Photographs, Video Recordings and Films
Blackstone’s Criminal Practice 2017/Part F Evidence/Section F8 Documentary Evidence and Real Evidence/Real Evidence/Photographs, Video Recordings and Films
Photographs, Video Recordings and Films
A photograph may be admitted in evidence to enable a witness to identify a person or thing. In Tolson (1864) 4 F & F 103, a case of bigamy, a photograph was produced, which was admitted to be a photograph of the first husband, and a witness was allowed to testify that he had seen the man in the photograph alive after the date of the allegedly bigamous marriage.
A photograph (or film) the relevance of which can be established by the testimony of someone with personal knowledge of the circumstances in which it was taken (or made), may also be admitted to prove the commission of an offence and the identity of the offender. As to the identity of the offender, use may also be made of facial mapping experts (Atkins  1 Cr App R 117, considered at F11.11). In Dodson  1 WLR 971, it was held that photographs taken at half-second intervals by security cameras installed at a building society office at which an armed robbery had been attempted, were admissible, on the issue of whether an offence had been committed and, if so, who had committed it, even though no witnesses were called to identify the men in the photographs. However, in a case in which the jury is invited to ‘identify’ the accused in court from a photograph or video recording of the offender committing the offence, they should be warned of the risk of mistaken identity and of the need to exercise particular care in any identification which they make. They must take into account whether the appearance of the accused has changed since the visual recording was made, but a full Turnbull direction (Turnbull  QB 224: see F19.9) is inappropriate because the process of identifying a person from a photograph is a commonplace event and some things are obvious from the photograph itself. Thus they do not need to be told that the photograph is of good quality or poor, nor whether the person is shown in close-up or was distant from the camera etc. (Blenkinsop  1 Cr App R 7, approving Downey  1 Cr App R 547; cf. Taylor v Chief Constable of Cheshire  1 All ER 225, at F8.62). However, it seems that a request by them that the accused stand up and turn around, in order that they may be given a better view of him, does not have to be met, at least not by an accused who has elected not to testify (McNamara  Crim LR 750).
In Roberts  Crim LR 682, a police constable made a written statement relating to charges of assault and affray. A video camera had recorded the events in question and the constable later provided a commentary on the video to enable prosecuting counsel to explain to the jury, when viewing it, who was who and where the events took place. The video was then made available to the defence. It was held that it was not wrong in principle that the constable had seen the video. On seeing a video a witness might find that in some respects his recollection had been at fault and might wish to modify earlier evidence. However, nothing should be done which amounted to rehearsing the evidence of a witness or coaching him so as to encourage him to alter the evidence already given. The acid test was whether the procedure adopted was such as to taint the resulting evidence. That was not so in the instant case. The video had been made available to the defence and had been shown to defence witnesses before they gave their evidence, and the constable had been directly challenged on discrepancies between his first statement and his commentary.
In Thomas  Crim LR 682, a case of reckless driving, a video recording of the route taken by the accused was admitted to remove the need for maps and still photographs, and to convey a more accurate picture of the roads in question. In The Statue of Liberty  2 All ER 195, a civil action concerning a collision between two ships, Sir Jocelyn Simon P, rejecting a submission that a cinematograph film of radar echoes, recorded by a shore radar station, was inadmissible because produced mechanically without human intervention, said (at p. 740): ‘If tape recordings are admissible, it seems that a photograph of radar reception is equally admissible — or indeed, any other type of photograph. It would be an absurd distinction that a photograph should be admissible if the camera were operated manually by a photographer, but not if it were operated by a trip or clock mechanism.’ Compare Wood (1982) 76 Cr App R 23, at F16.12.
In the case of visual recordings of interviews, see also PACE Code F (see D1.90).
Admissibility as Hearsay or Real Evidence Photographs and films are excluded from the definition of a ‘statement’ for the purposes of the provisions relating to hearsay in the CJA 2003 (see s. 115(2) at F16.7) but both would appear to be admissible at common law as a variety of real evidence (see The Statue of Liberty  2 All ER 195, where a film, in effect, contained a statement as to the paths taken by the two ships). Moreover, it has been said that a photograph, together with the sketch and the photofit, is in a class of evidence of its own, to which neither the rule against hearsay nor the rule against previous consistent or self-serving statements applies (Cook  QB 417 per Watkins LJ; applied in Constantinou (1989) 91 Cr App R 74). However, representations made in a sketch or photofit are covered by the definition of ‘statement’ in the CJA 2003, s. 115(2). As to evidence of previous identification of the accused by police photographs, see further at F19.
Proof of Contents The contents of photographs and films on which a party seeks to rely may be proved by production of the original; or by production of a copy proved to be an authentic copy; or by the parol evidence of witnesses who have seen the photograph or film. In Kajala v Noble (1982) 75 Cr App R 149 Ackner LJ held that the rule, that if an original document is available in a party’s hands he must produce it and cannot give secondary evidence of it, was confined to written documents in the strict sense of the term and has no relevance to tapes or films. In Taylor v Chief Constable of Cheshire  1 All ER 225, a video cassette recording, made by a security camera and showing a person in a shop picking up an item and putting it into his jacket, was played to police officers who identified the person as Taylor. The recording, after it had been returned to the shop, was accidentally erased. Evidence by the officers of what they had seen on the video was held to have been properly admitted, on the ground that what they had seen on the video was no different in principle from the evidence of a bystander who had actually witnessed the incident, and the appeal against conviction was dismissed. The Court of Appeal held that the weight and reliability of the evidence had to be assessed carefully and, because identification was in issue, by reference to the guidelines laid down in Turnbull  QB 224, which had to be applied in relation to not only the camera, but also the visual display unit or recorded copy and the officers. See also Constantinou (1989) 91 Cr App R 74.
Jury Access Where a video or film has been shown in court and the jury, after retirement, ask to see it again, they may do so, but it is better if they see it again in open court (Imran  Crim LR 754, in which the jury had seen a silent video of an attempted robbery). Cf. Rawlings  1 All ER 580 (video recordings of children’s evidence), which is considered at D14.35.
PACE Code on Video-recording Interviews For the procedures to be followed on video- recording interviews with suspects, see PACE Code F.