Visual
Identification
Procedures
Under PACE Code D
David Wolchover
www.DavidWolchover.co.uk
Visual Identification Procedures
Under PACE Code D
David Wolchover
Of Gray’s Inn, Barrister
Former Head of Chambers
at
Seven Bell Yard
www.DavidWolchover.co.uk
Published on-line at www.DavidWolchover.co.uk
(Expanded from an earlier version published on-line 26 November 2003)
Previously posted: 23/02/05; 11/03/05; 1/04/05; 5/07/05; 8/09/05; 20/10/05; 18/11/05; 20/6/06; 28/04/07; 18/05/07;
1/08/07; 11/11/07; 27/11/07; 15/01/08; 16/05/09; 10/12/09; 15/12/09; 12/02/11; 27/03/11; 22/09/15; 04/10/15; 16/04/16
This edition posted 14/06/2016
Readers should note that as a result of recent editing there may be some discrepancies in cross referencing between particular passages of text or footnotes and other such text footnotes of which lack of time has precluded amendment. It is planned to complete that exercise in the near future.
© David Wolchover, www.davidwolchover.co.uk
Set in Microsoft Word 10 point Times New Roman
All rights reserved. UK statutory material in this publication is acknowledged as Crown Copyright. No part of this work may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or any information storage or retrieval system without prior permission of the author and webowner
Contents
Table of
Cases i
Chapter 1 Visual Identification in
the Criminal Process 1
Chapter 2 Suspect’s Identity Not Known 27
Chapter 3 Suspect’s Identity Known 56
Chapter 4 Video Identification Parades 96
Chapter 5 The Evidence in Court 151
Table of Cases
Table of Cases
Please note that earlier discrepancies in
page references have been corrected
Attorney-General’s Reference (No. 2 of 2002) [2003] 1 Cr.App.R. 21 10, 13, 42
Castorina v Chief Constable of Surrey [1996] LGRR 241 14
Chapman v DPP (1988) 89 Cr.App. R. 190 14
Coulman v D.P.P. [1997] C.O.D. 91, D.C. 15, 43, 53
Cumming and others v Chief Constable of Northumbia Police
[2003] EWCA Civ 1884 99 16
Holland v. H.M. Advocate,The Times, June 1, 2005 151
Kajala v Noble (1982) 75 Cr.App.R. 149, D.C. 26
K v DPP [2003] EWHC 351 (Admin); [2003] 4 Archbold News 1 14, 66, 158
McKenna v. DPP [2005] 5 Archbold News 2 73
O’Hara v Chief Constable of the Royal Ulster Constabulary
[1997] 1 Cr.App.R. 447 14
Perry v United Kingdom (2003) E.C.H.R. No. 63737/00 92, 116
Powell v D.P.P [1992] RTR 270 157
R v Allen [1996] Crim.L.R. 426 28, 154, 157
R v Amin [2015] 631 19, 78
R v Anastasiou [1998] Crim.L.R. 67 69, 76
R v Aurelio Pop(2003) 147 S.J. 692 151
R v Bell [1998] Crim.L.R. 87 68, 71
R v Birch, Bryant and Crowley (1992) unreported CA 90/0947/Z3 146
R v Blenkinsop [1995] 1 Cr.App.R. 7 9, 43
R v Brizey (1994) unreported, 10 March 51
R v Brown [1991] Crim.L.R. 368 43, 70
R v Bush (1997) unreported, 27 January 15
R v Byron (1999) unreported, 12 February 58
R v Chen and others [2001] 5 Archbold News 3 66, 67
R v Christie [1914] AC 545 152
R v Clare and Peach [1995 2 Cr.App.R. 333 10, 43
R v Cole (2013) unreported July 5, C.A. 18
R v Conway (1990) 91 Cr.App.R. 142 73
R v Constantinou (1990) 91 Cr.App.R. 74, C.C.C. 34
R v Cook (1987) 84 Cr.App.R. 369 34
R v Crowe, unreported C.A. 6 March 1998 48
R v Dodson and Williams (1984) 79 Cr.App.R. 220 42
R v Downey [1995] 1 Cr.App.R. 547 43
R v Duggan (1998) unreported 16 June 48
R v Edwards (2006) 150 S.J. 570 151
R v El Hannachi and others [1998] 2 Cr.App.R. 226 14, 48, 68
R v Elson (1994) unreported, C.A. 94/0547/Y3 129, 145
R v Emiku [2003] EWCA Crim 2237 62
R v Finley [1993] Crim.L.R. 50 129, 159
R v Folan [2003] EWCA Crim 908 87, 94
R v Forbes [2001] 1 Cr.App.R. 4306 7, 13, 43, 69, 70, 73, 155, 159
R v Fowden and White [1982] Crim.L.R. 588 25, 40
R v Fuller (2000) unreported, 22 May 50, 158
R v Gall [1989] Crim.L.R. 745 111, 158
R v Gasper [2002] EWCA Crim 1764 85
R v Gayle [1999] 2 Cr.App.R. 130 61
R v George [2003] Crim L.R. 282 79, 83, 101, 153
R v Gojra and Dhir [2011] Crim.L.L. 311 63
R v Gornall 149 S.J. 300 16
R v Governor of Pentonville Prison ex p Voets [1986] 1W.L.R. 470 29
R v Graham [1994] Crim. L.R. 414 56
R v Grimer [1982] Crim.L.R. 674, C.A. 9
R v Harley (2000) unreported, 22 February 77
R v Harris [2003] EWCA Crim 174 58, 70, 72, 74, 105, 155, 158 159
R v Haynes [2004] EWCA Crim 390 73
R v Hickin [1996] Crim.L.R. 584 47, 50, 54, 55, 158
R v Hope, Limburn and Bleasdale [1994] Crim.L.R. 118 66
R v Jamel [1993] CrimL.R. 52 82
R v Jones and Nelson, The Times 21 April, 1999 57, 137
R v Jones and others (1994) 158 J.P. 293 44
R v Joseph [1994] Crim.L.R. 48 157
R v Kennedy (1992) unreported, C.A. 20 March, 90/02296/Y4 91, 96, 116, 125
R v Kitchen [1994] Crim.L.R. 684 14, 28, 77
R v Lamb (1980) 71 Cr.App.R. 198 28, 30
R v Lambert [2004] EWCA Crim 154; (2004) 68 J.C.L. 285 62, 63
R v Lariba [2015] Crim. L.R. 534, C.A. 13, 39
R v Lennon (1999) 63 J.C.L. 459 55
R v Loveridge et al. [2001] 2 Cr.App.R. 29 92
R v Malashev [1997] Crim.L.R. 587 46
R v McCartney and others [2001] EWCA Crim 2283;
[2003] 6 Archbold News 2 62
R v McKay (1900) 91 Cr.App.R. 84; [1990] Crim.L.R. 338 152
R v McMath [1997] Crim.L.R. 586 48, 49, 66, 70
R v McNamara [1996] Crim.L.R. 750, C.A. 42
R v Maqsud Ali [1966] 1 Q.B. 688, C.A. 25
R v Marcus (Ruel) [2004] EWCA Crim 3387; [2004] All ER (D) 351 83,121
R v Maughan (Bernard), unreported, Wood Green Crown Court, T98 0680 147
R v Mendili [2001] EWCA Crim 757 126, 159
R v Meredith and Cowan [2001] EWCA Crim 1415 62
R v Miah [2001] EWCA Crim 2281 47
R v Morrisey (2014) 78 J.C.L. 460 42
R v Moss [2011] Crim.L.R. 560 13, 39
R v Muhidinz (2005) 70 J.C.L. 197 66
R v Nagah (1991) 92 Cr.App.R. 344 158
R v Nicholson [2000] Cr.App.R. 182 58
R v Noonan [2003] EWCA Crim 3869 75
R v Nunes [2001] EWCA Crim 2283; 10 Archbold News 1 15, 53, 55, 70, 76
R v O’Brien et al. [1982] Crim.L.R. 746 34, 157
R v O’Leary and Lloyd-Evans 67 J.C.L. 115; CLW/03/16/5 66, 70
R v Okorudu [1982] Crim. L.R. 747 34
R v Osborne and Virtue [1973] 57 Cr.App.R. 297; [1973] Crim.L.R. 178 152
R v Oscar [1991] Crim.L.R. 778 73
R v Perry (2000) unreported, 3April 116
R v Popat [1998] 2 Cr.App.R. 208 44, 58, 69, 154
R v Popat (No 2) [2000] 1 Cr.App.R. 387 69
R v Quinn [1995] 1 Cr.App.R. 480 111, 126, 159
R v Rogers [1993] Crim.L.R.386 16
R v Rutherford and Palmer (1994) 98 Cr.App.R. 191 58
R v Ryan [1992] Crim.L.R. 187 111
R v Shanmugarajah and Liberna[2015] 2 Cr.App.R. 215(14) 43, 62, 93
R v Slater [1995] 1 Cr.App.R. 584 66
R v Smith (Dean Martin) and others [2009] 1.Cr.App.R. 521 (36) 13, 39
R v Tolson (1864) 4 F. & F. 103 25
R v Turnbull (1977) 98 Cr.App.R. 313 2, 43, 66,132, 159
R v Vaughan (1997) The Independent 12 May 46, 47, 48, 55,158
R v Wait [1998] Crim. L.R. 68 44, 70
R v Walters [2001] EWCA Crim 1261 111
R v Williams [2000] unreported, February 22, C.A. 30
R v Williams [2003] EWCA 3200; (2003) SJ 1305 16
R v Williamson [2002] EWCA Crim 1809 73
R v Willoughby [1999] 2 Cr. App.R. 82 121, 142, 147
R v Wright [1994] Crim.L.R. 131 114
Ryan v D.P.P. (2000) unreported, 10 October 48
Taylor v Chief Constable of Cheshire (1987) 84 Cr,App.R. 191, D.C. 25, 26
Tido v The Queen, unreported, June 15, 2011 151
iii
Visual Identification in the Criminal Process
Chapter 1
Visual Identification in the Criminal Process
A. The Dawning of Enlightenment
Every criminal investigation involves the initial question of the offender’s identity. In some cases the police will have little or no idea who may have perpetrated the crime. In other cases they may quickly discover facts which bring a particular individual under suspicion. Sometimes those grounds for suspicion will trigger a confession. Often forensic science will be vital in proving identity and increasingly science is displacing subjective testimony across a broad range of disciplines. However, a very important instrument of proof of guilt remains, as it has always been, that of establishing the identity of the culprit visually by eyewitnesses. In a less sophisticated age, where the culprit was a stranger to the eyewitness and someone fell under suspicion reliance would be placed on confronting the suspect with the witness as a means of establishing that the suspect and the culprit were one and the same person. Later, in court, the witness might or might not be asked to confirm that he had earlier identified that person as the culprit. However, with or without any refererence to an earlier identification, witnesses would almost invariably be invited to say if they could see the person in the court room. Such a studied avoidance of a leading question was entirely spurious, as if it would neutralise the pointed effect upon the witness of the glaring presence of the defendant sitting in the dock. (The formal identification of the accused in court in this way later became known as a “dock identification.”) With enlightenment it came to be appreciated that the force of suggestion was an innate deficiency of blunt confrontation and in the view of the committee on identification evidence chaired by Lord Devlin it was probably judicial criticism of its crudeness which resulted in the emergence of the identification parade as the best practicable palliative.[1] The commentator C. H. Rolph pointed out that “the mists of antiquity have closed over the date” when identification parades first emerged[2] but rules for conducting them have been traced at least as far back as a Metropolitan Police Order of 24 March, 1860 following some remarks of the Assistant Judge at the Middlesex Sessions.[3] In the wake of the notorious case of Adolf Beck in 1904[4] the Metropolitan Police revised their regulations, which in 1905 were commended by the Home Secretary to all Chief Constables[5] and from time to time thereafter, typically following some cause célèbre or other,[6] the rules¾strictly speaking guidance principles¾were refined and improved through amendments published by Home Office circular. Then, following two notorious miscarriages of justice involving mistaken visual identification, the Devlin committee was appointed to consider the whole question of visual identification and issued their celebrated report in 1976.[7]
Apart from examining the two cases in detail Devlin reviewed investigative procedures for cases involving visual identification and the management at trial of evidence relating to the issue of identification and focused attention on the growing body of research into the psychology of identification. The report made a number of recommendations, most prominent perhaps of which was that visual identification should not normally be permitted to sustain a conviction unless supported by substantial evidence of another sort. Inspired by Devlin, the Court of Appeal, in R v Turnbull,[8] issued guidance on the withdrawal of weak cases from the jury and on the standard directions which juries were to be given about the potential dangers involved in visual identification. However, the court stopped short of declaring a rule requiring corroboration of such evidence and convictions may be sustained, not merely in theory, but in practice too, on the evidence of a visual identification alone. To attempt to understand what factors may have been behind the court’s attitude it is necessary to move from history to a brief consideration of human nature.
B. Balancing Assumptions on Accuracy and Error
The visual recognition of a particular person from the memory of a previous encounter will typically be based on one or more of a number of general features: gender, age, build, height, hair, complexion, ethnicity, hair type and colour, to specify most of the obvious ones. While any one of these may tend either to remove a person from suspicion or point to the possibility that the person was the offender, even in combination they can rarely if ever by themselves furnish proof of guilt because there will be nothing uniquely distinctive about a person’s appearance when described under these categories. However, it is the human face which, visually (though self-evidently with far less certainty than in the case of a fingerprint or DNA match) marks out an individual from almost every other person on the planet. It may be an innate grasp of this fact which instils in each of us an instinctive feeling that even if we cannot easily call it up into our mind’s eye we never forget a face, once noticed, when we see it again and it may be a reflection of that instinctive understanding that investigators, lawyers and jurors have tended to believe in the general infallibility of face recognition.
In order to comprehend and thereby to try to prevent those breathtaking errors of identification of the kind retailed earlier a growing body of psychologists have been drawn to conduct a wide range of theoretical and empirical research on the mental processes involved in recognition, particularly of the face. With the accumulation of the number of published experimental studies, particularly those based on staged crimes, the realisation has grown that false identifications following dramatic events are by no means uncommon.[9] Large scale studies of actual cases have seemed to bear this out.[10] As a result of this research the old-time blind faith in the absolute reliability of facial identification has given way, in the mind of some populist commentators, to the contrary dogma that practically no one is capable of remembering a face and that identification evidence is “virtually useless.”[11] According to at least one authoritative statement of expert opinion, “[t]his is a view which is both far too pessimistic and too simplistic.”[12] The rather more balanced, if perhaps obvious, judgment has been expressed that psychological research has shown that witnesses’ identification performance can range from total accuracy to total inaccuracy depending upon a multitude of factors.”[13] In a reference to this opinion it has been observed that—