Transcript Document

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
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. 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
co-accused 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)