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identification [2017/04/30 23:23]
frescom
identification [2017/04/30 23:44] (current)
frescom
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 The basic rules for the evidential requirements for recording identification of a suspect in a witness statement is summarised in the acronym ADVOKATE from Turnbull 1977 The basic rules for the evidential requirements for recording identification of a suspect in a witness statement is summarised in the acronym ADVOKATE from Turnbull 1977
    
-**A**mount of time +**A**mount of time\\ 
-**D**istance +**D**istance\\ 
-**V**isibility +**V**isibility\\ 
-**O**bstructions +**O**bstructions\\ 
-**K**nown or seen before +**K**nown or seen before\\ 
-**A**ny reason to remember +**A**ny reason to remember\\ 
-**T**imelapse between first and subsequent description +**T**imelapse between first and subsequent description\\ 
-**Errors between 1st description and actual appearance+**Errors between 1st description and actual appearance\\
  
  
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 The guidance also considers 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, which is effective for identification procedures taking place after midnight on 31 December 2005. The revised Code D can be found on the Home office website. The guidance also considers 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, which is effective for identification procedures taking place after midnight on 31 December 2005. The revised Code D can be found on the Home office website.
  
-Top of page 
  
-2. Visual Identification - Relevant Cases +-- 2. Visual Identification - Relevant Cases -- 
-2.1 Is the Witness Identifying a Person?+ 
 +-- 2.1 Is the Witness Identifying a Person? ​--
 In Dance v DPP (Div. Court CO/2103/98 and TLR 7/8/98) the Divisional Court analysed one set of circumstances,​ in which the witness described the clothing and approximate ages of two young men which led to the arrest of two young men. In Dance v DPP (Div. Court CO/2103/98 and TLR 7/8/98) the Divisional Court analysed one set of circumstances,​ in which the witness described the clothing and approximate ages of two young men which led to the arrest of two young men.
  
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 See also R v Nicholson (2000) 1 Cr App. R 182. See also R v Nicholson (2000) 1 Cr App. R 182.
  
-2.2 Lies/​Frame-up+-- 2.2 Lies/​Frame-up ​-- 
 Where the defence is likely to be that the witness is lying, for whatever reason, the quality of the identification evidence is not an issue. The leading case is R v Courtnell (1990) Crim.LR 11 in which the prosecution case depended wholly on evidence of a manager of a public house. The defence was one of alibi, and it was held at the outset by the defendant that the landlord was "​stitching me up". As the Court of Appeal stated; "The sole issue was the veracity of S; the defence did not allege he was mistaken. A Turnbull direction (1977 Q.B 224), in those circumstances would only have confused the Jury". Courtnell was followed in R v Withers (91/3171/Z3 - 25/1/93) reported at para T-15 of the Archbold Criminal Index. Where the defence is likely to be that the witness is lying, for whatever reason, the quality of the identification evidence is not an issue. The leading case is R v Courtnell (1990) Crim.LR 11 in which the prosecution case depended wholly on evidence of a manager of a public house. The defence was one of alibi, and it was held at the outset by the defendant that the landlord was "​stitching me up". As the Court of Appeal stated; "The sole issue was the veracity of S; the defence did not allege he was mistaken. A Turnbull direction (1977 Q.B 224), in those circumstances would only have confused the Jury". Courtnell was followed in R v Withers (91/3171/Z3 - 25/1/93) reported at para T-15 of the Archbold Criminal Index.
  
 A frame-up was again alleged in R v Cape, Jackson and Gardener 1996, 1 Cr.App.R 191. In a case similar to Courtnell, the Judge gave no direction to the Jury as to how to approach the question of identification in the case of two of the defendants, who alleged that the witness was '​framing them'. See also Shand v R (1996) Crim. LR 422 and R v Beckles and Montague (1999) Crim.LR 148. A frame-up was again alleged in R v Cape, Jackson and Gardener 1996, 1 Cr.App.R 191. In a case similar to Courtnell, the Judge gave no direction to the Jury as to how to approach the question of identification in the case of two of the defendants, who alleged that the witness was '​framing them'. See also Shand v R (1996) Crim. LR 422 and R v Beckles and Montague (1999) Crim.LR 148.
  
-2.3 Presence at the Scene Not Disputed+-- 2.3 Presence at the Scene Not Disputed ​--
 This section addresses the position regarding identification when a defendant admits presence but denies involvement at the scene of an offence? This issue can arise during the course of the defence case as well as being revealed on the prosecution papers. The most helpful authorities are set out below. This section addresses the position regarding identification when a defendant admits presence but denies involvement at the scene of an offence? This issue can arise during the course of the defence case as well as being revealed on the prosecution papers. The most helpful authorities are set out below.
  
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 R v McMath 1997 - conviction quashed after failure to hold a parade despite defendant'​s admission to being present at an affray. R v McMath 1997 - conviction quashed after failure to hold a parade despite defendant'​s admission to being present at an affray.
  
-2.4 Eyewitness and Other Compelling Evidence+-- 2.4 Eyewitness and Other Compelling Evidence ​--
 In Rutherford and Palmer 98 Cr.App.R. 191 (a case based on the old Code and the defendant'​s right to request a parade) no parade was held despite the fact there were witnesses who said they had a reasonable prospect of making identification. This was held to be a breach despite the otherwise strong evidence. As the case against the defendant was strong the appeal was dismissed. In Rutherford and Palmer 98 Cr.App.R. 191 (a case based on the old Code and the defendant'​s right to request a parade) no parade was held despite the fact there were witnesses who said they had a reasonable prospect of making identification. This was held to be a breach despite the otherwise strong evidence. As the case against the defendant was strong the appeal was dismissed.
  
-2.5 Relevant Principles from Case Law+-- 2.5 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. (Montgomery and R v Forbes). 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. (Montgomery and R v Forbes).
 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. 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.
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 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. 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.
  
-2.6 What Constitutes Relevant Information about Identification?​+-- 2.6 What Constitutes Relevant Information about Identification? ​-- 
 Police should forward copies of all first descriptions given by potential witnesses and recorded in accordance with Code D. This may also include photos of the suspect. Almost invariably, the evidence available to the prosecutor will be the statements of the witnesses. However, care should be taken to consider other source material, such as crime reports that may reveal the first descriptions,​ police pocketbook entries, tapes of or drafts of preliminary interviews with witnesses, draft statements and interviews with persons who are now witnesses but who may have been interviewed initially as suspects and crime reports. Police should forward copies of all first descriptions given by potential witnesses and recorded in accordance with Code D. This may also include photos of the suspect. Almost invariably, the evidence available to the prosecutor will be the statements of the witnesses. However, care should be taken to consider other source material, such as crime reports that may reveal the first descriptions,​ police pocketbook entries, tapes of or drafts of preliminary interviews with witnesses, draft statements and interviews with persons who are now witnesses but who may have been interviewed initially as suspects and crime reports.
  
-2.7 Evidence Involving Recognition+-- 2.7 Evidence Involving Recognition ​-- 
 There is confusion about the difference between recognition and identification and where one begins and the other ends. See Archbold 14-19. There is confusion about the difference between recognition and identification and where one begins and the other ends. See Archbold 14-19.
  
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 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 - R v Caldwell and Dixon 1993 CLR 862. 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. 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 - R v Caldwell and Dixon 1993 CLR 862. 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.
  
-2.8 Recognition by Proxy+-- 2.8 Recognition by Proxy -- 
 There is also the case where the recognition is "by proxy",​ that is, recognition of a suspect by reference to his connection to others present at the scene and at the place of arrest. Where such evidence is the only evidence of identification,​ the Turnbull warning must be given: R v Bath 154 JPR 849. Where identification by proxy is not itself the evidence relied on, but is rather evidence supporting the direct identification,​ the Court of Appeal has held that "the ripples of Turnbull"​ did not extend so far as to require the Turnbull warning: R v Green [unreported] CA 10.4.95. There is also the case where the recognition is "by proxy",​ that is, recognition of a suspect by reference to his connection to others present at the scene and at the place of arrest. Where such evidence is the only evidence of identification,​ the Turnbull warning must be given: R v Bath 154 JPR 849. Where identification by proxy is not itself the evidence relied on, but is rather evidence supporting the direct identification,​ the Court of Appeal has held that "the ripples of Turnbull"​ did not extend so far as to require the Turnbull warning: R v Green [unreported] CA 10.4.95.
  
-2.9 Quality of the Evidence+-- 2.9 Quality of the Evidence ​-- 
 R v Turnbull 1976, 63 Cr App R 132 R v Turnbull 1976, 63 Cr App R 132
  
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 The quality of the identification sometimes depends upon previous sightings. In R v Slater (1995) CLR 944 it was said that where this applies the Jury must examine each of the relevant previous sightings with care and that they should be so directed in accordance with Turnbull. The quality of the identification sometimes depends upon previous sightings. In R v Slater (1995) CLR 944 it was said that where this applies the Jury must examine each of the relevant previous sightings with care and that they should be so directed in accordance with Turnbull.
  
-2.10 False Alibi+-- 2.10 False Alibi -- 
 The Jury should be told that proving the defendant a liar about where he was at the material time does not per se prove he was committing the offence. However, if the Jury is satisfied that the sole reason for the false alibi was to deceive them, then that false alibi can provide support for identification. The Jury should be told that proving the defendant a liar about where he was at the material time does not per se prove he was committing the offence. However, if the Jury is satisfied that the sole reason for the false alibi was to deceive them, then that false alibi can provide support for identification.
  
 In R v Long (1973)57 Cr.App.R 871 provides an example of this principle. In R v Long (1973)57 Cr.App.R 871 provides an example of this principle.
  
-2.11 Third Party Identification+-- 2.11 Third Party Identification ​-- 
 In R v Green (10/4/95 Court of Appeal 94/0009/Z3) it was held that the identification of the defendant was supported by an identification of a man, who, it was admitted, had been his companion. Had this "​proxy"​ identification been the only evidence, a Turnbull warning would have been necessary. "The ripples from Turnbull did not extend so far as to require the warning where the proxy identification was not itself the identification evidence relied on, but rather evidence supporting the direct identification ". However, see R v Bath 1990 (Crim. LR 716) - silence under Criminal Justice and Public Order Act 1994 both in interview and failure to give evidence under Section 35. In R v Green (10/4/95 Court of Appeal 94/0009/Z3) it was held that the identification of the defendant was supported by an identification of a man, who, it was admitted, had been his companion. Had this "​proxy"​ identification been the only evidence, a Turnbull warning would have been necessary. "The ripples from Turnbull did not extend so far as to require the warning where the proxy identification was not itself the identification evidence relied on, but rather evidence supporting the direct identification ". However, see R v Bath 1990 (Crim. LR 716) - silence under Criminal Justice and Public Order Act 1994 both in interview and failure to give evidence under Section 35.
  
-Useful ​Links+-- Useful ​Cases --  
 R v Turnbull 1976, 63 Cr App R 132 R v Turnbull 1976, 63 Cr App R 132
  
identification.txt · Last modified: 2017/04/30 23:44 by frescom