The court considered the use in evidence of facial photograph comparison techniques. The expert had given an opinion that the comparison gave support to a conclusion that the photograph in issue was of the defendant, but there was no database showing any statistical basis for the suggestion. The defendant said that the use of the expressions of level of support in the form of an ascending scale carries the risk of bestowing upon evidence which is purely subjective a spurious scientific authority.
Held: Evidence based on facial recognition has been repeatedly accepted. Such a sliding scale must be used only with caution: ‘it does not have a scientific basis, in the sense of an arithmetical or numerical scale; it is simply a convenient means of expressing a conclusion.’ However ‘the fact that a conclusion is not based upon a statistical database recording the incidence of the features compared as they appear in the population at large needs to be made crystal clear to the jury. But we do not agree that the absence of such a database means that no opinion can be expressed by the witness beyond rehearsing his examination of the photographs. An expert who spends years studying this kind of comparison can properly form a judgment as to the significance of what he has found in any particular case. It is a judgment based on his experience. A jury is entitled to be informed of his assessment. The alternative, of simply leaving the jury to make up its own mind about the similarities and dissimilarities, with no assistance at all about their significance, would be to give the jury raw material with no means of evaluating it. It would be as likely to result in over-valuation of the evidence as under-valuation. It would be more, not less, likely to result in an unsafe conclusion than providing the jury with the expert’s opinion, properly debated through cross-examination and, if not shared by another expert, countered by contrary evidence.’ Disallowing such a sliding scale would also leave a defendant less scope to challenge the evidence.
‘there can be proper anxiety about new areas of expertise. Courts need to be scrupulous to ensure that evidence proffered as expert, for any party, is indeed based upon specialised experience, knowledge or study. Mere self-certification, without demonstration of study, method and expertise, is by itself not sufficient. It sometimes happens that such anxieties are reinforced when experts overstate their case, as the experts under consideration in both Gray and Tang appear to have done. But the remedy is not to prevent all experts, good and bad, from expressing any informed opinion at all as to the import of their findings. The three principal remedies are (i) to have such evidence examined and, if appropriate, criticised by an expert of equal experience and skill, (ii) to subject the evidence to rigorous testing in the witness box and (iii) to ensure careful judicial exposition to the jury of the difference between factual examination/comparison or arithmetical measure on the one hand and, on the other, a subjective, but informed, judgment of the significance of the findings.’
Hughes LJ, Rafferty J, Slade J
[2009] EWCA Crim 1876
Bailii
England and Wales
Citing:
Cited – Regina v Clarke CACD 30-Jan-1995
There were no special rules for the admission of evidence by computerised facial mapping. The ultimate gatekeepers on the admission of evidence of previous convictions are the rules on similar fact evidence. . .
Cited – Regina v Gray CACD 2003
Mitting J discussed the use of facial mapping expert evidence: ‘We do not however wish to pass from this appeal without making general observations about the use of facial imaging and mapping expert evidence of a reliable kind. Mr Harrow, like some . .
Cited – Regina v Stockwell CA 5-Apr-1993
Expert evidence of facial comparison was admissible if the information and assessment are not otherwise available to the jury. As to Turner: ‘It is to be noted that Lawton LJ there referred to a jury forming their own conclusions ‘without help’. . .
Cited – Regina v Hien Puoc Tang 24-May-2006
Austlii (Supreme Court of New South Wales – Court of Criminal Appeal) CRIMINAL LAW – Evidence – Judicial discretion to admit or exclude Evidence – whether opinion evidence of identity based on facial mapping and . .
Cited – Regina v Hookway CACD 1-Feb-1999
The defendant appealed against his conviction based on expert facial mapping evidence.
Held: Such evidence might stand on its own, and had been properly left before the jury. . .
Cited – Attorney General’s Reference (No 2 of 2002) CACD 7-Oct-2002
The defendants had been seen on video. The prosecution sought to admit, in addition to the video evidence itself, evidence from police officers as to the identity of persons claimed to be shown on the tape. The officers evidence was offered but not . .
Binding – Regina v Gardner CACD 28-Jun-2004
The court affirmed the general admissibility of expert facial comparison evidence, and said: ‘There is no rule . . that in a case such as the present an expert witness cannot go further than saying ‘there are the following similarities’ leaving the . .
Cited – Regina v Ciantar CACD 2005
The court considered a case in which there was admited expert evidence using posture to identify the defendant. . .
Cited – Regina v Luttrell; Regina v Dawson; Regina v Hamberger CACD 28-May-2004
The defendants appealed saying the court had wrongly admitted the evidence of a lip reader.
Held: Lip-reading was a recognised skill, and provided the judge gave appropriate warnings to a jury, recognising the possibility that evidence may not . .
Lists of cited by and citing cases may be incomplete.
Criminal Evidence
Updated: 02 November 2021; Ref: scu.375561