IDENTIFICATION EVIDENCE The Turnbull Guidelines They apply where

IDENTIFICATION EVIDENCE

The Turnbull Guidelines They apply where the prosecution case is wholly or substantially based on disputed ID evidence and require the judge to: • warn jury of special need for caution before convicting on I. D. evidence and explain why (witness may be mistaken and convincing) and • direct jury to consider circumstances of ID, and point out weaknesses in the evidence (e. g. distance, lighting, “fleeting glance”, impeded observation, had witness seen accused before, length of time between observation and ID to police, material discrepancy between witness’ description of accused and accused’s appearance)

The Turnbull Guidelines (continued) • In a recognition case (i. e. where the witness knows the person he identifies) the judge should indicate that mistakes can be made in recognising friends etc. • If the I. D. evidence is of good quality it can be left to the jury once they have been directed as above • If the I. D. evidence is of poor quality, the judge should withdraw the case from the jury and direct an acquittal unless there is supporting evidence. • If the I. D. evidence is of poor quality but there is supporting evidence the judge, having directed the jury as above and identified the supporting evidence, can leave the evidence to the jury

Turnbull--Supporting Evidence • This is evidence which makes the jury sure that the I. D. witness was not mistaken. • The jury decide whether they believe the supporting evidence and whether it supports the correctness of the I. D. evidence • Examples of supporting evidence are provided by evidence of another I. D. witness, false alibis and forensic evidence (but a careful direction is required when the judge directs the jury to the effect that they may be entitled to regard a false alibi as supporting evidence– see lies told by the accused, below)

W witnessed a robbery in which the robber knocked the victim out from behind. The robbery took place on a dark night on an unlit street, W was standing at the other end of the street when she witnessed it and only got a fleeting glimpse of the robber’s face, which was partially masked. W attended a video identification and made a positive I. D. of D Some of the items stolen in the robbery were found in D’s house. There is no other evidence against D. Which one of [a] or [b] is true? [a] The ID evidence is of poor quality so the judge must direct an acquittal [b] The judge should give the jury a Turnbull direction [b] is true

A Turnbull direction is also required • Where there is strong evidence that accused was with another person at the relevant time, the identities of the accused and the other person are both in issue and the ID evidence relates not to the accused but to the other • When the ID witness viewed the events via a photograph or video etc • In voice recognition cases (though the direction must be appropriately modified)

A Turnbull direction is not required? • ID of a motor car (though appropriate directions should be given) • When the issue is whether ID evidence was fabricated and no question of mistaken ID arises • When accused admits his presence at the scene of the crime but denies participation and no question of mistaken identification arises • Where the jury make an ID from a photograph or video (though they should be warned about the risk of mistaken ID and the need to take care and, where appropriate, directed to consider specific matters such as any change in the accused’s appearance)

Failure to give a Turnbull direction This is likely to result in a conviction being quashed but may not do so if • the evidence is of very good quality or • there is no realistic possibility that the ID witness may have made a mistake

Kim is charged with criminal damage. The jury watch a CCTV film of the commission of the offence, the prosecution alleging that the woman seen committing the offence is Kim. Which one of [a] or [b] is true? [a] The judge should not give a Turnbull direction in these circumstances but should warn the jury of the risk of mistaken identification and the need to take care [b] The judge should give a Turnbull direction in these circumstances [a] is true

Lance is charged with burglary. Two witnesses, Colin and Ralph, identify Lance as the burglar. The defence do not assert that Colin and Ralph are mistaken but, rather, Lance asserts that Colin and Ralph are lying; that they have fabricated their I. D. evidence against him because he once got the better of them in a business deal. The judge does not give the jury a Turnbull direction and Lance is convicted. Is the following proposition true or false? The failure to give a Turnbull direction in these circumstances will clearly render Lance’s conviction unsafe. False

Dock ID’s • This is where a witness who has not identified the accused out of court via an identification procedure (e. g. a video identification) is asked to make an identification for the first time in court • Dock ID’s are not normally permitted in the Crown Court (the court exercising its exclusionary discretion (PACE s. 78) so as to prevent them) • They are sometimes permitted, in appropriate circumstances, in magistrates’ courts • Where a witness makes an unsolicited Dock ID the judge should direct the jury to ignore it and explain the inherent risks to them

Dock ID’s and Human Rights • It seems that a dock ID will not automatically make a trial unfair for Article 6 purposes but may do so in the specific circumstances of a specific case

Jim is charged with burglary. The trial judge permits Charles, who has not attended a Code D identification procedure, identifies Jim in the dock as the burglar. Is the following proposition true or false? The judge could have prevented the Dock ID by exercising his exclusionary discretion, but it would have been exceptional for a judge to prevent a Dock ID from taking place False

Breaches of Requirements of Code D • Breaches of requirements of Code D do not automatically render ID evidence inadmissible but may result in exclusion of ID evidence in the exercise of the court’s exclusionary discretion under PACE s. 78 • If ID evidence is admitted in the context of such a breach, judge should draw breach to jury’s attention as it may reduce the weight of the evidence (Forbes direction)

Reg, who was robbed in the street, attends a video identification and identifies Adam as the robber. Adam is white and all of the other members of the parade were black. Which is/are true? (i) Because there has been a breach of Code D, the ID evidence is inadmissible as a matter of law. (ii) The judge may exclude the ID evidence in the exercise of his exclusionary discretion (iii) Where a judge admits ID evidence in the context of a breach of Code D, an appropriate direction to the jury will be required to explain its significance. (ii) and (iii) are true.

Witnesses who fail to identify or make qualified ID’s • Such witnesses may still be called to describe the offender and (subject to the court’s exclusionary discretion) give evidence of what occurred at the ID procedure (e. g. at the video identification or parade) • The weight of a qualified ID will be less than that of a positive ID, the jury will require a warning and the accused should not be convicted solely upon it, though it may act as supporting evidence (indeed two witnesses giving qualified ID’s may support each other) • The witness’ reasons for failing to make an ID or concerning why it was qualified may support the credibility of his other evidence

Sue and Rachel witnessed a murder. They attended a video identification. Sue made a positive I. D. of Fred. Rachel also picked out Fred, but was not 100% sure that he was the murderer. There is no other evidence against Fred. Which is/are true? (i) If Sue’s ID evidence is of good quality, the jury would be entitled to convict in reliance upon it even if there was no other evidence against Fred. (ii) The jury must be directed to ignore Rachel’s evidence because she was not 100% sure (iii) Evidence of Sue’s video identification is inadmissible because it is hearsay evidence. (i) is true

CORROBORATION AND UNRELIABLE WITNESSES

Corroboration Required by Law • Corroborative evidence is admissible, relevant and credible evidence which is independent of the witness whose evidence requires corroboration and tends to connect the accused with the commission of the offence • In general, English law does not require corroboration, thus, at common law the accused may be convicted on the evidence of one witness in the absence of corroboration. • In relation to a few offences (e. g. speeding) statute requires corroboration of a witness’s evidence in order to obtain a conviction

Ghulam is charged with speeding. The evidence against him is the opinion evidence of P. C. Jones who saw Ghulam driving very quickly in a 30 MPH zone. Is the following proposition true or false? If the only evidence against Ghulam is PC Jones’ opinion evidence then Ghulam is not liable to be convicted True

Corroboration Warnings • The common law formerly required a corroboration warning in relation to the evidence of children, accomplices and sexual offence complainants • This was a warning of the danger of convicting on uncorroborated evidence, identifying for the jury any evidence which was, as a matter of law, capable of providing corroboration. • The common law corroboration warning requirements have now been abolished by statute (for the modern approach to unreliable witnesses see R v Makanjuola below).

Corroboration Warnings (continued) • In practice (in the days when corroboration warnings were still required) appropriate warnings (though not full corroboration warnings) were also given: where the mental condition and criminal connection of a witness so demanded; where a witness had a purpose of his own to serve; and where a defendant ran a “cut throat defence” • It appears that following the statutory abolition of the corroboration warning requirements there is no obligation to give warnings in these situations either and that the R v Makanjuola approach (see below) applies (though see, also, the “cut throat defence”, below).

Unreliable Witnesses (R v Makanjuola) • A judge may decide that it is necessary to give an appropriate warning where there is an evidential basis (not merely a suggestion by counsel) for suggesting that the evidence of a witness is unreliable (it seems that this applies both to prosecution witnesses and to defence witnesses whose evidence incriminates a co-accused) • Whether the judge gives such a warning and what form it takes (e. g. whether it refers to the wisdom of looking for supporting evidence) is a matter for the judge’s discretion (though it seems that there may be extreme cases in which the judge should give the jury an appropriate warning) • the warning with counsel before closing speeches

Unreliable Witnesses (R v Makanjuola) (continued) • Supporting evidence must be independent of the unreliable witness • The judge should discuss the need for and nature of the Makanjuola warning with counsel before closing speeches

Carla, aged 35, asserts that she was sexually assaulted by Tom denies that he sexually assaulted Carla. During cross-examination, Carla admits that she made a false sexual assault allegation against a school teacher when she was 16. Which of (i), (ii) or (iii) is/are true? (i) The judge must give the jury a full corroboration warning. (ii) There is an evidential basis for regarding Carla as unreliable so the judge may find it appropriate to give the jury a “Makanjuola warning”. (iii) If there is no supporting evidence the judge must direct the jury to acquit Tom. (ii) is true.

Where accused is implicated by his coaccused’s defence evidence (the “cut throat defence”) • Whilst, strictly, it may be that the Makanjuola approach is applicable in the context of a “cut throat defence”, there is still authority for the proposition that trial judges should, as a matter of course, direct the jury to exercise caution when the evidence of one coaccused implicates another co-accused, and the safest practice for trial judges appears to be to give an appropriate warning as a matter of course in such circumstances

Cell Confessions and Delay • An appropriate form of warning may well be required in the context of “cell confessions”, though, it appears, such a warning will not be required in every case in which evidence of a cell confession is adduced • An appropriate form of warning may be well required where there has been substantial delay between the alleged commission of an offence and the bringing of a complaint, though, it appears, such a warning will not be required in every case in which there has been l delay in bringing a complaint

Tim and Jim are charged with murder. In his defence Tim testifies that the murder was committed by Jim alone. Sid, who was on remand with Tim, testifies that Tim confessed to the murder. Which of (i), (ii) or (iii) is/are true? (i) The judge may well find it necessary to warn the jury to treat Tim’s evidence against Jim with caution (ii) The judge may well find it necessary to warn the jury to exercise caution before relying on Tim’s “cell confession”. (iii) If the judge believes that Tim and Sid may be lying, he must give the jury a Turnbull direction. (i) and (ii) are true

THE ACCUSED’S LIES (LUCAS DIRECTION)

Nature of the Lucas Direction • A Lucas Direction concerns the evidential significance of the accused’s lies in or out of court • The direction must make clear to the jury that they may only treat the accused’s lie as evidence of his guilt if he either admitted that he lied or they are sure that he lied and they are sure that he did not tell the lie for an “innocent” reason (i. e if he lied for some reason other than his guilt then this is an innocent reason) • Where the accused has allegedly told numerous lies, the judge, when giving the jury a Lucas direction, whilst identifying the important lies, will not necessarily be required to identify every lie, as this may disadvantage the accused

When is a Lucas direction required? A Lucas Direction (which concerns the evidential significance of the accused’s lies in or out of court) should normally be given by the judge to the jury when: • the accused raises an alibi (the judge normally gives the JSB specimen direction on alibi’s which emphasises that the prosecution must disprove the accused’s alibi, that the fact that they conclude that the alibi is false does not in itself entitle them to convict and that a false alibi may be invented to bolster a genuine defence); or

When is a Lucas direction required (continued)? • the judge directs jury that they may rely upon an (admitted or alleged) lie as supporting evidence; or • the prosecution assert that the accused lied and seek to rely on this as evidence of his guilt; or • there is a danger that the jury may decide that the accused has lied and may rely upon the lie as evidence of the accused’s guilt

Horace is charged with burglary. His defence is that when the burglary was committed he was at home with his wife. An I. D. witness identified Horace as the burglar. Which of (i), (ii) or (iii) is/are true? (i) The judge should give the jury a Lucas direction. (ii) The effect of the Lucas direction is that the jury must not find Horace guilty unless he admits that his alibi is false (iii) The effect of the Lucas direction is that the jury must not find Horace guilty unless they are sure that there is a reason other than his being guilty of the burglary why he may have given a false alibi (i) is true

D is charged with V’s murder. When interviewed by the police, D admits being with V when V was stabbed by X but claims that he neither stabbed V nor held the murder weapon. At his trial, fingerprint evidence suggests that D held the knife. D then admits that he held it but claims that he did so after V was stabbed by X and that he lied to the police because he thought that if he admitted holding the knife he would be charged with murder. Which of (i) or (ii) is/are true? The judge should not give the jury a Lucas direction because: (i) D admitted that he lied; (ii) D has not raised an alibi. They are both false

When is a Lucas direction not required? • When the lie relates to a central issue of the case (e. g. whether D, being charged with murder, intended to kill) as the direction on burden and standard of proof will be adequate; or • when the accused explained why he lied and the judge dealt with his explanation; or • when, on the facts of the case, if the jury decide that the accused lied they will have almost no alternative other than convicting him; or • Where, in the circumstances, giving a full Lucas direction would do the accused more harm than good (though a modified direction may still be appropriate).

Colin is charged with the murder of Dan. Colin admits shooting Dan but asserts that he did so accidentally, whilst he was cleaning his gun. The prosecution assert that Colin is lying and that he shot Dan deliberately. Which of (i) or (ii) is/are true? (i) The judge must give the jury a Lucas direction because the prosecution assert that Colin is lying (ii) The prosecution must prove beyond reasonable doubt that Colin possessed the mens rea of murder (ii) is true

Lucas direction: Role of Counsel Whether a direction should be given and, if so, how it should be tailored with reference to the facts of the case are matters that counsel should discuss with the judge before closing speeches (if defence counsel has not raised the issue the Court of Appeal is likely to be unsympathetic)