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Advice on evidence
This advice relates to the issue of how the eyewitness identification evidence given by Bilal against Alan is likely to be dealt with in the context of the trial. Carlos was attacked at midnight on Saturday evening, following a college dinner. Carlos did not see his attacker. Bilal witnessed the incident from across the street, and caught a brief glimpse of the face of the attacker as he ran away down King’s Parade. Bilal later identified Alan at a properly conducted identification procedure. The question here is related to the evidence that is given by Bilal and how it is likely to be dealt with at trial.
The judgment of R v Turnbull  QB 224, is relevant to understanding how the court is likely to deal with the identification evidence by Bilal. In this case, the The Turnbull decision provides that in the event the principal evidence against the accused is identification evidence that the defence alleges to be mistaken, the judge would be required to warn the jury of the special need for caution before convicting the accused in reliance on the correctness of the identification. Jury would also have to be directed to closely examine the circumstances in which the identification was made. Ultimately the quality of the identification evidence (if that is the principal evidence on which the case depends wholly or substantially) will determine whether the case will be decided by a jury. If the quality of the identifying evidence is poor, the judge should withdraw the case from the jury and direct an acquittal. The position is different if there is other evidence that goes to support the correctness of the identification.
In the Turnbull case, the identification of Turnbull was done by a detective who was ten yards away from Turnbull and saw the latter’s full face in a well-lit street and had his description circulated. After conviction, Turnbull and his colleague in the robbery appealed on the grounds that the guidance given by the judge to the jury was wrong in relation to the reliability of identification evidence. The Court of Appeal upheld the conviction, and importantly it also provided guidance to be followed by courts in cases where the defence questions the quality of the identification evidence by a witness. This guidance would be useful in the current situation with Bilal’s identification evidence as it will help assess how this evidence is likely to be dealt with at trial. More specifically, the question then to be asked is if the question raised by defence as to the quality of the identification evidence by Bilal can lead to a Turnbull warning to the jury. Turnbull warning applies in situations where the prosecution’s case depends wholly or substantially on the identification evidence provided by a witness, but the defence questions the quality of that evidence. In such case, the Turnbull decision requires that the court cautions the jury as to the points that will be discussed later.
First, to consider whether the court is likely to give Turnbull warning, it would be pertinent to assess whether in the case the prosecution is depending wholly or substantially on the identification evidence provided by Bilal. In this case, Bilal’s evidence of identification of Alan is not the only piece of evidence relevant to the prosecution’s case against Alan. Admittedly, Bilal’s identification of Alan was based on the former seeing the incident from across the street at midnight, and the glimpse itself was brief. Therefore, there is substance to the defence’s questioning the correctness of this evidence. However, there is other forensic evidence that is also relevant to the prosecution’s case. This includes a bloodstained knife, similar to those used in the college kitchens, was found near the scene and forensic expert analysis revealed that Alan’s fingerprints were found on the handle of the knife recovered near the scene while the bloodstains on the blade match the victim’s DNA profile. The question is whether this evidence can also be used to base the prosecution’s case against Alan. In English law, experts can give their evidence in areas where they have expertise and recently the R v Clarke & Morabir case did explain this point. Moreover, the court has held in R (Doughty) v Ely Magistrates' Court that expert witnesses’ evidence may have weight attached to it based on the expertise of the witnesses. Indeed, experts also have the privilege of providing the jury with their opinion evidence on matters within the scope of their knowledge and expertise as per the Law Commission. The Criminal Justice Act 1988, Section 30 also provides that evidence given by an expert witness as to fact and opinion is admissible. Finally, PACE 1984, Section 61 and Code D allows identification by fingerprints. Point 1.3 of the PACE 1984 Code of Practice provides that identification by fingerprints can apply when fingerprints are taken to compare with fingerprints found at the scene of a crime and to help to ascertain a person's identity. Therefore, at this point it can be reasonably expected that the court will consider that the expert evidence of Alan’s fingerprints on the handle of the knife as being one of the important pieces of evidence on which the prosecution’s case is based.
Alan’s prepared statement claims he was at home with his girlfriend, Emily, at the time of the attack but makes no mention of the knife found near the scene. Emily gave a full statement to the police, in which she said that Alan did not get home until well after midnight on the night in question. Emily also said Alan had threatened violence towards her on a number of occasions, and that she would be willing to give evidence against Alan at trial. However, now she refuses to give evidence at trial because she is frightened of what Alan might do to her if she gives evidence against him. The question is whether Emily’s evidence can still be produced before the court. Section 116 of the Criminal Justice Act 2003 is applicable here. It relates to circumstances in which statements made by unavailable witnesses can be received as evidence by the court if the oral evidence given in the proceedings by the person who made the statement would be admissible as evidence of that matter, the person is identified to the court’s satisfaction, and one of the conditions of Section 116, subsection (2) is satisfied. One of these conditions is contained in subsection (2)(e) which relates to the person not giving oral evidence due to fear and the court gives leave for the statement to be given in evidence. Therefore, with regard to the evidence given by Emily in a statement to the police where she has disputed Alan’s alibi that he was with her at the time when the incident took place, the court may accept admitting of this evidence even without her giving an oral statement in the court. Therefore, this is another evidence on which the prosecution may establish that Alan was lying about his alibi. However, at the same time, the court may have to caution the jury that lying about the alibi would not mean that Alan has committed the offence.
The final evidence that may be relevant is Alan’s boast to Darius, an experienced police informant that he argued with Carlos about a gambling debt, took a knife from the college kitchens, and stabbed Carlos as he walked away from the front gate of the college. This evidence is hearsay evidence which is admissible if it comes within the stated exceptions to the rule against hearsay as provided in Section 114 of the Criminal Justice Act 2003. Section 114(1) allows hearsay evidence if it falls within a common law exception preserved by Section 118. Section 118 (5) allows preservation rule of law relating to the admissibility of confessions or mixed statements in criminal proceedings. Accordingly, confessions made to a third party is admissible a provided it complies with PACE 1984, Section 76. This is to say that there should not be any coercion or oppression by which such confession is obtained.
To conclude, in the event that despite the other evidence being available, the court considers that the prosecution’s case is wholly or substantially based on the identification evidence provided by Bilal, then as per the Turnbull decision, the court is required to give a Turnbull warning to the jury. In this, the jury is to be told to examine the circumstances in which the identification was made, such as for how long the witness had the accused under observation and from what distance he saw the accused and under what light. The judge is also required to caution the jury as to the possible risk of injustice due to misidentification (given that Bilal only got a fleeting glimpse) and the fact that fact that even an honest witness may be wrong. On the other hand, if the court considers that due to the availability of the forensic evidence, the statement by Emily against Alan’s alibi, and the confession to Darius in the cell, the prosecution’s case is not just reliant on the identification evidence, then a Turnbull warning need not be provided.
Table of cases
R v Clarke & Morabir  EWCA Crim. 162 R (Doughty) v Ely Magistrates' Court  EWHC 522 R v Turnbull  QB 224
Roberts P and A Zuckerman, Criminal evidence (Oxford University Press 2010).
Home Office, CODE D Revised Code of Practice for the identification of persons by Police Officers (London: TSO 2017).
Law Commission. Expert evidence in criminal proceedings in England and Wales (The Stationery Office 2011).
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