Law Reform Commission

BBC News Reported The aftermath of the shooting of Jean Charles de Menezes at Stockwell Tube station has shown that eyewitness testimony may not always be as reliable as it seems.

Andrew Roberts, a lecturer in law at Leeds University specialising in evidence, said courts have recognised for a long time that eyewitness identification evidence is "inherently unreliable". Two cases helped change the view in British courts, he said. In 1969, Laszlo Virag was convicted of stealing from parking meters and using a firearm while trying to escape police officers. Despite his alibi and other contradictions, he was identified by eight witnesses as the man who committed the crime. While he was in prison it was found another person had committed the crime and he was pardoned.

In 1972, Luke Dougherty was convicted of shoplifting after two witnesses picked his face out of a police album. He was eventually cleared and both cases led to the Devlin Committee's investigation of identification evidence, which found that many witnesses overstated their ability to single out the right person.

Misidentification where Suspect known to Witness

The Devlin Committee referred to the following cases: A witness to a smash and grab raid identified one of the offenders as a man known to him by his nickname for about five years, and claimed to have confirmed this recognition when he got a half view of the man’s face in the course of the chase that followed. The accused was acquitted at a re-trial when further alibi evidence was called. (Case of W, 1964).

A garage attendant who was the victim of an assault said that just before the attack, he thought he saw X whom he knew well by sight, standing at a nearby bus shelter. He subsequently positively identified X as his assailant, saying ‘When he came towards me I recognised him as X himself ... whilst I was being attacked I saw the face of the person attacking me. t recognised that face. It was Mr X.’ X was granted a Free Pardon when another was found reliably to have confessed to the offence. (Case of X, 1969).

A police witness to a daylight burglary claimed to recognise one of the participants two days later as a man known to him for some years by name and sight. It subsequently transpired that the witness had known the accused only by sight. He was granted a Free Pardon when another was found reliably to have confessed to the offence. (Case of Y, 1962).

One of the officers who stopped a lorry which contained stolen butter said that as the lorry approached he had recognised the accused as the driver, but subsequent inquiries revealed that he had not seen the man he identified before the time of the offence. The conviction was quashed when further evidence substantiated the accused’s alibi. (Case of Z, 1949).

Australian Law Reform Commission

Turnbull guidelines

Regina -v- Turnbull and Others WLR [1976] 3 WLR 445

It wasn’t until the case of: R v Turnbull 1976, 63 Cr App R 132; [1977] QB 224 (CA) that the Court of Appeal laid down guidelines on how the jury should be directed in relation to disputed eye-witness identification evidence. When directing the jury, the judge is required to tailor the Turnbull guidelines to the facts of the particular case.

LORD WIDGERY C.J.:Each of these appeals raises problems relating to evidence of visual identification in criminal cases. Such evidence can bring about miscarriages of justice and has done so in a few cases in recent years. The number of such cases, although small compared with the number in which evidence of visual identification is known to be satisfactory, necessitates steps being taken by the courts, including this court, to reduce that number as far as is possible. In our Judgment the danger of miscarriages of justice occurring can be much reduced if trial judge’s sum up to juries in the way indicated in this judgment.

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 or 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.

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.

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.

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.

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. Were the courts to adjudge otherwise, affronts to justice would frequently occur. A few examples, taken over the whole spectrum of criminal activity, will illustrate what the effects upon the maintenance of law and order would be if any law were enacted that no person could be convicted on evidence of visual identification alone.

Here are the examples. A had been kidnapped and held to ransom over many days. His captor stayed with him all the time. At last he was released but he did not know the identity of his kidnapper nor where he had been kept. Months later the police arrested X for robbery and as a result of what they had been told by an informer they suspected him of the kidnapping. They had no other evidence. They arranged for A to attend an identity parade. He picked out X without hesitation. At X's trial, is the trial judge to rule at the end of the prosecution's case that X must be acquitted?

This is another example. Over a period of a week two police officers, B and C, kept observation in turn on a house which was suspected of being a distribution centre for drugs. A suspected supplier, Y, visited it from time to time. On the last day of the observation B saw Y enter the house. He at once signalled to other waiting police officers, who had a search warrant to enter. They did so; but by the time they got in, Y had escaped by a back window. Six months later C saw Y in the street and arrested him. Y at once alleged that C had mistaken him for someone else. At an identity parade he was picked out by B. Would it really be right and in the interests of justice for a judge to direct Y's acquittal at the end of the prosecution's case?

A rule such as the one under consideration would gravely impede the police in their work and would make the conviction of street offenders such as pickpockets, car thieves and the disorderly very difficult. But it would not only be the police who might be aggrieved by such a rule. Take the case of a factory worker, D, who during the course of his work went to the locker room to get something from his jacket which he had forgotten. As he went in he saw a workmate, Z, whom he had known for years and who worked nearby him in the same shop, standing by D's open locker with his hand inside. He hailed the thief by name. Z turned round and faced D; he dropped D's wallet on the floor and ran out of the locker room by another door. D reported what he had seen to his chargehand. When the chargehand went to find Z, he saw him walking towards his machine. Z alleged that D had been mistaken. A directed acquittal might well be greatly resented not only by D but by many others in the same shop.

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: for example, X sees the accused snatch a woman's handbag; he gets only a fleeting glance of the thief's face as he runs off but he does see him entering a nearby house. Later he picks out the accused on an identity parade. If there was no more evidence than this, the poor quality of the identification would require the judge to withdraw the case from the jury; but this would not be so if there was evidence that the house into which the accused was alleged by X to have run was his father's. Another example of supporting evidence not amounting to corroboration in a technical sense is to be found in Reg. v. Long (1973) 57 Cr.App.R. 871. The accused, who was charged with robbery, had been identified by three witnesses in different places on different occasions but each had only a momentary opportunity for observation. Immediately after the robbery the accused had left his home and could not be found by the police. When later he was seen by them he claimed to know who had done the robbery and offered to help to find the robbers. At his trial he put forward an alibi which the jury rejected. It was an odd coincidence that the witnesses should have identified a man who had behaved in this Way. In our judgment odd coincidences can, if unexplained, be supporting evidence.

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. A jury, for example, might think that support for identification evidence could be found in the fact that the accused had not given evidence before them. An accused's absence from the witness box cannot provide evidence of anything and the judge should tell the jury so. But he would be entitled to tell them that when assessing the quality of the identification evidence they could take into consideration the fact that it was uncontradicted by any evidence coming from the accused himself.

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.

In setting out these guidelines for trial judges, which involve only changes of practice, not law, we have tried to follow the recommendations set out in the Report which Lord Devlin's Committee made to the Secretary of State for the Home Department in April 1976. We have not followed that report in using the phrase "exceptional circumstances" to describe situations in which the risk of mistaken identification is reduced. In our judgment the use of such a phrase is likely to result in the build up of case law as to what circumstances can properly be described as exceptional and what cannot. Case law of this kind is likely to be a fetter on the administration of justice when so much depends upon the quality of the evidence in each case. Quality is what matters in the end. In many cases the exceptional circumstances to which the report refers will provide evidence of good quality, but they may not: the converse is also true. A failure to follow these guidelines is likely to result in a conviction being quashed and will do so if in the judgment of this court on all the evidence the verdict is either unsatisfactory or unsafe.

ADVOKATE

When the police interview witnesses they are required by their PEACE Interviews training to apply ADVOKATE re R v Turnbull. They must explicitly question the witness on these matters.

Where identification is an issue the Legal Advisor must press the IO in pre interview disclosure for detail of the circumstance in which the witness or witnesses purportedly identified the client.

A - Amount of time under observation: How long did the witness have the person/incident in view?
D - Distance: What was the distance between the witness and the person/incident?
V - Visibility: What was the visibility at the time? Factors include time of day, street lighting, etc.
O - Obstruction: Were there any obstructions to the view of the witness?
K - Known or seen before: Did the witness know, or had the witness ever seen, the person before? If so, where and when?
A - Any reason to remember: Did the witness have any special reason for remembering the person/incident? Was there something specific that made the person/incident memorable?
T - Time lapse: How long has elapsed since the witness saw the person/incident?
E - Error or material discrepancy: Are there any errors or material discrepancies between descriptions in the first and subsequent accounts of the witness

NB In the case of R v Michel Barry George (2002) the Court held: (Para 25) “It is the experience of this Court that when a witness to a crime has failed to make a positive identification on an identification parade the witness may nevertheless be called into the witness box to describe the offender and what occurred on the identification parade. A failure to make a positive identification is no bar to describing either the event or the offender. As the trial Judge commented, the lack of authority upon the point arises because it is axiomatic that such evidence is admissible”.

Disclosure

The suspect’s legal advisor at the police station should not just accept what they are told by the Disclosure Officer. The legal advisor has a duty to seek disclosure about the material justifying the client’s arrest and detention and what further inquires the police intend to make. This will assist the legal advisor to judge and balance the risks when it comes to advising the client.

Below is a suggested checklist which should aid the legal adivisor at the police station:

Identification Procedures (Code of Practice D3.12)

Is Identity an issue? Yes....... No.........

Are there any Identification Witnesses? Yes...... No...... How Many........

Use: ADVOKATE

Does any witness/s express an ability to identify the suspect? Yes....... No........

How Many?.................

First Description/s ...................................................................................................

...................................................................................................

Check Time and Date of First Description

Date/Time witness gave the Description A..................................................

Date/Time witness gave the Description B..................................................

Date/Time witness gave the Description C...................................................

Date/Time witness gave the Description D....................................................

Could you please confirm that:

(a)these are initial descriptions and given by the witnesses? yes........ No.......

(b)and that no earlier descriptions exist? Yes..... No........

e.g. given over the radio on in note form Yes...... No........

Will Not Say and any reason given.........................................................................

...........................................................................................................

Photographs and Video Evidence?

Is there any Photographic/Video Evidence: Yes........ No.........

SOCO: Yes...... No.......

CCTV: Yes..... No......

Surveillance: Yes...... No......

Other: Yes..... No......

Have you any inoformation regarding identification of the suspect which you have not told me abour?

Yes....... No........

Any comments..........................................................................................

.......................................................................................................

Codes of practice: Code D

Circumstances in which an identification procedure must be held

Codes of practice Code D3.12 Whenever:

(i) a witness has identified a suspect or purported to have identified them prior to any identification procedure set out in paragraphs 3.5 to 3.10 having been held; or

(ii) there is a witness available, who expresses an ability to identify the suspect, or where there is a reasonable chance of the witness being able to do so, and they have not been given an opportunity to identify the suspect in any of the procedures set out in paragraphs 3.5 to 3.10,and the suspect disputes being the person the witness claims to have seen, an identification procedure shall be held unless it is not practicable or it would serve no useful purpose in proving or disproving whether the suspect was involved in committing the offence. For example, when it is not disputed that the suspect is already well known to the witness who claims to have seen them commit the crime.

See: R v Forbes (2001) 2 WLR 1

Video identification

Codes of practice Code D3.5 A ‘video identification’ is when the witness is shown moving images of a known suspect, together with similar images of others who resemble the suspect. See paragraph 3.21 for circumstances in which still images may be used.

Cases when the suspect is known and available

Codes of practice Code D3.4 If the suspect’s identity is known to the police and they are available, the identification procedures set out in paragraphs 3.5 to 3.10 may be used. References in this section to a suspect being ’known’ mean there is sufficient information known to the police to justify the arrest of a particular person for suspected involvement in the offence. A suspect being ’available’ means they are immediately available or will be within a reasonably short time and willing to take an effective part in at least one of the following which it is practicable to arrange:

video identification;
identification parade; or
group identification.

In Lennon, R v [1999] EWCA Crim 1309 (10th May, 1999) the suspect was arrested for public order offences after his description was circulated by police officers who had witnessed the offence. The suspect was arrested by other officers and placed in a police van. The officers who had witnessed the suspect committing the offence went to the van not knowing that the suspect was in the van and identified him. The court held that the person was a ‘known’ suspect and the identification evidence should have been excluded.

Annex A - Video identification

(a) General
1. The arrangements for obtaining and ensuring the availability of a suitable set of images to be used in a video identification must be the responsibility of an identification officer, who has no direct involvement with the case.

2. The set of images must include the suspect and at least eight other people who, so far as possible, resemble the suspect in age, general appearance and position in life. Only one suspect shall appear in any set unless there are two suspects of roughly similar appearance, in which case they may be shown together with at least twelve other people.

2A If the suspect has an unusual physical feature, e.g., a facial scar, tattoo or distinctive hairstyle or hair colour which cannot be replicated on the images of the other people, steps may be taken to:

(a) replicate that feature on the images of the other people; or

(b) conceal the location of the feature on the images of the suspect and the other people.

For these purposes, the feature may be replicated or concealed electronically or by any other method which it is practicable to use to ensure that the images of the suspect and other people resemble each other. The identification officer has discretion to choose whether to replicate or conceal the feature and the method to be used. If an unusual physical feature has been described by the witness, the identification officer should, if practicable, have that feature replicated. If it has not been described, concealment may be more appropriate.

2B If the witness requests to view an image where an unusual physical feature has been replicated or concealed without the feature being replicated or concealed, the witness may be allowed to do so.

3. The images used to conduct a video identification shall, as far as possible, show the suspect and other people in the same positions or carrying out the same sequence of movements. They shall also show the suspect and other people under identical conditions unless the identification officer reasonably believes:

(a) because of the suspect's failure or refusal to co-operate or other reasons, it is not practicable for the conditions to be identical; and

(b) any difference in the conditions would not direct a witness’ attention to any individual image.

4. The reasons identical conditions are not practicable shall be recorded on forms provided for the purpose.

5. Provision must be made for each person shown to be identified by number.

6. If police officers are shown, any numerals or other identifying badges must be concealed. If a prison inmate is shown, either as a suspect or not, then either all, or none of, the people shown should be in prison clothing.

7. The suspect or their solicitor, friend, or appropriate adult must be given a reasonable opportunity to see the complete set of images before it is shown to any witness. If the suspect has a reasonable objection to the set of images or any of the participants, the suspect shall be asked to state the reasons for the objection. Steps shall, if practicable, be taken to remove the grounds for objection. If this is not practicable, the suspect and/or their representative shall be told why their objections cannot be met and the objection, the reason given for it and why it cannot be met shall be recorded on forms provided for the purpose.

8. Before the images are shown in accordance with paragraph 7, the suspect or their solicitor shall be provided with details of the first description of the suspect by any witnesses who are to attend the video identification. When a broadcast or publication is made, as in paragraph 3.28, the suspect or their solicitor must also be allowed to view any material released to the media by the police for the purpose of recognising or tracing the suspect, provided it is practicable and would not unreasonably delay the investigation.

9. The suspect’s solicitor, if practicable, shall be given reasonable notification of the time and place the video identification is to be conducted so a representative may attend on behalf of the suspect. If a solicitor has not been instructed, this information shall be given to the suspect. The suspect may not be present when the images are shown to the witness(es). In the absence of the suspect’s representative, the viewing itself shall be recorded on video. No unauthorised people may be present.

(b) Conducting the video identification
10. The identification officer is responsible for making the appropriate arrangements to make sure, before they see the set of images, witnesses are not able to communicate with each other about the case, see any of the images which are to be shown, see, or be reminded of, any photograph or description of the suspect or be given any other indication as to the suspect's identity, or overhear a witness who has already seen the material. There must be no discussion with the witness about the composition of the set of images and they must not be told whether a previous witness has made any identification.

11. Only one witness may see the set of images at a time. Immediately before the images are shown, the witness shall be told that the person they saw on a specified earlier occasion may, or may not, appear in the images they are shown and that if they cannot make a positive identification, they should say so. The witness shall be advised that at any point, they may ask to see a particular part of the set of images or to have a particular image frozen for them to study. Furthermore, it should be pointed out to the witness that there is no limit on how many times they can view the whole set of images or any part of them. However, they should be asked not to make any decision as to whether the person they saw is on the set of images until they have seen the whole set at least twice.

12. Once the witness has seen the whole set of images at least twice and has indicated that they do not want to view the images, or any part of them, again, the witness shall be asked to say whether the individual they saw in person on a specified earlier occasion has been shown and, if so, to identify them by number of the image. The witness will then be shown that image to confirm the identification, see paragraph 17.

13. Care must be taken not to direct the witness’ attention to any one individual image or give any indication of the suspect’s identity. Where a witness has previously made an identification by photographs, or a computerised or artist’s composite or similar likeness, the witness must not be reminded of such a photograph or composite likeness once a suspect is available for identification by other means in accordance with this Code. Nor must the witness be reminded of any description of the suspect. 14. After the procedure, each witness shall be asked whether they have seen any broadcast or published films or photographs, or any descriptions of suspects relating to the offence and their reply shall be recorded.

(c) Image security and destruction
15. Arrangements shall be made for all relevant material containing sets of images used for specific identification procedures to be kept securely and their movements accounted for. In particular, no-one involved in the investigation shall be permitted to view the material prior to it being shown to any witness.

16. As appropriate, paragraph 3.30 or 3.31 applies to the destruction or retention of relevant sets of images.

(d) Documentation
17. A record must be made of all those participating in, or seeing, the set of images whose names are known to the police.

18. A record of the conduct of the video identification must be made on forms provided for the purpose. This shall include anything said by the witness about any identifications or the conduct of the procedure and any reasons it was not practicable to comply with any of the provisions of this Code governing the conduct of video identifications.

Case law

Atkins & Anor v R (02 October 2009)

Atkins & Anor v R [2009] EWCA Crim 1876 (02 October 2009)The issue in these appeals related to the permissible manner in which an expert in facial photograph comparison (often called 'facial mapping') may express his conclusions. The expert gave evidence about the similarities between the face of the offender caught on indistinct CCTV footage and the face of DA. There was no suggestion by the Crown or the expert that he could positively identify Dean Atkins. There was no argument by the defence against the admissibility of the expert's evidence as to similarities between the face on the camera and that of Dean Atkins. What was contended is that it was impermissible for the expert to say that in his view those similarities lent something between support and strong support to the allegation that the man in the camera shot was Dean Atkins. The expert habitually used what has been described as a sliding scale of propositions running from "lends no support" to "lends powerful support". It was contended that such an expert should never use any of these expressions but should be confined to identifying the similarities or dissimilarities between the faces compared.

31. “We conclude that where a photographic comparison expert gives evidence, properly based upon study and experience, of similarities and/or dissimilarities between a questioned photograph and a known person (including a defendant) the expert is not disabled either by authority or principle from expressing his conclusion as to the significance of his findings, and that he may do so by use of conventional expressions, arranged in a hierarchy, such as those used by the witness in this case and set out in paragraph 8 above. We think it preferable that the expressions should not be allocated numbers, as they were in the boxes used in the written report in this case, lest that run any small risk of leading the jury to think that they represent an established numerical, that is to say measurable, scale. The expressions ought to remain simply what they are, namely forms of words used. They need to be in an ascending order if they are to mean anything at all, and if a relatively firm opinion is to be contrasted with one which is not so firm. They are, however, expressions of subjective opinion, and this must be made crystal clear to the jury charged with evaluating them.”

B, R. v (17 July 2008

B, R. v [2008] EWCA Crim 1524 (17 July 2008) ID evidence should not have been excluded under s78 PACE

Stock, R v (08 August 2008)

Stock, R v [2008] EWCA Crim 1862 (08 August 2008) Appeal robbery 1971: The power of identification evidence and the implacability of the appeal court.

Ley, R v (07 December 2006)

Ley, R v [2006] EWCA Crim 3063 (07 December 2006) Held: The point of law to which the argument was mainly directed was this: the judge having decided that the identification was of such poor quality that he would not have left the case to the jury in the absence of supporting evidence, must the jury be directed that they should not convict on the evidence of identification alone in the absence of supporting evidence? In the first place we are not satisfied the judge would have stopped the case in the absence of supporting evidence. But assuming that were so we do not think the judge was required to give such a direction. Identification cases always require a careful direction from the judge drawing attention to the dangers of honest but mistaken identification along the lines of Turnbull. But the jury has to consider its verdict in the light of the whole of the evidence, it being a matter for them what evidence they accept and what evidence they reject. When a defendant gives or calls evidence, and especially so when there is more than one defendant, the picture may look very different at the conclusion of the whole of the evidence from how it looked at the end of the prosecution case. We have found nothing unsafe about the appellant's conviction and these are our reasons for having dismissed his appeal.

R v Stanton The Times 28 April 2004

Regina v Stanton, The Times 28 April 2004. No matter how short the case it was the duty of a trial judge to properly guide a jury in accordance with R v Turnbull when identification issues arose. A judge should raise the issue with counsel before summing up.

Edwards v The Queen (25 April 2006)

The Privy Council in Edwards v. The Queen (Jamaica) [2006] UKPC 23 (25 April 2006) distinguished between 'first time' dock identification, which will ordinarily be unacceptable, and cases in which a witness who has previously identified the defendant as the offender or suspected offender repeats this identification by pointing to the defendant in court. Whilst clearly less objectionable, the view of the Judicial Committee was that this was nevertheless, "an undesirable practice" and that "other means should be adopted of establishing that the defendant in the dock is the man who was arrested for the offence charged".

George, R. v (29 July 2002)

George, R. v [2002] EWCA Crim 1923 (29 July 2002); [2003] Crim.L.R. 282, C.A

“34.…An identification which is qualified cannot be transformed into one which is unqualified by careful questioning. It remains qualified and the jury should be aware of this. Equally a defendant must not be convicted on the evidence of a qualified identification alone.”

Byrne, R v (21st January, 1999)

Byrne, R v [1999] EWCA Crim 120 (21st January, 1999) Identification evidence: contact between the witness and the appellant was something approaching nine hours and should not be characterised as one of identification. It is the sort of issue which commonly arises when there has been a fracas at a public house or restaurant and witnesses give conflicting accounts of the incident. The judge was not required to give a direction in accordance with the guidelines set out by this court in Turnbull.

R v Turnbull (13 October 1975)

Regina -v- Turnbull WLR [1976] 3 WLR 445 LORD WIDGERY C.J. read the following judgment of the court. On October 13, 1975, at Newcastle-upon-Tyne Crown Court the appellants Turnbull and Camelo were convicted of conspiracy to burgle. They were each sentenced to three years' imprisonment. They both appeal against conviction by leave of the single judge. On November 13, 1974, at the Central Criminal Court the appellant Whitby was convicted of robbery and sentenced to six years' imprisonment. He appeals against his conviction by leave of this court. On February 11, 1976, at Plymouth Crown Court the appellant Roberts was convicted of unlawful wounding and sentenced to three months' detention which he has served. He appeals against his conviction by leave of the single judge.......

Reid v R [1990] AC 363

In Reid v R [1990] AC 363, a Privy Council case, the court rejected the suggestion that police officers were better able to identify suspects more accurately than members of the public. “Although the judge stressed that the witness was a police officer, and suggested that his ability to identify people could well be greater than that of an ordinary member of the public, experience has undoubtedly shown that police identification can be just as unreliable and is not therefore to be excepted from the now well established need for the appropriate warnings.”

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