IDENTIFICATION EVIDENCE

Connecting Defendant to the Offence

Several ways to link Defendant to the offence, includes identification of Defendant by eye-witness
of crime.
Eye-Witness Identification
2 types:
Identification of Defendant in court - dock identification
Identification of Defendant out-of-court (before trial) Identification procedure
Dock Identification
Should not generally be allowed in the absence of prior Identification flout basic principles
of Identification evidence.
Dock Identification may be permissible if:
Defendant refuses to attend an Identification procedure, or
Renders an Identification procedure impracticable (eg. by changing his appearance)
Summary trial Road traffic offences (as failure to call evidence that Defendant was driver
acquittal)
but if Identification issue (Defendant argues mistaken Identification) should be
Identification procedure.
Out-of-court Identification
Referral to out-of-court Identification way to avoid prejudice of Dock Identification
Admissibility of Identification Evidence
Previous out-of-court Identification admissible in all forms: s120(4)-(5) CJA 2003
(4) A previous statement by the witness is admissible as evidence of any matter stated of which
oral evidence by him would be admissible, if
(a) any of the following three conditions is satisfied, and
(b) while giving evidence the witness indicates that to the best of his belief he made
the statement, and that to the best of his belief it states the truth.
(5) The first condition is that the statement identifies or describes a person, object or place.
Caution in Mistaken Identification Cases
Whenever the case against Defendant is wholly/substantially reliant on the correctness of
identification which Defendant alleges is mistaken.
Is a Turnbull Warning Required?
Reason for Turnbull: An Identification Witness may be mistaken but convincing
Turnbull warning required where issue of mistaken Identification
Not required when:
No possibility of mistake Defendant only person who could have committed the offence
Defendant alleges Witness is lying issue is only Witness's veracity

 but if evidence to support possibility that Witness was mistaken (not lying) direction
should be given
May be 2 Questions:
Is the Witness honest?

If yes could Witness be mistaken? (If yes Turnbull necessary)

Evidence does not identify a person ie. general description/description of clothing/car

Turnbull Warning
In all cases which rely wholly/partly on Identification evidence & Defendant alleges mistaken
Identification Turnbull Direction must be given
Content
Consists of:
1. General warning about Identification evidence -

2.
3.
4.
5.

case depends wholly/partly on Identification evidence and honest Witness can make
a mistaken identification.
Close examination of circumstances of the Identification
Any discrepancies between Witness's description and Defendant's appearance
If recognition evidence - generally more reliable but can be mistaken
Supporting evidence what can support?

1. General Warning
Judge should warn the Jury:
of the special need for caution before convicting Defendant in reliance on identification(s)
and instruct as to reason why the warning is needed,
make reference to possibility that a mistaken witness can be a convincing one, and
that a number of witnesses can all be mistaken.
2. Examination of Circumstances of the Identification
Judge should direct the Jury to examine closely the circumstances in which identification came to
be made:
How long did the Witness have Defendant under observation? At what distance? In what
light? Was the observation impeded in any way?
Had the Witness seen Defendant before? How often? If only occasionally, did he have any
reason for remembering Defendant? How long between originally seeing Defendant and
identifying him?
Judge should remind the jury of any specific weaknesses which had appeared in the identification
evidence.
3. Discrepancies between Description and Defendant's Appearance
Was there any material discrepancy between the description of the perpetrator originally given to
the police by Witnesses and his actual appearance?
If Prosecution have any reason to believe that there is such a discrepancy, should provide
Defendant/his legal advisers with particulars of the description which the police were first
given.
In any case where Defendant asks for the particulars, Prosecution should give them.

4. Recognition More Reliable

Recognition is more reliable than identification
But the Judge should direct the jury that, even in recognising friends and family, sometimes
mistakes are made.
5. Supporting Evidence
Judge should identify to the jury the evidence which he adjudge is capable of supporting the
evidence of identification.
Form
No specific set of words
Judge has a broad discretion to express himself in his own way when he directs a jury on
identification. All that is required...is that he should comply with the sense and spirit of the guidance
in Turnbull.
No Case to Answer
No Identification evidence submission succeeds
Identification evidence weak (circumstances) and no supporting evidence:
1. Assume Identification evidence to be honest
2. Consider whether the evidence has a base so slender that it is unreliable and therefore not
sufficient to found a conviction
Yes Acquit, No continue with case.
Identification evidence weak and potentially supporting evidence Case goes to jury
Judge should tell Jury that the Identification evidence is of poor quality and, without the
supporting evidence, the case would have been withdrawn
Judge should identify evidence capable of supporting
QOL (for judge) whether evidence capable of supporting the Identification evidence
QOF (for jury) whether evidence does in fact support the Identification evidence

Potentially Supporting Evidence

False Alibi
If Jury reject Defendant's alibi as false may support Identification evidence
Jury should consider:
Is the alibi false?
Is there any reason, consistent with Defendant's innocence, he may have put forward a
false alibi?
False alibis can be put forward for many reasons
If not may support the Identification, not must.
only when the jury is satisfied that the sole reason for the fabrication was to deceive
them, and there is no other explanation for it being put forward, can the fabrication
provide any support for the identification.

Jury should be reminded that proving the accused told lies about where he was does not, by itself,
prove he was where identification evidence places him.
Bad Character Propensity
Defendant's Bad Character (adduced under s101 CJA as relevant to propensity matter-in-issue
between Defendant and Prosecution) might be capable of supporting weak Identification evidence.
Other Identification Witnesses
If no other sources of supporting evidence Judge should consider whether other Identification
Witnesses can support each other.
If all Witnesses hampered in their observation Judge may direct acquittal
If Judge suggests to Jury other Identification Witnesses may support must also tell them that
several honest Witnesses can all be mistaken.
Identification Witnesses of different offences may be able to support each other where alleged
Defendant committed all the offences.
Exclusion of Identification Evidence
s78 PACE
Application to exclude under s78 should succeed where the Identification evidence is unreliable.
PACE, Code Defendant lays down code of practice to ensure that Identification evidence
is gathered in controlled circumstances in order to maximise its quality
Non-compliance with Code Defendant may be an important factor in deciding whether to
exclude the evidence under s78, but it exclusion is not automatic.
So long as the breach of Annex B, para 20 is relatively minor and innocent (no coaching),
Judge may decide not to exclude the evidence under s78
Examples:
2 Witnesses put into same room after taking part in a parade, and only one had identified
the suspect, and later the other also identified the suspect, neither Witnesses' evidence was
excluded.
Witness attended Identification parade 6 weeks after stabbing, did not pick anyone out, but
told officer afterwards that no.5 had a scary look which reminded him of the stabbing. Trial
Judge allowed the Identification evidence after a voire dire. Placed before Jury as a
qualified Identification not a positive one.
s78 may still lead to the exclusion of Identification evidence even where Code Defendant has been
complied with.