Problems with visual identification evidence

Courts face a difficult evidentiary dilemma in determining how much weight to give to identification evidence that is weak or based on a brief contact.

You’d expect that when it comes to the jury’s decision, the standard principles apply: if the jury isn’t sure that the defendant has been properly recognised as the offender, the correct result is ‘not guilty.’

To some extent, this is correct, but in identifying situations, additional controls known as the ‘Turnbull guidelines’ will be implemented to prevent undue reliance on this type of information.

From personal experience, we know that identification evidence is frequently incorrect.

When a direction is needed

When the prosecution’s case is built entirely or largely on identification evidence, the judge must warn the jury of the potential dangers. This caution will be delivered to the jury in the form of a stipulated direction outlining the dangers of this type of evidence.

What direction will a jury be given?

A jury (or magistrates) will be told the following:

(1) there is a need for caution to avoid the risk of injustice;

(2) a witness who is honest and convinced in his own mind may be wrong;

(3) a witness who is convincing may be wrong;

(4) more than one witness may be wrong;

(5) a witness who is able to recognise the defendant, even when the witness knows the defendant very well, may be wrong.

The jury should always be directed to carefully examine the surrounding circumstances of the evidence of identification, paying particular focus to:

(1) the time during which the witness had the person he says was D (defendant) under observation; in particular the time during which the witness could see the person’s face;

(2) the distance between the witness and the person observed;

(3) the state of the light;

(4) whether there was any interference with the observation (such as either a physical obstruction or other things going on at the same time);

(5) whether the witness had ever seen D before and if so how many times and in what circumstances (i.e. whether the witness had any reason to be able to recognise D);

(6) the length of time between the original observation of the person said to be D (usually at the time of the incident) and the identification by the witness of D the police (often at an identification procedure);

Any weaknesses in the identification evidence, such as those stemming from one or more of the conditions listed above, must be brought to the jury’s attention.

(1) the fact that an incident was unexpected/fast-moving/shocking or involved a (large) number of people so that the identifying witness was not observing a single person;

(2) anything said or done at the identification procedure including any breach of Code D.

(3) whether there is any significant difference between the description the witness gave to the police and the appearance of D.

Evidence that is capable of supporting and/or undermining the identification, as well as evidence that is not capable of supporting and/or undermining the identification, must be recognised.

The jury may also take evidence of description as support for evidence of identification presented by an/other witness/es if they are certain that it comes from an honest and independent witness.

When more than one witness provides identification evidence, the jury should be instructed to assess the quality of each witness’ evidence separately, taking into account the possibility that more than one person is mistaken. However, as long as the jury is aware of the risk, they are allowed to consider one witness’ evidence of identification as some support for evidence of identification presented by another witness/es if they are confident that witness is honest and independent.

Consequences of missing or bad directions

Failure to offer a Turnbull directive when one is required, or delivering one that is insufficient, might render a subsequent conviction unsafe. The exact danger with identification evidence was highlighted in Bentley (1994) 99 Cr App R 342 where the Lord Chief Justice pointed out that one can feel not merely fairly confident but absolutely sure of seeing a friend or relative, only to discover that it happened to be a convincing lookalike.

Case studies

Other situations which seem analogous to the example encounter mentioned above may not be caught by the Turnbull provisions, such as the identity of a particular individual within a number of persons who are well-known collectively: Oakwell