The defendants appealed against their convictions which had been based upon evidence of visual identification.
Held: Identification evidence can be unreliable, and courts must take steps to reduce injustice. The judge should warn the jury of the special need for caution before convicting the accused in reliance upon the correctness of identification. No special form of words need be used. The jury should examine closely the circumstances of the identification. Recognition may be more reliable than identification of a stranger, but mistakes can still be made.
Lord Widgery discussed the direction about alibi evidence: ‘Care should be taken by the judge when directing the jury about the support for an identification which may be derived from the fact that they have rejected an alibi. False alibis may be put forward for many reasons: an accused, for example, who has only his own truthful evidence to rely on may stupidly fabricate an alibi and get lying witnesses to support it out of fear that his own evidence will not be enough. Further, alibi witnesses can make genuine mistakes about dates and occasions like any other witnesses can. It is only when the jury is satisfied that the sole reason for the fabrication was to deceive them and there is no other explanation for its being put forward, that fabrication can provide any support for identification evidence. The jury should be reminded that proving the accused has told lies about where he was at the material time does not by itself prove that he was where the identifying witness says he was.’
Lord Widgery continued: ‘In our judgment the dangers of miscarriage of justice occurring can be much reduced if trial judges sum up to juries in the way indicated in this judgment. First, whenever the case against an accused depends wholly or substantially on the correctness of one or more identifications of the accused which the defence alleges to be mistaken, the Judge should warn the jury of the special need for caution before convicting the accused in reliance on the correctness of the identification or identifications. In addition he should instruct them as to the reason for the need for such a warning and should make some reference to the possibility that a mistaken witness can be a convincing one and that a number of such witnesses can all be mistaken. Provided this is done in clear terms the Judge need not use any particular form of words. Secondly, the judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made. How long did the witness have the accused under observation? At what distance? In what light? Was the observation impeded in any way, as for example by passing traffic or a press of people? Had the witness ever seen the accused before? How often? If only occasionally, had he any special reason for remembering the accused? How long elapsed between the original observation and the subsequent identification to the police? Was there any material discrepancy between the description of the accused given to the police by the witness when first seen by them and his actual appearance? If in any case, whether it is being dealt with summarily or on indictment, the prosecution have reason to believe that there is such a material discrepancy they should supply the accused or his legal advisers with particulars of the description the police were first given. In all cases if the accused asks to be given particulars of such descriptions, the prosecution should supply them. Finally, he should remind the jury of any specific weaknesses which had appeared in the identification evidence.’
‘Recognition may be more reliable than identification of a stranger; but even when the witness is purporting to recognise someone whom he knows, the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made. All these matters go to the quality of the identification evidence. If the quality is good and remains good at the close of the accused’s case, the danger of a mistaken identification is lessened, but the poorer the quality, the greater the danger . . When, in the judgment of the trial judge, the quality of the identifying evidence is poor, as for example when it depends solely on a fleeting glance or on a longer observation made in difficult conditions, the situation is very different. The judge should then withdraw the case from the jury and direct an acquittal unless there is other evidence which goes to support the correctness of the identification. This may be corroboration in the sense lawyers use that word; but it need not be so if its effect is to make the jury sure that there has been no mistaken identification: for example, X sees the accused snatch a woman’s handbag; he gets only a fleeting glance of the thief’s face as he runs off but he does see him entering a nearby house. Later he picks out the accused on an identity parade. If there was no more evidence than this, the poor quality of the identification would require the judge to withdraw the case from the jury; but this would not be so if there was evidence that the house into which the accused was alleged by X to have run was his father’s . . In our judgment odd coincidences can, if unexplained, be supporting evidence. The trial judge should identify to the jury the evidence which he adjudges is capable of supporting the evidence of identification. If there is any evidence or circumstances which the jury might think was supporting when it did not have this quality, the judge should say so.’
Widgery LCJ, Roskill and Lawton L.JJ., Cusack and May JJ
[1976] 3 WLR 445, [1977] QB 224, (1976) 63 CAR 132, [1976] 3 All ER 549
lip
England and Wales
Citing:
Cited – Regina v Long CACD 1973
The accused, who was charged with robbery, had been identified by three witnesses in different places on different occasions but each had only a momentary opportunity for observation. Immediately after the robbery the accused had left his home and . .
Cited by:
Cited – Regina v Charles CACD 19-Jul-2001
The defendants appealed convictions for robbery, disputing the admission of police and identification evidence. There had been several failures to comply with the codes of practice, including the failure to hold an identity parade when so requested, . .
Cited – Dean Cedeno v Kenwin Logan PC 18-Dec-2000
(Trinidad and Tobago) The defendant appealed conviction and sentence for larceny, based on identification evidence. He said that the magistrate had failed to give proper weight to the need, pace Turnbull, to be careful in accepting identification . .
Cited – Leslie Tiwari v The State (Appeal No 76 of 2001) PC 29-May-2002
(Trinidad and Tobago) The defendant appealed convictions for rape and other offences based upon identification evidence. He had not been represented at the trial. He had not been warned of his freedom to call witnesses.
Held: Where a defendant . .
Cited – Barry George v Regina CACD 29-Jul-2002
There had been an identification parade, but the witness had not made an unqualified identification of the defendant. He now appealed admission of the evidence from ID parade.
Held: Recognising the difficulties in identification evidence, and . .
Cited – Pratt and Morgan v The Attorney General for Jamaica and Another PC 2-Nov-1993
(Jamaica) A five year delay in execution is excessive, and can itself amount to inhuman or degrading punishment. ‘There is an instinctive revulsion against the prospect of hanging a man after he has been held under sentence of death for many years. . .
Cited – Bertrand Roberts and Roland Roberts v The State PC 15-Jan-2003
PC (Trinidad and Tobago) The appellants had been convicted of murder and their capital sentences commuted. They now sought to challenge the convictions as to the admission of and directions given on the . .
Cited – Regina v Haynes CACD 2-Feb-2004
In a difficult case, the judge asked for the assistance of counsel in the absence of the jury, but declined assistance in connection with his proposed Turnbull direction. That direction was then said to be defective.
Held: A wise judge makes . .
Applied – Regina v Stanton CACD 10-Mar-2004
In the course of the defendant’s trial issues of identification arose. The defendant appealed.
Held: The judge failed to draw to the attention of the jury any specific weaknesses in the identification evidence as required in Turnbull. It was a . .
Cited – Davies v Regina CACD 29-Oct-2004
The defendant appealed against his conviction for murder. He said the identification was partial and weak, being of a partial face and two spoken words. It was objected that his counsel had wrongly failed to object to its admission.
Held: . .
Cited – Regina v Flemming CACD 1986
It was quite unnecessary for a trial judge faced with issues about the quality or probative value of identification evidence to hold a trial-within-a-trial. The normal procedure was that laid down in Turnbull, where the court ‘made it abundantly . .
Cited – Regina v Bentley CACD 1991
Where an identification depends upon the recognition by the witness of a person or persons previously known to him, the jury should be reminded that there is remains a risk for mistake in such cases. Many people have experienced thinking that they . .
Cited – Fuller v State 1995
(Court of Appeal of Trinidad and Tobago) The court gave guidance on the need to give proper directions on identification evidence to accord with Turnbull: ‘We are concerned about the repeated failures of trial judges to instruct juries properly on . .
Cited – Aurelio Pop v The Queen PC 22-May-2003
PC (Belize) A witness identified the accused only making the link between the man he knew as R and the accused as the result of an improper leading question by prosecuting counsel. There had been no . .
Cited – Langford and Another v The State PC 11-May-2005
(Dominica) The appellants appealed convictions for together having kicked a man to death. They said the convictions were founded on unreliable identification evidence.
Held: The judge had made several misdirections, as to the reliability of . .
Cited – Regina v Thornton CACD 2-Jun-1994
A judge is to give the jury a full Turnbull warning on identification evidence if identity is disputed. The defendant was at the scene, but denied his involvement. . .
Cited – Delroy Ricketts v The Queen PC 15-Dec-1997
(Jamaica) Special leave was granted to the defendant to appeal his conviction for murder. Counsel had been late for his trial, and the jury empanelled. When counsel arrived he said the defendant had not understood the judge. A trial took place as to . .
Cited – Director of Public Prosecutions v Uddin Admn 8-Jun-2006
Prosecutor’s appeal by case stated against dismissal of charge of taking vehicle without the owner’s consent. Officer’s fleeting sight of defendant who was known to him driving. . .
Cited – Gaines-Cooper v HM Revenue and Customs ChD 13-Nov-2007
The parties disputed the domicile of the tax-payer. He had a domicile of origin in the UK, but asserted that he had acquired a domicile of choice in the Seychelles. The Special Commissioners had allowed, in assessing the domicile at any time, of . .
Cited – Labastide and Carty, Regina v CACD 19-Nov-2008
The defendants appealed their conviction for murder. They were said to have been members of a gang, and were present and armed and part of the joint enterprise leading to the murder. The convictions were based on identification evidence from . .
Cited – Phipps v The Director of Public Prosecutions and Another PC 27-Jun-2012
phipps_dppPC2012
(Jamaica) The defendant appealed against his conviction for murder. He complained that he had been prejudiced because the jury were told that he had been produced from custody, and one of his witnesses was produced in court in chains, thus . .
Cited – Adeojo and Another v Regina CACD 6-Feb-2013
The defendants appealed against their convictions for murder saying that the court should not have relied upon hearsay evidence. A witness had refused to give evidence, but his earlier evidnece was used.
Held: The appeals failed. The judge had . .
Cited – Weir and Another, Regina v CANI 14-Jan-2013
Renewed application for leave to appeal against convictions for robbery. The defendant complained as to the unreliability of identification evidence, and as to a note passed by the jury to the judge indicating the use by the jury of the specialist . .
Cited – Regina v Holmes CACD 14-Mar-2014
The defendant appealed against his conviction for sexual and common assault. He objected as to the use of bad character evidence, and the rejection of his no case to answer submission. The evidence was primarily by identification where the . .
Distinguished – Regina v Browning CACD 1991
A witness by the name of Hughes said that he was overtaken at considerable speed by a Renault 25 with a registration number beginning C7.
Held: The peculiar risks of mistaken facial identification do not apply to the same extent to evidence of . .
Dsitinguished – Hampton and Another v The Crown CACD 30-Jul-2004
The defendants appealed against their convictions for murder. Evidence had been admitted as to the identification of a car from a memory of the registration mark by a witness.
Held: The evidence was properly admitted without a Turnbull . .
Cited – The Queen v Crawford PC 11-Nov-2015
From the Court of Appeal of the Cayman Islands – The crown appealed against the quashing of the respondent’s conviction for possession of an unlicensed firearm. A gun was found where he had been seen to discard a gun whilst being chased. The . .
Lists of cited by and citing cases may be incomplete.
Criminal Evidence
Leading Case
Updated: 01 November 2021; Ref: scu.174045