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Visual Identification Evidence, In the investigation phase - Code D of…
Visual Identification Evidence
Turnbull Guidelines
Applies where case against D depends wholly or substantially on the correctness of an ID, which the D alleges to be mistaken
If the accuracy of the identificaion is not an issue, or if the defence case is that the witness is deliberately lying about the D's identity, Turnbull direction is not necessary
Warn of a special need for caution and why it is necessary, because a honest witness may be a mistaken witness - then tailor the circumstances to the case
Direct jury to examine closely the circumstances of the purported ID - lighting, distance, length of time, obstructions, whether seen D before, any discrepancies with description given
If there has been a description and identification, then the judge must remind the jury of the description, with particular detail if the description given is different from the person identified
Problem
Key Underlying Risk - Genuine Mistake
Honest, helpful witnesses may still be mistaken
May be issues of identification even where the D is known to the witness
Identification
It is where the individual suspect is identified, whether by name, or by being picked out
Not just a description - of clothes or of features
Not where witness says the suspect was in a particular car or with a named person without being able to name or identify the suspect
Managing risk of mistaken identification
At trial - a Turnbull direction to the direction to the jury (or the magistrates directing themselves (but it is clearer to think of a jury)
Recognition Cases
Code D identification procedures might serve no purpose in a case of recognition
Turnbull direction will usually be required, unless there is no possibility of genuine mistake
Part of the direction will include that recognition may be more likely to be reliable than identification of a stranger, but that mistakes in the recognition of friends and relatives can still be made
Supporting evidence
As part of a Turnbull direction, the Judge needs to identify any supporting evidence
Bad character (particular care needed)
Mutually supportive identifications
Self - incrimination (confession)
Warning over risk of false lies
Have to consider whether Lucas direction is needed
Silence (inferences)
Quality of Witness
Or police officers who are better trained to notice things like description
Stopping the trial
Turnbull requires the judge to stop case (and direct on acquittal) where ID evidence is too weak and unsupported
If necessary, should invite Defence to make Galbriath submission
Qualified ID (not quite sure) is not enough on its own to support a conviction, but may form part of a case alongside other evidence supporting that ID (eg - forensic)
Dock ID
Identification of the D for the first time in court
Usually prohibited, save in minor summary offences
If witness makes one, jury should be warned against relying on it
Sometimes acceptable in recognition cases - eg family members
Also need to take care to avoid first ID at court building
Important things to think in exam
Was there an identification or just a desciption
If there was an identification, is there a need for Turnbull direction
if so, what should it include on the facts of this problem
In the investigation phase - Code D of PACE
Whenever a witness makes, purpots to make or is likely to be able to make an identification, they should be invited to take part in a Code D procedure
Doesn't apply if the accuracy of the ID is not in dispute
If the D admits presence, or the witness had known the D for many years and claims to have conversed with the D for several minutes in perfect visibility prior to the alleged offence
Breach of the code does not necessarily lead to the exclusion of the identification
Has there been a breach?
Has prejudice occurred?
Would the adverse impact of the prejudice be such that the evidence ought to be excluded under s.78