SQE1 Criminal Litigation · Page 7 of 7

Challenge the evidence at trial: section 78, Turnbull, sufficiency and weight

Identification Evidence and Code D Procedure

First identify the remedy being sought

The police-station solicitor's records become material for the trial advocate: the first description, notices, requests, set or parade composition, all previous exposures, exact selections and non-selections, objections and decisions. The next step is not always exclusion. A defence may seek a missing record, challenge admission, submit that there is no case to answer, request an appropriately tailored direction, or argue that admitted evidence should not be believed. Each request has a distinct purpose.

PACE section 67(10) means that breach of a Code does not, by itself, create civil or criminal liability. It does not make the Code optional. Under section 67(11) the Code is admissible in evidence, and a relevant provision must be taken into account when deciding a question arising in the proceedings. Identify what was required, what happened and the safeguard lost before arguing about consequences.

PACE section 78(1) permits the court to exclude prosecution evidence where, having considered all the circumstances, including how it was obtained, admission would adversely affect the fairness of the proceedings to the extent that the evidence ought not be admitted. This is a judicial discretion, not a rule that every breach produces exclusion. Nor is it confined to confessions. The separate mandatory confession rules are explained in Confessions and Exclusion of Prosecution Evidence; an identification must not be treated as a confession merely to import that different test.

For an identification challenge, connect the defect with its effect. Was the suspect uniquely marked in the set? Did police tell the witness whom to select? Was a required opportunity lost which might have produced a non-selection? Was an earlier failure concealed? Can the defence still examine the actual material and test the witness's account? Deliberate circumvention, substantial suggestion or the loss of a meaningful defence opportunity may be more serious than a technical irregularity without relevant prejudice. The court assesses fairness in the particular case. PACE section 78; , paragraphs 23–28.

Case law: Forbes — breach and outcome require separate conclusions

In , the House of Lords found that the required identification procedure had been omitted, but did not treat that finding as automatically decisive of admission or the conviction. It considered the strength and history of the street identification, the other circumstances, and the way the issue had been put before the jury. The appeal was dismissed.

Where evidence obtained after a Code D breach is admitted, the jury normally needs an explanation of what should have happened, why the safeguard mattered and how its absence might prejudice the defendant. The lesson is twofold: do not disregard the breach, and do not substitute a breach label for the separate fairness and safety analysis. , paragraphs 23–30.

The Turnbull safeguard is about the risk of honest mistake

Where the prosecution case depends wholly or substantially on disputed visual identification, , [1977] QB 224, requires a tailored warning about the special need for caution before conviction. The issue is the correctness of identification, not merely whether the witness is lying. Explain that a sincere and convincing witness may be mistaken and that more than one witness may share a mistake. , [1976] 3 All ER 549, 552–553.

A is the judge's explanation of that risk and its application to the actual evidence. The judge should direct the jury to examine the opportunity to observe: duration, distance, light, obstruction and visibility; whether the person was moving or disguised; previous familiarity and its quality; the interval before identification; and the first description and any significant discrepancy. Previous image exposure, discussions and a failed selection must be addressed where they affect this case. Recognition of a familiar person may be stronger than stranger identification, but mistakes can occur even with relatives or close acquaintances.

A recital of factors is not enough. Explain which facts strengthen or weaken this witness's identification. For example, “seen for ten seconds” means little without distance, lighting, the visible part of the face and what attracted attention. Confidence expressed after a named photograph may have a different significance from an immediate identification before any cue. Analyse witnesses individually as well as the combined case. , 552–553; Crown Court Compendium, Part I, section 15-1, paragraphs 10–19.

Code D compliance and Turnbull quality are separate. An impeccable video set does not improve the witness's original two-second view in darkness. Conversely, a witness may have had a strong original observation even though a later procedural breach requires separate fairness scrutiny. Do not decide observation quality by counting forms completed or deciding whether police acted in good faith.

Quality, support and sufficiency

Good-quality identification may be left to the jury even without other supporting evidence, provided the required caution and directions are given. There is no universal rule that visual identification must always be corroborated. Poor-quality identification, such as a fleeting glance or difficult observation, should be withdrawn from the jury unless there is other evidence capable of supporting its correctness. A warning cannot supply missing support. , 553; Crown Court Compendium, Part I, section 15-1, paragraphs 5 and 11–19.

“Supporting evidence” is evidence which genuinely assists in deciding whether the identification is correct. It need not satisfy a separate technical rule demanding corroboration, meaning independent confirmation of a material part of an account. Its connection to identity must nevertheless be explained. Proof that a robbery occurred does not necessarily identify this defendant as its perpetrator. A common item of clothing may contribute little; a verified link to an unusual item used by the offender may have greater value. Examine the alternative explanation and the precise inference, rather than call every additional exhibit corroboration.

Two witnesses may provide mutual support where the fact-finder is sure of the necessary honesty and independence. It would be wrong to require DNA or another wholly different type of evidence in every case. But two witnesses who discussed a named photograph may repeat a single contaminated source rather than give independent confirmation. The judge should explain which evidence is capable of supporting identification, and warn against treating material that cannot do so as support. , 553–554; Crown Court Compendium, Part I, section 15-1, paragraphs 11–19.

An alibi is an account placing the defendant elsewhere at the material time. A rejected alibi is not automatically positive proof that the witness identified the correct person. An innocent defendant may give an untruthful explanation for other reasons. The court must apply the specific safeguards before treating a knowingly fabricated alibi as support. Likewise, any possible consequence of interview or trial silence has its own statutory conditions; it is not a missing piece to insert merely because identification is weak. The separate silence rules are addressed in Police-Station Rights, Detention and Lawful Interview and the trial teaching. , 553–554; Crown Court Compendium, Part I, section 15-1.

Case law: Turnbull and Camelo — weak observation with other supporting circumstances

Facts. These appeals concerned a plan to divert bank night-deposit customers through a false notice and then steal the deposits. An off-duty officer's sighting of Turnbull was brief. The prosecution also relied on surrounding circumstances, including Camelo's hired van near the bank and, minutes later, Turnbull emerging beside bushes where housebreaking implements were found.

Issue and decision. The Court of Appeal examined the identification with the surrounding evidence instead of treating the officer's confidence as sufficient by itself. The other evidence was capable of supporting the identification and participation; the appeals were dismissed.

Use in a problem. A short sighting demands careful assessment, but it does not require automatic withdrawal where genuinely supporting circumstances make the whole case fit for the jury. Conversely, the result does not establish that an officer's recognition is always good-quality evidence. , [1976] 3 All ER 549, 554–557.

Case law: Roberts — difficult observation without adequate support

Facts. Roberts' appeal, heard with Turnbull, concerned a violent incident in a dark dance hall with flashing lights. The identification depended on difficult, brief observation, a considerable delay before identification and discrepancies in appearance evidence. There was no adequate independent evidence supporting the correctness of the identification.

Issue and decision. The Court allowed the appeal. The weaknesses could not be cured simply by leaving the jury to choose whether to believe the witnesses; the case illustrated the danger of poor-quality identification without supporting evidence.

Use in a problem. Compare the evidence supporting identity, not merely the number or confidence of witnesses. Add a genuine independent link and the sufficiency decision may change; add another repetition of the same weak selection and it may not. , [1976] 3 All ER 549, 557–558.

Make the challenge at the useful stage

Raise a section 78 objection before the prosecution uses the disputed evidence where practicable, identifying the alleged breach, records, prejudice and requested ruling. If evidence is excluded, the court must assess what remains; exclusion of one item does not automatically end a case supported by other admissible evidence. If it is admitted, preserve the ruling and continue the distinct quality, sufficiency and weight analysis. PACE section 78; , paragraphs 23–30.

A asks the court to stop the prosecution case because the evidence cannot properly support conviction. It is normally made after the prosecution has presented its case. In identification cases, apply Turnbull's poor-quality/support rule within that trial-stage assessment. Do not wait until final speeches to identify a case which should not be left to the jury. The general test and sequence are developed in the trial chapter; here the decisive question is whether the admitted identification and genuinely supporting evidence provide a sufficient case.

Where the case is left to the jury, ask for the tailored Turnbull warning and any necessary explanation of a Code D breach. They serve different purposes and may both be needed. The first explains the risk of honest mistake in the observation and identification; the second explains what safeguard was lost and its possible effect. Neither direction should tell the jury to punish the police or presume that a breach proves mistaken identity. , paragraph 27; , 552–554.

In a magistrates' court there is no jury summing-up, but the magistrates or District Judge must still apply the relevant caution, examine quality and support, and decide whether the prosecution has proved identity to the criminal standard. Structure defence submissions around the first description, observation, chronology, contamination, independent support and the precise remedy. The absence of a jury does not make weak identification self-proving.

To convict, the fact-finder must be sure that the prosecution has proved the defendant's guilt. This criminal standard of proof is not satisfied merely because one person has been selected or because the evidence was admitted. Crown Court Compendium, Part I, section 15-1.

Finally, weight remains a live issue even after an admissibility ruling and an unsuccessful no-case submission. Admission means the evidence may be considered; sufficiency means the case may proceed. Neither ruling determines guilt. Cross-examination and submissions should explain why the actual observation or selection should, or should not, persuade the fact-finder. Preserve these distinctions when moving from identification teaching to the chapters on evidence and trial procedure.

The fair video procedure and the poor original view

A witness saw a hooded attacker for two seconds under a flickering streetlight, gave a materially different first description and later selected the defendant after seeing a named social-media photograph. The video procedure itself was orderly. Its compliance does not remove the weak observation or previous cue. The defence should identify any section 78 fairness issue and examine whether the admitted case has evidence genuinely supporting identity before relying only on a jury warning.

Change one fact: an independently proved, case-specific link connects the defendant with an item uniquely used by the attacker, and the innocent explanation has been properly examined. That may provide supporting evidence sufficient to leave an otherwise poor identification to the jury with the required warnings. A generic dark jacket owned by many people would not necessarily perform the same function. The strength of the link must be explained, not assumed.

Trial control

Start: what happened under Code D? Identify the requirement, departure and lost safeguard.

Admission decision — judge or magistrates: apply PACE sections 67 and 78.

- Evidence excluded: assess the remaining prosecution evidence; exclusion is not automatically acquittal.

- Evidence admitted: assess the quality of the identification and the evidence capable of supporting it.

- Good quality: the case may be left to the fact-finder without separate support, with the necessary warning.

- Poor quality with genuine support: consider the combined case; explain the support and weaknesses in the directions.

- Poor quality without adequate support: withdraw the case or uphold the identification-based no-case submission.

If the case proceeds: tailored Turnbull warning + any breach-specific explanation → fact-finder assesses weight and whether guilt is proved. A warning does not manufacture evidential support.

A failure on one route does not eliminate the need to consider the others. Authorities: PACE section 78; ; ; Code D.

Put this reading into practice

Flashcards

For this reading page

Knowledge check

Apply this reading