REFERENCE BY THE ATTORNEY GENERAL UNDER v S.36 CRIMINAL JUSTICE ACT 1972 [2002] EWCA Crim 2373

IN THE COURT OF APPEAL

CRIMINAL DIVISION

[2002] EWCA Crim 2373

Case No No: 200205110/S4

Venue Royal Courts of Justice, Strand, London, WC2

Between

REFERENCE BY THE ATTORNEY GENERAL UNDER

S.36 CRIMINAL JUSTICE ACT 1972

ATTORNEY-GENERAL's REFERENCE NO 2 OF 2002

Before

Lord Justice Rose

Mr Justice Pitchers

Mr Justice Treacy

MR R HORWELL appeared on behalf of the ATTORNEY GENERAL

Date 7 October 2002

[1]THE VICE PRESIDENT: There is before the Court a reference under section 36 of the Criminal Justice Act 1972 whereby the Attorney-General seeks the Court's answer to three questions in relation to evidence where there are photographic images from at the scene of an offence.

[2]G was tried on indictment on one count of riot, contrary to section 1(1) of the Public Order Act 1986. A video film was taken. The quality was not of the best. It was the Crown's case that G was one of those to be seen in the film. The Crown sought to prove his identity through the evidence of two police constables.

[3]The first was D, who was a member of the police video viewing team set up after the riot. He spent a considerable number of hours viewing the film and, in consequence, became familiar with the appearance of persons to be seen in it. In consequence, he was put forward as a witness with specialist knowledge. He did not know G. By chance, after he had viewed the film many times, D saw G and, because of his study of the films, he recognised him as being one of those depicted. His identification was proffered in evidence, in accordance with Clare & Peach

[1995] 2 Cr App R 333

. No objection was taken to the admissibility of that evidence and the witness was cross-examined on the basis that he was mistaken.

[4]The second police officer was Police Constable G. He was an uniformed community constable, who had, over a period of time, had a number of dealings with G, whom he had known for about 5 years reasonably well. Because of his local knowledge, Police Constable G was asked to look at the film. When he saw it, under controlled conditions, he identified from his own knowledge of him, G as being one of the rioters. Just before Police Constable G was called to give evidence, the trial judge, His Honour Judge Woodward, invited submissions as to the admissibility of his evidence. Having heard submissions, he ruled that the identification, through recognition, was, in principle, inadmissible. He said that where a witness: "has no specific skills, has no abilities and has no experience other than that which the jury themselves have," caution should be exercised in allowing evidence from such a witness to go before the jury. The judge described such evidence as being of "very light weight" and questioned the extent to which it might help the jury. He ruled that because in the case before him the original evidence upon which the recognition had been made was available to the jury, that is to say the video film taken at the scene, Police Constable G's evidence should not be admitted. He added that the jury was in a better position than Police Constable G if the man on the film was the defendant because, unlike Police Constable G, the jury could view the film and at the same time compare the images on the screen with the defendant in the dock. The judge went on to rule that the prosecution could call Police Constable G to describe any peculiarities about the defendant, which the jury could not glean from looking at or listening to him, such as his gait and any changes in his appearance since the officer had last seen him.

[5]Following further submissions, however, the judge excluded further evidence from Police Constable G's, which had been served briskly by way of additional evidence in the light of the indication which he had given, because it had been served late and the defence had been unable to meet it. Accordingly, Police Constable G's identification, through recognition, not having been admitted, at the close of the prosecution case, the judge directed that the jury return a verdict of not guilty because of the insufficiency of the evidence on the question of identity.

[6]It is submitted by Mr Horwell, who did not appear in the court below, on behalf of the Attorney-General, that the learned judge's ruling was contrary to well established principles of law, in that it failed to distinguish the material difference between Police Constable G and the jury. The judge, submits Mr Horwell, introduced two inappropriate new tests, in relation to admissibility of evidence of this kind. First, as to whether the video film was available, the judge's conclusion that, if it was, the evidence of the witness was inadmissible, was an erroneous misapplication of Taylor v Chief Constable of Chester 84 Cr App R 191. Secondly, submits Mr Horwell, the judge misapplied Clare & Peach , in ruling that, when the video film was available, recognition evidence was only available if a witness had some special skill or knowledge.

[7]In letters to this Court, from counsel who represented the defendant at trial and from the trial judge, both accept that the judge's ruling was wrong. In fairness to counsel for the defence, who, because of the view he takes, has not thought it appropriate or necessary for him to attend this Court, it should be said that the judge's ruling did not emanate from any submissions made by counsel. It was the judge who started the particular ball rolling.

[8]Mr Horwell, in his written submissions, has helpfully reviewed the relevant authorities, to which briefly it is necessary to turn. In Fowden & White [1982] Crim LR 588, a video film of theft from a store was available to be played to the jury. A police officer and store detective, who knew the two defendants, identified them as the thieves shown in the film. The defence contended that such evidence should not be admitted because it was for the jury alone, looking at the film, to determine the issue. The Court of Appeal, in which Lord Lane CJ presided, said there was no reason in principle why the Crown could not call a witness who knew a defendant and who identified him as being the person on the film. The conviction was quashed in that case because the prejudicial effect of the identifying evidence outweighed its probative value.

[9]In Kajalave v Noble 75 Cr App R 149, a film taken of a public disturbance was shown on a BBC news programme and a copy of it was available to be played at court. A witness, who saw the news broadcast, recognised one of those involved as the defendant. He knew the defendant very well. He gave evidence before the justices and identified the defendant as being shown in the film. There is no suggestion in the judgment of the Divisional Court that such evidence should not have been admitted.

[10]In Grimer [1982] Crim LR 674, the thief was captured, stealing from a store, on film available to be played to the jury. A security officer who had known the defendant for several years saw the film and identified the thief as the defendant. On appeal, it was contended that the security officer's evidence should not have been admitted. The Court held there was no distinction between the evidence of a man who looked at a video-tape and recognised someone participating in the offence and that of a bystander who saw the offence first-hand.

[11]In Dodson & Williams 79 Cr App R 220, two men were involved in an attempted armed robbery at a building society. There were no available witnesses who knew the defendant. There were photographs available to be placed before the jury taken from security cameras. The case demonstrates that it is permissible for the Crown to place before a jury photographs taken by a security camera and then to invite the jury to conclude that the offender shown in the photograph is the man in the dock. Watkins LJ, at page 228 of the report, said that a jury, in performing such task, were not acting as experts, but were doing no more than the average person "in domestic social and other situations" does from time to time, "namely to say whether he is sure that a person shown in a photograph is the person he is then looking at or who he has seen recently."

[12]In Taylor v The Chief Constable of Cheshire 84 Cr App R 191, a thief was recorded on a video film stealing from a store. The film was seen by three police officers who identified the thief as the defendant. The recording was then accidentally erased, and was therefore not available to be played at court. It was conceded in argument that evidence of identification from a witness, who recognises the offender as being the defendant, was admissible, but only if the recording could be viewed by the Court. The Divisional Court held that the evidence had been rightly admitted. Ralph Gibson LJ, at page 199 said:

"For my part I can see no effective distinction so far as concerns admissibility between a direct view of the action of an alleged shoplifter by a security officer and a view of those activities by the officer on the video display unit of a camera, or a view of those activities on a recording of what the camera recorded. He who saw may describe what he saw because, as Ackner LJ said in the case of Kajalave v Noble to which I have referred, it is relevant evidence provided that that which is seen on the film or recording is connected by sufficient evidence to the alleged actions of the accused at the time and place in question. As with the witness who saw directly, so with him who viewed a display or recording, the weight and reliability of his evidence will depend upon assessment of all relevant considerations, including the clarity of the recording, its length, and, where identification is in issue, the witness's prior knowledge of the person said to be identified, in accordance with well established principles."

[13]In Caldwell & Dixon 99 Cr App R(S) 73, an off-licence was robbed by four men, who were recorded on a video camera, the film from which was available to the jury. Two forms of identification evidence were adduced. First, from the victims of the robbery, following an identification parade, and, secondly, from police officers, who viewed the video-tape and who recognised two of the participants as being the two defendants. It was contended on appeal that that recognition evidence from the officers should not have been admitted because of its prejudicial effect, that argument being based on Fowden & White.

[14]The Court of Appeal concluded that Fowden & White was not a decision of wide application because of its own limited facts and the appeal was dismissed. In the course of giving the judgment of the Court, Simon Brown LJ, in a passage starting at page 76 said:

"The plain fact is that recognition evidence of this kind is, subject always to the discretion of the trial judge to exclude it, prima facie admissible... Recognition, all would should surely agree is generally more reliable than identification of a stranger and accordingly it ordinarily deserves greater evidential weight.... It is no answer to say that the jury themselves are able to view the video and over the space of a seven day trial can observe the accused sufficiently to make their own identification or not as the case may be. Of course the jury will attempt to form their own view on the matter and test the police officer's recognition evidence by reference to their own perceptions. But that is not to deny the police officer's evidence any probative value. On the contrary, the police officers had two undoubted advantage over the jury. First, of knowing the accused in a more relevant way than available to the jury simply by watching them in the dock... secondly whatever criticisms may be made regarding the haphazard process of video showing, each officer in fact said that he made his own recognition independently and spontaneously. That certainly was not a possibility open to the jury."

[15]In Blenkinsop

[1995] 1 Cr App R(S) 7

, a violent demonstration was recorded on video film and still photographs, all of which were available to the jury. The jury were invited to conclude that the person shown was the defendant. Furthermore, a police officer, who had interviewed the defendant for three minutes, recognised him as being the offender in the photographs which he saw 2 months after the interview. That evidence was all adduced without objection and was reviewed by a differently constituted division of this Court without criticism of it having been admitted.

[16]Clare & Peach , to which we have referred, is authority for the proposition that a witness who has spent a great deal of time viewing and analysing a video film of an incident, acquires a "special knowledge that the court does not possess" and is entitled to give the court the benefit of that knowledge. By comparing good quality still photographs taken on the day, which were undoubtedly of the defendants, with images on the video recording, evidence given that the person on the still photograph was the same person shown on the video film. This Court upheld the admissibility of such identification evidence. The special knowledge was required only because the witness did not know the defendant and because the basis of his identification was the many hours of intensive viewing of the film which he had carried out.

[17]Mr Horwell submits, rightly, that Clare & Peach is not authority for the proposition that special knowledge is required when the witness does know the defendant and can identify him through recognition.

[18]Mr Horwell's submission is that recognition evidence of this kind, subject always to the discretion of the trial judge, is prima facie admissible and should generally be admitted.

[19]In our judgment, on the authorities, there are, as it seems to us (at least four circumstances in which, subject to the judicial discretion to exclude, evidence is admissible to show and, subject to appropriate directions in the summing-up) a jury can be invited to conclude, that the defendant committed the offence on the basis of a photographic image from the scene of the crime:(i) where the photographic image is sufficiently clear, the jury can compare it with the defendant sitting in the dock ( Dodson & Williams );

(ii) where a witness knows the defendant sufficiently well to recognise him as the offender depicted in the photographic image, he can give evidence of this ( Fowden & White , Kajalave v Noble , Grimer , Caldwell & Dixon and Blenkinsop) ; and this may be so even if the photographic image is no longer available for the jury ( Taylor v The Chief Constable of Chester );

(iii) where a witness who does not know the defendant spends substantial time viewing and analysing photographic images from the scene, thereby acquiring special knowledge which the jury does not have, he can give evidence of identification based on a comparison between those images and a reasonably contemporary photograph of the defendant, provided that the images and the photograph are available to the jury ( Clare & Peach );

(iv) a suitably qualified expert with facial mapping skills can give opinion evidence of identification based on a comparison between images from the scene, (whether expertly enhanced or not and a reasonably contemporary photograph of the defendant, provided the images and the photograph are available for the jury ( Stockwell 97 Cr App R 260, Clarke

[1995] 2 Cr App R 425

and Hookway [1999] Crim LR 750).

[20]In the light of those considerations, we turn to the three questions posed for this Court's opinion by the Attorney-General:

"1. When a suspect is filmed committing an offence, is the evidence of identification by way of recognition from a witness, not present at the scene, but who knows the defendant and who, having seen the film, identifies the suspect as being the defendant, inadmissible, because the film can be played to the jury without calling the witness and the jury will have the opportunity to compare the defendant in the dock to the suspect on the film and can decide themselves if they are one and the same person?"

The answer to that question is 'no'.

[21]The second and third questions posed are:

Cited in 17 later judgments

and 8 more of the most senior