Journal of Criminal Law/2016, Volume 80/Issue 4, August/Case Notes/Court of Appeal: The Admissibility of Identification Evidence Made on the Basis of Recognition from Photographs Taken at a Crime Scene R v Doherty  EWCA Crim 246 – JCL 80 (234)
Journal of Criminal Law
JCL 80 (234)
1 August 2016
Court of Appeal: The Admissibility of Identification Evidence Made on the Basis of Recognition from Photographs Taken at a Crime Scene
R v Doherty  EWCA Crim 246
¬© The Author(s)
Keywords: ID evidence, recognition, Turnbull guidelines, photographs, police officers
The appellant (D) was charged with three domestic burglaries, each of which took place in early December 2014. In each case entry to a domestic residence was gained by smashing glass in the rear doors of the property and at each burglary, jewellery and other valuable items were stolen. The third property to be burgled had an exterior CCTV camera, from which photographs of two burglars arriving at and subsequently leaving the premises were obtained.
On the 15 December police searched a house in Peterborough where they discovered stolen property from one of the burglaries. On 22 December 2014, while examining the still photographs taken from the CCTV footage of the third burglary, PC Cummings, a member of the Prolific Offenders Team, recognised the two burglars as D and another man, C. The following day police again searched the house in Peterborough, which they had previously searched on 15 December. On this occasion D and the homeowner Y were present at the house, where police again found stolen property from the burglaries. D was shown a bracelet from one of the burglaries which he claimed to have bought. D was subsequently arrested and charged.
At trial the prosecution sought to rely upon the evidence of the identification made by PC Cummings and D’s previous convictions for burglaries committed in a similar way. D challenged the admissibility of PC Cummings’ identification evidence on the voir dire, arguing that the pictures from which PC Cummings purported to recognise D were of insufficient quality to make a positive identification. Having heard evidence from PC Cummings including under cross-examination, the judge decided that the ‘photographs were of sufficient quality to go before the jury so that the jury could decide whether they accepted the recognition evidence given by the officer’ (at ). The trial judge also permitted evidence relating to D’s previous convictions to be adduced.
D was convicted on two of the three counts of burglary and appealed on two grounds, the first being that the judge was wrong to admit the evidence of recognition on the basis that the photographic images
were of insufficient quality to permit an identification to be made. If the first ground was established then the second ground of D’s appeal was that the evidence of his bad character would then have been used to bolster a weak case and should therefore not have been admitted.
HELD, dismissing the appeal, the judge properly admitted the evidence of recognition and thereafter gave a ‘very fair’ summing up, in particular containing ‘appropriate warnings’ about the dangers of identification and recognition evidence (at ). On the second ground of appeal the court’s decision that the recognition evidence was properly admitted meant that ‘this was certainly not a case of bad character evidence going in to bolster a weak case’ (at ).
The present case provides a useful opportunity to consider the admissibility of recognition evidence in the form of identifications made from photographs taken from a crime scene. The Court of Appeal in Attorney General’s Reference No.2 of 2002  EWCA Crim 2373 identified that, subject to the judge’s discretion to exclude prosecution evidence under s.78 Police and Criminal Evidence Act (PACE) 1984, a jury could rely on a photographic image or images taken from a crime scene in any of four circumstances, namely:
1. ¬† ¬† when the image is sufficiently clear that the jury can compare it with the defendant in court;
2. ¬† ¬† when a witness knows the defendant sufficiently well to recognise him as the person in the photographic image, he can give identification evidence;
3. ¬† ¬† when a witness has acquired through hours of examination of photographic images familiarity with the material, he may be permitted to make a comparison with a known and reasonably contemporary photograph of the defendant provided the evidence can be tested by the jury’s own examination of the images;
4. ¬† ¬† a facial mapping expert may make a comparison between scene of crime images and a photograph of the defendant subject to the usual safeguards concerning the evidence of an expert and the availability of the images for testing of that evidence by the jury (Att. Gens. Ref. No. 2 of 2002 at ).
In R v Moss  EWCA Crim 252 the court identified that for an identification to be made the image must be of sufficient quality but that ‘ … in many cases it will be for the jury to decide whether, having heard all the evidence, they are satisfied that the recognition is reliable’ (Moss at ).
The present case involves a situation comparable with the second circumstance listed above and specifically the relatively common situation where a police officer purports to identify an individual whom they had previously dealt with. In the present case the officer in question, PC Cummings, testified that he had encountered D on ‘dozens of occasions’ due to D’s status as a ‘red offender’ (at ). Where a positive identification is made from an image, it must be made in compliance with the requirements of Code of Practice D of PACE 1984, including inter alia the requirement of Code D para. 3.36 that a record is made of the circumstances and conditions under which the person is given an opportunity to recognise the individual. Para. 3.36 also contains a list of what the record must include:
a. ¬† ¬† Whether the person knew or was given information concerning the name or identity of any suspect.
b. ¬† ¬† What the person has been told before the viewing about the offence, the person(s) depicted in the images or the offender and by whom.
c. ¬† ¬† How and by whom the witness was asked to view the image or look at the individual.
d. ¬† ¬† Whether the viewing was alone or with others and if with others, the reason for it.
e. ¬† ¬† The arrangements under which the person viewed the film or saw the individual and by whom those arrangements were made.
f. ¬† ¬† Whether the viewing of any images was arranged as part of a mass circulation to police and the public or for selected persons.
g. ¬† ¬† The date, time and place images were viewed or further viewed or the individual was seen.
h. ¬† ¬† The times between which the individual was viewed or the individual was seen.
i. ¬† ¬† How the viewing of images or sighting of the individual was controlled and by whom.
j. ¬† ¬† Whether the person was familiar with the location shown in any images or the place where they saw the individual and if so, why.
k. ¬† ¬† Whether or not on this occasion, the person claims to recognise any image shown, or any individual seen, as being someone known to them, and if they do:
1. ¬† ¬† The reason.
2. ¬† ¬† The words of recognition.
3. ¬† ¬† Any expressions of doubt.
4. ¬† ¬† What features of the image or the individual triggered the recognition.
In R v Spencer  EWCA Crim 933 the judge acknowledged ‘an ever increasing problem’ that, due to the amount of CCTV footage available to police during investigations, an officer scanning footage may well recognise a suspect. The court in Spencer determined that ‘[t]he mischief at which the Code of Practice was directed was the mere assertion the police officer recognised a subject without any objective means of testing the accuracy of the assertion’ (at ). Applying Moss (above), that court determined that Code of Practice D does not require a ‘slavish adherence to procedure but evidence that enables the jury to assess the reliability of the evidence of recognition however it is provided’ (Moss at ).
A similar approach was adopted in R v Lariba and others  EWCA Crim 478, where recognition evidence given by a police officer was admissible on the basis that a ‘virtually contemporaneous record was made of the circumstances of [the officer’s] informal viewing’ (at ), the officer was thoroughly cross-examined, the images were available to the jury and there was evidence capable of supporting the recognition evidence. In the present case, no mention is made of any contemporaneous record or witness statement made by PC Cummings. However, the admission by the trial judge of PC Cummings’ recognition of D was justified by the court on a similar basis, i.e. the thorough cross-examination of PC Cummings, the availability of the images for consideration by the jury and the availability of supporting evidence. It is submitted that, given the apparent frequency by which police officers appear make identifications from crime scene images and the willingness of the courts to admit such evidence, PACE 1984 Code of Practice D should be amended to reflect current police practice.