Photograph and Video Evidence in Court

Criminal Law and Justice Weekly (formerly Justice of the Peace)/2002/Issue 25, June/Articles/Photograph and Video Evidence in Court – (2002) 166 JPN 488

 

Justice of the Peace

Since 1837 The Journal Dedicated to Magisterial and Local Government Law

(2002) 166 JPN 488 

22 June 2002

 

Photograph and Video Evidence in Court

This Week

Article

Alec Samuels

© Reed Elsevier (UK) Ltd 2002

 

The photograph and the video represent powerful visual evidence. Visual evidence is generally more compelling than any other form of evidence. The photograph and the video is frequently proffered or given in evidence. However, there can be technical and legal problems.

 

Proof of Accuracy

 

The normal way to prove the authenticity and accuracy of a photograph is to call the person who actually took the photograph, and if necessary to require him to produce the negatives from which the photograph was taken: Hindson v. Ashby [1896] 2 Ch. 1, 21, CA; US Shipping Board v. The St Albans [1931] AC 632, 641-642. The taker may be required to prove the time when and the place where the photograph was taken.

In a sense, a photograph (or more accurately a print) or a video is hearsay but the courts have accepted the evidence “at face value”, as evidence of a crime and of who did it, subject to challenge on the basis of weight and probative value set against prejudicial value: R. v. Dodson (1984) 79 Cr. App. R 220, 228-229. For example, CCTV pictures are often very poor indeed, and satisfactory identification may be very difficult to prove. The Turnbull direction or warning may well be appropriate: R. v. Dodson (1979) 79 Cr. App. R 220, 228-229; Taylor v. Chief Constable of Cheshire [1986] 1 WLR 1479, DC; R. v. Clare (1995) 2 Cr. App. R 333; R. v. Downey (1995) 1 Cr. App. R 547, 553- 556; R. v. Blenkinsop (1995) 1 Cr. App. R 7, 11-12. D may have changed or tried to change his appearance and the jury must use their judgment in comparing D with the person in the photograph or video: Donnelly v. HM Advocate 2000 SCCR 861.

 

Identification

 

A photograph of X may be put to a witness for the purpose of enabling the witness to identify X, if he can. “Yes, that was the man I saw on that occasion” or “No, that’s not the man I saw”: R. v. Tolson (1864) 4 F and F 103; 176 ER 488; R. v. Cook [1987] QB 417, 424, CA; R. v. Clare (1995) Cr. App. R 333 (very clear and very useful judgment by Lord Taylor CJ); R. v. Fowden [1982] Crim. LR 588. However, the evidence could be more prejudicial than probative, eg, the witness knew of the criminal record of the suspect: R. v. Grimer [1982] Crim. LR 674. This practice was used extensively in divorce cases, and in paternity cases: C v. C [1972] 1 WLR 1335; [1972] 3 All ER 577. The advent of DNA has enabled the courts largely to dispense with “resemblance” evidence in many cases.

Photographs may be shown to a witness by the police Code D para.D4. Strictly speaking, following identification of a suspect an identification parade should be held: Code D, Annex D, para.D5. The police photographs should not be shown to the jury: R. v. Lamb (1980) 71 Cr. App. R 198.

D refused to go on an identification parade. So the police videoed D walking along handcuffed to a police officer; and then repeated the action with a number of different persons. The video was admissible: R. v. Kennedy 2296/Y4/90 March 20, 1992, CA.

In view of the difficulty that the police have nowadays in assembling an identity parade, and of persons not too unlike the suspect, the modern practice is increasingly to show the witness a series of photographs, “mugshots”, and use this method for identification. If the defence require, the mugshots must be produced to the jury, so that the jury can see for themselves the comparisons and resemblances, such as they might be. Better still, the identification process, the witness picking out a photograph of D, should be videoed and shown to the jury.

The risk of prejudice can arise where the subject is known to the witness as having a criminal record, having previously seen the photograph in that context, and the suspect is picked out by way of recognition as a convicted criminal and not by way of involvement in the crime in issue; or by being shown only one photograph, that of the suspect; or the photographs of the non-suspects reveal them to be totally different in appearance from the suspect.

In the past the police have often used a series of criminal mugshots in order to identify a suspect, and have then put the suspect on an identification parade. The problem has been that the witness may have thought that all the photographs were of criminals, including the one he picked out, and then have “recognized” the same person on the identification parade. If the jury get to know what has happened they may think that the suspect, the accused, has a criminal record, and the trial can be prejudiced: R. v. Lamb (1980) 71 Cr. App. R 198; R. v. Bleakley [1993] Crim. LR 203, CA; R. v. Campbell [1994] Crim. LR 357.

A photograph of a suspect taken during the commission of an offence is naturally admissible: R. v. Cook [1987] QB 417; (1987) 84 Cr. App. R 369, CA; R. v. Dodson (1984) 79 Cr. App. R 220. An authenticated copy of a video of a public disturbance is admissible: Kajala v. Noble (1982) 75 Cr. App. R 149, DC.

Evidence can be excluded by the Judge if the admission would have an adverse effect on the fairness of the proceedings: Police and Criminal Evidence Act 1984, s.78.

Whilst in the precincts of the court D was secretly videoed by the police and the video was produced in evidence by the prosecution as evidence of identification, ie, the same person as was seen on a CCTV video made at the scene of the crime. It was held that the videoing in the courthouse was unlawful Criminal Justice Act 1925, s.41(1), and the right of privacy was infringed art.8, but that nonetheless the evidence was admissible as it did not prevent a fair trial: R. v. Loveridge (2001) 2 Cr. App. R 591.

 

Reconstruction

 

Photographs of a “reconstruction” after the event are generally inadmissible: R. v. Quinn [1962] 2 QB 245. However, a photograph of the locus in quo may be admissible if the locus in quo can be proved to be in the same state or condition as it was at the time of the crime. Similarly, a photograph or video of D taken subsequent to the alleged offence may be admissible subject to safeguards: R. v. Jones (1994) 158 JP 293, 304, CA. Is that the same man or a different man?

 

Corroboration

 

Corroboration is not required as a matter of law. D can be convicted on the photograph or video alone. However, a much stronger case can be made by the prosecution if a witness can describe what happened from direct personal experience, and then be corroborated by the photograph, proved if necessary stage by stage from the taking to the print.

 

The Camera Never Lies?

 

Brushing out

 

Such is the skill of those expert in photography and its associated processes that “brushing out” is all too easy, and what has happened cannot be detected from looking at the photograph. The Soviets were very prone to brushing out comrades who had subsequently been murdered, so that it really looks as if X was not in the photograph, whereas in fact he had been in the original. Conversely, a photograph can be “doctored” by adding something, eg, an advertiser’s product can be added to a celebrity: Irvine v. Talksport (2002) The Times, March 26, 2002.

 

Reverse

 

A negative can be developed “the other way round”, so that a photograph of a man using his right hand can be made to show a man using his left hand. Examination of the negative, preferably through an epidiascope, taking in the lettering and numbering, will reveal what has happened. It is possible, however, that the photograph itself will reveal what has happened, eg, shirt buttons done up the wrong way, or the background unmistakably wrong.

 

Digital

 

Such is the speed of the advance of technology that we now have digital photography, which has eliminated the negative stage. The camera is pointed at the subject, operated, and the photograph comes out the other end. The camera makes some sort of electronic record which is transmitted away. The cameraman does not know what has happened to the image he took. Furthermore, a team of people, not just one identifiable individual, may be involved in the entire operation.

 

Colour

 

Colour photographs are often a joy to behold, beautiful creations. However, the colour may be unreal, untrue, or misleading. A colour photograph of a victim or a patient may be seriously divorced from reality, when the true colour could be a critical factor in medical terms, ie, an indication of a medical condition, eg, bruising. However, colour is not static, it changes with light, so comparisons are likely to be useful, eg, comparisons between traditional photographs and digital photographs of the same subject at the same time.

 

Focus limitation

 

The camera focuses on a point, near, middle or far. Everything else will to a greater extent be out of focus, and blurred.

 

Eye-level

 

In the nature of things we mostly see things from the point of eye-level. That is our life perspective. For the purposes of litigation the photographer may take photographs from ground level, or from the top of a building, or some other angle, and the resultant photographs may present an unusual, even misleading, perspective and image. The court needs to be satisfied upon the exact location from which the picture was taken.

 

Printout from computer

 

D is charged with making an indecent photograph of a child: R. v. Smethurst (2002) 1 Cr. App. R 6. The allegation may be that he put them on to the Internet, or that he downloaded them from his computer. In producing the printouts the prosecution will need to prove who took the printouts and to trace them back stage by stage to D.

 

Civil Proceedings

 

A photograph is a document for the purposes of civil proceedings: Birch v. Hales Containers (1996) PIQR 307, 308, CA.

In civil proceedings the normal practice is for a 21-day notice to be given of the intention to rely upon a photograph Civil Procedure Rules CPR 33.6 or for the photograph to be included in an expert’s report. The other side then has the opportunity to inspect. Hopefully it may be possible to agree upon an admission of facts or admissibility 33.18. A photograph forming part of the business or public authority records “proves itself” on certification, although it may be challenged for accuracy: Civil Evidence Act 1995 s.9.

Only in very rare circumstances will pre-trial disclosure not be ordered: Khan v. Armaguard [1994] 3 All ER 545, CA. Evidence in the possession of the defendant of a malingering claimant should be disclosed: McGuinness v. Kellogg Company of Great Britain [1988] 2 All ER 902, [1988] 1 WLR 913; Digby v. Essex CC (1993) 15 BMLR 34, CA; Birch v. Hales Containers (1996) PIQR 307, CA; Senior v. Holdsworth [1976] QB 23, [1975] 2 All ER 1009, CA. However, the Judge will not allow the disclosure principle to be abused or to become oppressive, eg, demanding thousands of photographs and miles of film in the possession of the television companies.

The court may make an interim order for the detention, custody or preservation of relevant material, eg, a photograph: CPR 25.1.

A photograph may be of considerable value in a dispute over land or boundaries or highways or rights of way: Highways Act 1980, s.32.

 

Apparatus at Court

 

If there is to be a dispute over a photograph or video in court then the appropriate apparatus will be required: a projector and large screen viewer of 35m negative strips, unmounted film; a digital convertor; a projector for 6×6 cms and other formats; 35m colour transparency projector, for comparison with digital colour prints.

The author is grateful to John Garfield, expert photographer, for technical discussion. See his article “The Eye and the Camera and the Brain” (2002) 69 Medico-Legal Journal.

 

 

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