Criminal Appeal Case Summaries and Judgments/1989/R v Constantinou –  Lexis Citation 3171
R v Constantinou
91 Cr App Rep 74, Lexis UK CD 59
 Lexis Citation 3172
COURT OF APPEAL (CRIMINAL DIVISION)
O’CONNER, LJ, BOREHAM, McNEILL JJ
14 APRIL 1989
14 APRIL 1989
This judgment has been summarised by LexisNexis UK editors.
J Ornstin for the Appellant
M Birnbaum for the Crown
Registrar of Criminal Appeals; Crown Prosecution Service
Criminal evidence – Identity – Photofit picture – Admissibility – Whether judge ought to have admitted photofit – Whether Turnball direction ought to have been given.
M was getting into his car, having collected a substantial sum of money from a bank, when he was robbed. A thumbprint of the appellant was found on the car. M made a photofit picture of the robber from his recollection. The appellant was arrested. There was a confrontation between the appellant and M, at which M identified the appellant as the robber. The appellant and his brother were charged with robbery. The trial judge ruled that the identification evidence based on the confrontation was inadmissible, but that the photofit was admissible. The appellant was convicted. He appealed on the ground that: (i) the judge was wrong in law and exercised his discretion in a way that he should not have done in allowing the jury to see the photofit and (ii) the judge ought to have given some kind of Turnbull (R v Turnbull  3 All ER 549) warning about the photofit.
Held: According to established case law, photofit pictures, together with photographs and sketches, were in a class of their own, to which neither the rule of hearsay nor the rule against the admission of an earlier consistent statement applied. In the instant case, the judge was correct in law to admit the photofit and there were no possible grounds for saying that he was wrong to fail to exercise his discretion to exclude the photofit. In his summing-up, the judge gave a correct direction as to how the photofit was to be used by the jury. Further, it was unnecessary to give a Turnbull warning since the judge had stated in his summing-up the conditions under which M had seen the appellant. Accordingly, the appeal would be dismissed.