Hazardous Eyewitness Identification Evidence Essay UK Law

Essay on Hazardous Eyewitness Identification Evidence Amended

Introduction

With about 4.2 million CCTV cameras, the United Kingdom is the world leader in visual surveillance.[1] Where a suspect disputes identification, the prosecution will be put to proof that the defendant is, beyond all reasonable doubt, the person who committed the offence. CCTV footage features daily in the administration of justice.

Much faith is put in it as a convenient and persuasive form of evidence, easily accessed by the layperson. But research by psychologists reveals that the high level of confidence in CCTV evidence is based on questionable assumptions, with insufficient awareness of the dangers of identification from images.[2] Grounds for concern will persist, notwithstanding technological advances leading to improved quality footage. It is vital that courts engage with the psychology research and develop appropriate responses as:

“The widespread use of surveillance cameras which should (theoretically) combat the historical difficulties related to traditional methods of eyewitness testimony can be seen to have created new potential problems of mistaken identities.”[3]

In United Kingdom the police procedures as provided for by the Codes under PACE, both when the suspect is known, and when he is not. The guidance takes account of the changes brought about by the revised Code D of Practice.

In this article first section deals with current law position in as to admissibility of eyewitness identification evidence with the help of case laws and presidents. In the second section by critically analysis the author evaluate as to whether the current law is satisfactory or not and illustrate any possible reforms recommended with the main aim to evaluate up to what extent are defendants in criminal trials protected from the danger of mistaken identification.

1. Eyewitness Identification Evidence with Case Laws

Eyewitness identification evidence is both a commonplace and problematic feature of criminal trials. Although eyewitnesses are an important source of evidence, it is widely acknowledged that their attempts to identify others, even those with whom they are relatively familiar, are particularly prone to error. There are various means of identifying the accused, viz. visual identification; identification in court; identification out of court; video identification; the use of photographs; the use of photo fits and sketches; and other forms of identification.[4] Let us discuss the issue of hazardous eyewitness identification from the following case laws related to eyewitness evidence in U.K. courts –

1.1. Relevant Principles from Case Law

Where a witness indicates there is no reasonable possibility of picking out the culprit on a parade, then it is pointless holding one even if the defendant requests one.[5]

The guidelines in Turnbull are aimed at assessing the quality of the identification. The court said:

“In our judgement 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”.[6]

“When in the judgement 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”.[7]

The principle enunciated by Lord Widgery in R v Turnbull is as follows:

“When in the judgment of the trial judge, the quality of the identify 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 corroborated in the sense lawyers use the word; but it need not be so if its effect is to make the jury sure that there is no mistaken identity.”

If a witness indicates there is a reasonable possibility of picking out the culprit, and other strong identification evidence is available (fingerprints, DNA, found in possession of property etc) then it might be possible to uphold a subsequent conviction if Code D procedures are not used; however, this is risky as Walker and Rutherford and Palmer seem to indicate that a failure to hold a parade would be a breach and if so, despite the strong evidence, may risk upsetting the conviction.[8]

It was held that the failure to hold a parade, although a breach, did not affect the safety of a conviction where the case depended upon “deduction from uncontested evidence”, even though the defendant had requested a parade. Strength of other evidence emphasised with or without a parade.[9]

In R v Forbes  the following 2 principles were laid down :

• Where a witness indicates there is no reasonable possibility of picking out the culprit on a parade, then it is pointless holding one even if the defendant requests one.

• If a witness indicates there is a reasonable possibility of picking out the culprit, and other strong identification evidence is available (fingerprints, DNA, found in possession of property etc) then it might be possible to uphold a subsequent conviction if Code D procedures are not used; however, this is risky as Walker and Rutherford and Palmer seem to indicate that a failure to hold a parade would be a breach and if so, despite the strong evidence, may risk upsetting the conviction[10]

The evidence of a factually descriptive nature, here a tattoo, which in the context of other evidence in the case was highly probative, did not make it evidence of identification.[11]

Although arguments about the identification evidence do not affect the admissibility of the other evidence, such as fingerprints, DNA or handwriting, they may affect the overall view as to the fairness of a trial or the safety of a conviction under either Article 6 of the ECHR or our own domestic appellate procedures.[12]

1.2. Evidence Involving Recognition

There is confusion about the difference between recognition and identification and where one begins and the other ends. Essentially, recognition is a type of identification.[13] Thus, even in recognition cases, where mistakes in the recognition of close friends and even relatives are sometimes made, a Turnbull warning is necessary.[14]

In cases where there has been some form of recognition the risk does not lie in the witness picking out the wrong person at an identification parade, but in the fact that at the time, the person witnessed the offence he was mistaken in his purported recognition of the offender.[15]

When the identification/recognition of a suspect is made by a police officer as a result of previous dealings with that person, the identification is admissible[16]

Much will depend on the circumstances of the recognition: if it is followed by an immediate arrest, there is no break in the chain from observation to arrest, but if the identifying officer does not immediately arrest the suspect, formal identification procedures should be followed to avoid the risk of the officer’s recognition evidence being ruled inadmissible.[17]

2. Evaluation of Current law and Recommendations

In England, the Home Office published two important documents, one in 1976 and in 1978. The 1976 document was entitled Report to the Secretary of State for the Home Department of the Departmental Committee on Evidence of Identification in Criminal Case (Home Office, 1976). For obvious reasons, it became known under its abbreviated title as the “Devlin Report.” This report is nearly 200 pages long, divided into eight chapters and a number of appendices. The first chapter is an introduction to the problem of “honest but mistaken identification.” The second and third chapters are detailed discussions of two specific cases. The fourth chapter addresses the use of identification evidence at trial, and contains lengthy discussion and then rejection of a requirement for corroborating evidence of a different kind in identification cases, as well as discussion of how to handle in-court or “dock” identifications and the judge’s instructions in identification cases, Chapter 5 is most relevant here, as it addresses pretrial identification procedures including lineups and photospreads. The appendices include a 1969 Home Office Circular no. 9 which contains rules for “identification parades,” as well as various forms used in identification procedures.

The 1978 document was known as Home Office Circular 109 (Home Office, 1978). It contained two separate codes, one for the use of lineups or “identification parades,” and one for the use of photos. Each was divided into rules and a detailed narrative for the law enforcement called “Administrative Guidance.” Unfortunately, none of the recommendations in the Home Office Circulars or in the Devlin Report carried the force of law, although eventually Parliament passed the Police and Criminal Evidence Act 1984 setting forth specific statutory identification procedures that applied to all identification procedures conducted after April 1985.[18]

In England and Wales regulation of pre-trial identification procedures is provided by Code D of the Codes of Practice issued under section 66 of the Police and Criminal Evidence Act 1984. It deals with main methods used by the police to identify people in connection with the investigation of offences and the keeping of accurate and reliable criminal records.[19] The Code prescribes in some detail various procedures that may be used by the police to obtain identification evidence from an eyewitness, and it establishes a clear hierarchy among those procedures.

The revision of the Code in 2011, video identification procedures, in which images of the suspect and innocent fillers are presented sequentially, supplanted the traditional identification parade as the principal identification procedure. The video identification procedure differs significantly from the sequential lineup described in the NIJ Guide. Although the video identification procedure involves the sequential presentation of single images the witness is not required to make a decision in respect of one image before being permitted to view the next.[20]

In R v Turnbull where the following guidelines were enunciated :

• There is a special need for caution when the prosecution case depends on evidence of visual identification.
• The summing-up should contain a warning of the need for caution and an explanation as to why caution is needed.
• The summing-up should deal with the circumstances of the identification in the particular case.
• The judge should point out that a convincing witness may be mistaken.[21]

Indeed, the provisions of the Code require the witness to view the entire set of images at least twice before making any identification, and also that officers conducting the procedures inform witnesses that there is no limit on the number of times that they may see the sequence, or part of the sequence, of images. Only minor modification of the instructions given to witnesses would be needed for the video identification procedure prescribed to incorporate the essential features of a sequential lineup and this would appear to have no significant resource implications. If, as the research suggests, a sequential lineup is the most accurate identification procedure, some may argue that continued failure to make the changes amounts to a violation of a suspect’s right to the use of the most accurate identification procedures.[22]

Conclusion

The aim of the great majority of procedural reforms has been to ensure that the eyewitness identification evidence which is presented to fact-finders is reliable. However, the problem of ensuring that the tribunal of fact is not denied an opportunity to take such evidence into account is an issue which has received very little attention.

The idea that suspects might have a right to participate in identification procedures is one that does not appear to have been acknowledged in many jurisdictions. Satisfactory development of the law in this direction will require legislatures, the courts, and those responsible for administering identification procedures to have a better understanding of the normative purposes that ought to be served by the procedural law relating to eyewitness identification evidence.

References

1. Andrew Roberts, Eyewitness Identification Evidence: Procedural Developments and the Ends of Adjudicative Accuracy, International Commentary on Evidence, Volume 6, Issue 2 (2009) Article 3,13
2. European Convention on Human Rights – Council of Europe <http://www.echr.coe.int/NR/rdonlyres/D5CC24A7-DC13-4318-B457-5C9014916D7A/0/Convention_ENG.pdf> accessed on 31^st March 2013.
3. Gary L. Wells,  Eyewitness Identification Procedures: Recommendations for Lineups and Photospreads , < http://web.williams.edu/Psychology/Faculty/Kassin/files/ET.whitepaper.pdf > accessed on 16^th April 2013.
4. Identification of Suspects, <http://www.cps.gov.uk/legal/h_to_k/identification_of_suspects/> as accessed on 31^st March 2013.
5. Mail Online, UK has 1% of world’s population but 20% of its CCTV cameras  (2007) <http://www.dailymail.co.uk/news/article-444819/UK-1-worlds-population-20-CCTV-cameras.html> accessed on 30^th March 2013.
6. Police and Criminal Evidence Act 1984 (PACE) codes of practice, <https://www.gov.uk/police-and-criminal-evidence-act-1984-pace-codes-of-practice> accessed on 30^th March 2013.
7. Police and Criminal Evidence Act 1984 (Amended 2011), <https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/117600/pace-code-d-2011.pdf> accessed on 30^th March 2013.
8. Ruth Costigan, Identification from CCTV: the risk of injustice, Criminal Law Review (2007), 1
9. R v Allen [1995] Crim.LR 643.
10. R v Bowden [1993] Crim LR 379
11. R v Byron [1999]TLR
12. 9.      R v Caldwell and Dixon 1993 CLR 862
13. R v Forbes [2001] 1 All ER 686
14. R v Kelly [1998] TLR
15. R v Montgomery [1966] NI 120
16. R v Thomas [1994] Crim.L.R. 128, CA
17. R v Turnbull [1977]  QB 224
18. Z. Henderson et al., “Matching the Faces of Robbers Captured on Video” (2001) 15 Applied Cognitive Psychology 445 at p.463.
19. Solomon Salako,  Evidence of Identification, <http://www.insitelawmagazine.com/evidencech9.htm> accessed on 30^th March 2013

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