d. Directions on identification evidence

d. Directions on identification evidence

The Court has given a number of directions to warn against the possible danger that a witness might misidentify the defendant to be the perpetrator. These directions come from the leading case of R v Turnbull [1977] QB 224, which can be summarised as follows.

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(s). The judge should remind the jury:

• of the reason for the need for such a warning;
• that an honest but mistaken witness can be convincing;
• that a number of witnesses can all be mistaken;
• that even when the witness is purporting to recognise someone whom he knows, mistakes in recognition of close relatives and friends are sometimes made.

Provided this is done in clear terms the judge need not use any particular form of words.

The judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made. For instance:

• 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 the quality of the identification evidence is good and remains good at the close of the accused’s case, the danger of a mistaken identification is lessened. The jury can safely be left to assess the value of the identifying evidence even though there is no other evidence to support it: provided always, however, that an adequate warning has been given about the special need for caution. 

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 an observation made in difficult conditions, 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.