Acquittal at Aylesbury Crown Court – Andy Rootsey successfully challenges Identification Evidence in GBH Trial

The case turned entirely on identification evidence, after PP was identified by the complainant at a VIPER video identification parade, as being his assailant and causing him serious injury.

Following his arrest, PP had denied being responsible for the attack. In preparing the case, it was necessary for Andy to scrutinise the evidence pertaining to the records held in respect of the identification procedures.  Andy also attended the Police Station and examined the parade and the recorded viewing procedures.

Having viewed the material, Andy concluded that the identification evidence was unreliable and had been improperly obtained. It appeared that a serious breach of Code D of Pace 1984 had taken place and that an application should be made before the Trial Judge to exclude the identification evidence, pursuant to S78 Police and Criminal Evidence Act 1984.

Andy identified the following factors in reaching this conclusion:

• Duration – Andy identified that at the time of the assault the complainant had only observed his assailant for a short period of time
• Delay – Code D of PACE is clear that when an identification procedure is required, in the interest of fairness to suspects and eye-witnesses, it must be held as soon as practicable. In this case the Identification parade did not take until 15 months after the event.
• General appearance of participants – it became clear that the majority of the other participants on the parade appeared more mature in age than PP, thereby creating unfairness in the procedure.
• Discrepancies – were identified between the descriptions of the suspect, provided at the time of the incident and in subsequent witness statements made by the complainant.
• Inconsistent – The contemporaneous viewing notes made by the identification officer at the time of the identification were not consistent with the replies made by the complainant on the video recording.
• Language problems -Andy identified that an interpreter should have been present to assist the complainant during the viewing procedure and that there were clear language problems in communication during the process.
• leading questions by the identification officer – as a result of the language problems it appeared that the identification officer had inadvertently led the complainant at a crucial stage in the Identification procedure , thereby tainting the identification.
• Dubious Positive Identification – It became apparent that the “positive” identification was by no means an emphatic identification.

As a result, Andy instructed Trial Counsel, Luna Spada of Mountford Chambers to submit a skeleton argument containing the submissions, inviting the Court to exclude the identification evidence pursuant to S78 PACE 1984.

Upon receipt of the written submissions the Trial Judge invited the Prosecution to review the case against PP, prior to oral submissions being made.

The prosecution would return to Court today, having considered the submissions, and offered no evidence against our client.

A Not Guilty verdict was therefore formally entered against our client, and he was acquitted.

Identification Evidence

The case neatly displays the importance of identification evidence and how it can play such a crucial role in criminal proceedings.

Identification evidence often, as in this case, forms the foundation of the prosecution’s case against a defendant. However, the reliability of such evidence can be contentious, and the courts in the UK are cautious about its use.

This article explores the importance of identification evidence, its potential pitfalls, and the legal framework for its exclusion under Section 78 PACE.

Under Section 78 of the Police and Criminal Evidence Act 1984 (PACE), judges in the Crown Court have the discretion to exclude unfair obtained evidence. The section makes it clear that:  

‘In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all of the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.’

The Importance of Identification Evidence

Identification evidence is any evidence that links a defendant to the scene of a crime or establishes their involvement in it. Common forms include Identification parades, eyewitness testimony, CCTV footage, and facial recognition technology. Such evidence can be highly persuasive, as juries often view a positive identification as compelling proof of guilt.

However, its importance must be balanced against its potential for error. Studies have consistently shown that eyewitness misidentification is one of the leading causes of wrongful convictions. Factors such as poor lighting, stress, the passage of time, and cross-racial identification can all impair the reliability of an eyewitness. Consequently, the courts must carefully scrutinize identification evidence to ensure its reliability and fairness.

Judicial Caution and Safeguards

Given the potential for error, the courts have established safeguards to minimize the risk of wrongful convictions arising from unreliable identification evidence. The leading case of R v Turnbull (1977) provides guidance on the assessment of such evidence. In cases where identification is disputed, judges must give the jury a clear warning about the special need for caution. The Turnbull guidelines require judges to direct the jury to consider factors such as:

1. The quality of the observation conditions (e.g., obstructions, distance, lighting, and duration).
2. The witnesses opportunity to observe the suspect and how long for.
3. Any discrepancies between the witnesses description and the appearance of the defendant.
4. The witnesses level of certainty at the time of identification.

These safeguards aim to prevent over-reliance on identification evidence and to remind jurors of its potential fallibility.

Exclusion of Identification Evidence Under Section 78 PACE

Section 78 PACE provides a mechanism for the exclusion of evidence that would render a trial unfair. The provision states:

In any proceedings, the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.

When it comes to identification evidence, Section 78 can be invoked in several scenarios:

Breaches of the Code of Practice (PACE Code D):

Code D of PACE outlines the procedures for obtaining identification evidence, such as holding formal identification parades, video identification, or group identification. If the police fail to follow these procedures, the reliability of the evidence may be called into question. For example:

• If an identification parade is conducted in a biased manner, such as including individuals who do not resemble the suspect, the evidence may be excluded.
• A failure to document the process or provide adequate safeguards for the suspect can also render the identification evidence unreliable.

Improper Conduct by Police:

If the identification evidence is obtained through coercion, suggestion, or other improper methods, it may be excluded under Section 78. For instance:

If a police officer suggests to a witness that a particular individual is the suspect, this can taint the identification process.

Any evidence obtained in a way that undermines the integrity of the proceedings can be challenged.

Poor Quality or Dubious Reliability:

Even where procedural breaches are absent, the judge may exclude identification evidence if its quality is so poor that admitting it would risk an unfair trial. This aligns with the principles established in Turnbull, where poor-quality identifications can create a substantial risk of wrongful conviction.

Balancing Fairness and Public Interest

The exclusion of identification evidence under Section 78 requires careful judicial balancing. On one hand, the courts must ensure that the defendants right to a fair trial is protected. On the other hand, there is a public interest in allowing reliable evidence to be presented to secure convictions against the guilty.

Judges must assess the probative value of the evidence against its potential prejudicial effect. If the identification evidence is central to the prosecution’s case but is deemed unreliable or unfairly obtained, its exclusion may be necessary to uphold the integrity of the trial process.

Conclusion

Identification evidence is a double-edged sword in criminal trials. While it can be a powerful tool for securing convictions, its inherent risks necessitate rigorous safeguards to ensure fairness.

Section 78 PACE provides an essential mechanism for excluding unreliable or improperly obtained identification evidence, reinforcing the principle that fairness must always be at the heart of the justice system. By adhering to established guidelines and maintaining judicial vigilance, the courts can strike a balance between protecting the rights of the accused and safeguarding the public interest.