Learning Outcomes
After reading this article, you will be able to explain the legal risks of visual identification evidence, outline the Turnbull guidelines and when a Turnbull direction is required, describe the main Code D identification procedures, and identify when identification evidence may be excluded under PACE 1984. You will also be able to apply these principles to SQE1-style scenarios and advise on the strengths and weaknesses of identification evidence.
SQE1 Syllabus
For SQE1, you are required to understand the principles and procedures for admitting and excluding evidence, with a focus on visual identification evidence. In your revision, pay particular attention to:
- the dangers of mistaken identification and the need for judicial safeguards
- the Turnbull guidelines and when a Turnbull direction must be given
- the requirements of Code D for police identification procedures (video identification, identification parade, group identification, confrontation)
- the grounds for excluding identification evidence under PACE 1984, especially s78
- the importance of supporting evidence and the consequences of procedural breaches
Test Your Knowledge
Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.
- What are the main factors a judge must direct the jury to consider under the Turnbull guidelines when a case depends on visual identification evidence?
- Name the four main types of identification procedure under Code D of PACE 1984.
- In what circumstances may a court exclude identification evidence under s78 PACE 1984?
- What is the difference between recognition evidence and identification of a stranger, and how does this affect the Turnbull warning?
Introduction
Visual identification evidence—where a witness claims to identify a suspect as the perpetrator of an offence—is a common feature in criminal trials. However, such evidence is inherently unreliable and has led to miscarriages of justice. The law imposes strict procedures and judicial safeguards to reduce the risk of wrongful conviction based on mistaken identification.
The Dangers of Visual Identification Evidence
Mistaken identification is a leading cause of wrongful convictions. Human memory and perception are easily distorted by stress, poor conditions, and the passage of time. Even honest witnesses can be mistaken.
Key Term: visual identification evidence Evidence where a witness claims to identify the defendant as the perpetrator of an offence based on their observation at the scene.
Police Identification Procedures: Code D
To improve reliability, the police must follow strict procedures under Code D of PACE 1984 when arranging identification procedures. These include:
- Video identification: The witness views a video of the suspect and at least eight others of similar appearance.
- Identification parade: The suspect stands in a line with at least eight others of similar appearance.
- Group identification: The witness observes the suspect in a group in a public place.
- Confrontation: The witness is directly confronted with the suspect (used only if other procedures are impracticable).
Key Term: Code D identification procedure A formal process under PACE 1984 for testing a witness’s ability to identify a suspect, including video identification, parade, group identification, and confrontation.
Failure to comply with Code D may render the identification evidence unreliable and open to exclusion.
The Turnbull Guidelines
When a case depends wholly or substantially on visual identification evidence, the judge must follow the Turnbull guidelines (from R v Turnbull [1977] QB 224) to protect against wrongful conviction.
Key Term: Turnbull guidelines Judicial directions requiring the jury to exercise special caution before convicting on identification evidence alone, and to consider specific factors affecting reliability.
What Must the Judge Do?
The judge must:
- Warn the jury of the special need for caution before convicting on identification evidence alone.
- Explain that a mistaken witness can be convincing, and that more than one mistaken witness can be wrong.
- Direct the jury to examine closely the circumstances of the identification.
Key Factors for the Jury
The judge must direct the jury to consider:
- The length of time the witness observed the suspect.
- The distance between witness and suspect.
- The lighting and visibility.
- Whether the observation was impeded.
- Whether the witness knew the suspect or had seen them before.
- The time elapsed between the incident and the identification.
- Any discrepancies between the witness’s description and the defendant’s actual appearance.
If the identification evidence is of poor quality and unsupported, the judge should withdraw the case from the jury.
Worked Example 1.1
A witness claims to have seen the suspect for 10 seconds at night from 20 metres away, under a streetlight, and later identifies the suspect in a video identification. There is no other evidence.
Question: Should the judge allow the case to go to the jury?
Answer: The judge must assess the quality of the identification. Here, the observation was brief and at a distance, even though there was some lighting. If the judge considers the evidence poor and unsupported, they should stop the case and direct an acquittal.
Supporting Evidence
If the identification evidence is weak, the judge should look for supporting evidence (such as forensic evidence, admissions, or possession of stolen property). If there is no support, the case should not go to the jury.
Key Term: supporting evidence Independent evidence that tends to confirm the correctness of a witness’s identification.
Exclusion of Identification Evidence: PACE s78
The court has discretion under s78 PACE 1984 to exclude prosecution evidence—including identification evidence—if its admission would have such an adverse effect on the fairness of proceedings that it ought not to be admitted.
Key Term: s78 PACE 1984 A statutory provision allowing the court to exclude prosecution evidence if its admission would make the trial unfair.
A significant and substantial breach of Code D (such as failing to use a proper identification procedure) may justify exclusion under s78.
Worked Example 1.2
The police show a witness only a single photograph of the suspect, who is then identified in court. The defence objects.
Question: Can the identification evidence be excluded?
Answer: Yes. The police failed to follow Code D by not using a proper identification procedure. The defence can apply to exclude the evidence under s78 PACE 1984.
Recognition Evidence and Dock Identification
Recognition evidence (where the witness claims to recognise the defendant) is generally more reliable than identification of a stranger, but mistakes can still occur. The Turnbull warning is still required.
Key Term: recognition evidence Identification evidence where the witness claims to recognise the defendant as someone they know.
Key Term: dock identification An identification made by a witness in court, usually for the first time, when the defendant is sitting in the dock.
Exam Warning
Dock identification is highly disapproved and rarely allowed, as it is suggestive and unreliable. If a witness identifies the defendant for the first time in the dock, the judge should warn the jury of the dangers and may exclude the evidence unless there is good reason.
Multiple Witnesses and Collusion
If several witnesses identify the same person, the evidence may appear stronger. However, the judge must ensure that the witnesses have not discussed the incident or influenced each other.
Revision Tip
When revising, practise applying the Turnbull factors to different scenarios. Be able to explain when a Turnbull direction is required and when the judge should stop the case.
Summary
| Turnbull Guidelines—Key Points | Example Question for Jury |
|---|---|
| Length of observation | How long did the witness see the suspect? |
| Distance | How far away was the witness? |
| Lighting | Was it dark or well-lit? |
| Obstructions | Was the view blocked? |
| Prior knowledge | Did the witness know the suspect? |
| Time delay | How long between event and identification? |
| Description discrepancies | Are there inconsistencies? |
Key Point Checklist
This article has covered the following key knowledge points:
- Visual identification evidence is inherently unreliable and requires special caution.
- The Turnbull guidelines require the judge to warn the jury and direct them to consider specific factors.
- Code D of PACE 1984 sets out strict procedures for police identification.
- Breaches of Code D may lead to exclusion of evidence under s78 PACE 1984.
- Supporting evidence is needed if identification evidence is weak.
- Dock identification is discouraged and generally unreliable.
- Recognition evidence still requires a Turnbull warning.
Key Terms and Concepts
- visual identification evidence
- Code D identification procedure
- Turnbull guidelines
- supporting evidence
- s78 PACE 1984
- recognition evidence
- dock identification
