The House of Lords considered whether s41 could be operated in compliance with the HRA 1998 and in particular Art 6.
The House held that it was possible to read s41, particularly s41(3)(c), as implying that evidence would not be inadmissible if it was needed to comply with Art 6 ECHR. Thus, logically relevant evidence could be admitted.

Two defendants lied about the circumstances of their murder of an elderly man during a robbery. They claimed he had been alive when they left the scene and that the neighbour who was known to them had killed him. The judge gave the jury a warning about the lies told to the police. The defence appealed on the grounds that the warning also ought to have been given in relation to lies told in court. Appeal dismissed since the directions had been adequate.

The Court of Appeal held that a Lucas direction should be given if accused relies on evidence of alibi, or where the judge directs the jury that the lies may be supporting evidence, or where the prosecution rely on a lie as evidence of guilt, or there is a real danger the jury may treat the lie as evidence of guilt.

C was convicted of a sexual assault on a 6-year-old child, for whom he was baby-sitting 25 years previously. The arrest and trial occurred after the complainant and her mother recognised him informally on Facebook. The father, however, failed so to identify him. C denied his presence. No VIPER was held. T appealed.

Upholding the conviction, the Court of Appeal held that, although a breach of Code D had occurred, the judge had acted within the area of discretion provided by s78 PACE The identification evidence was admissible. The case demonstrates the paucity of analysis on the fair application of Code D3.12 and s78 PACE where identification on social media is concerned.

The defendants were convicted of conspiracy to rob. The evidence against them included covert recordings from a probe placed in the van used in the aborted robbery. Police officers claimed the voices on the recording matched those of the defendants, which they had heard following arrest. The defendants successfully appealed to the Court of Appeal.

Although it was highly desirable, it was not mandatory that voice recognition be carried out by experts. Minimum standards had not been observed in this case. Where voice recognition was properly admitted the jury should be permitted to compare the recorded voices with the voices of the defendants if they heard them giving evidence.

The victim of an attempted robbery made a street identification of the defendant. A request for an identification parade was refused. The defendant was convicted. The House of Lords rejected his appeal. There should have been an identification parade and appropriate directions to the jury but in this case the conviction was safe.

A procedure under Code D is mandatory unless the suspect is well known to the witness or there are exceptional circumstances. Academics have called for a stricter approach to exclusion of evidence for breaches of Code D, see eg Choo (2021, p154).

T was convicted of conspiracy to cause grievous bodily harm and intending to pervert the course of justice. The prosecution case was that in an act of reprisal in gang warfare in 2015 T and an unknown gunman had visited the house of H where Mrs H and her son were shot. The gunman was not traced and T was accused of helping the escape. The issue was the identity of the gunman’s companion. T’s defence was alibi. T was arrested in Spain in 2016 and Mrs H recognised him from a Sun photo on her iPad taken in 2013. She deleted the iPad search history before being interviewed. She also collaborated in the construction of an e-fit image of T. This was admitted under agreement as a potential inconsistent statement under s4 CPA 1865 and s119 CJA 2003. The judge refused T’s request to admit evidence from police officers that they did not think the e-fit resembled him.

On appeal, the Court of Appeal upheld the conviction. There was no impropriety on the part of the prosecution and s78 PACE did not apply. The case provides a useful discussion on s115 CJA 2003 and the hearsay statutory definition of pictures including photofits and sketches. In a Case Comment A Roberts(2021) considers the additional issue of s121 CJA and considers the e-fit is not multiple hearsay,

Police, as a result of information, had kept watch at the site of a planned robbery. A man was recognised by police as Turnbull. He appealed on conviction. The appeal was dismissed.

Other evidence supported the identification and, although the officer had only caught a fleeting glimpse of the defendant, the conviction was safe. Guidelines were set out for judicial directions in cases which depended wholly or substantially on disputed identification evidence. Specific areas of concern in the procedure of the trial should be addressed. It is arguable that the Turnbull guidelines need to address complex challenges posed by social media, voice recognition, and facial mapping. In addition there is a need for incorporating more fully clinical and psychological research into memory.

A Polish woman (M) was attacked from behind in the street. The attacker ran off when her boyfriend appeared. Police arrived quickly and a suspect was found nearby and identified by M as her attacker after he was questioned by police. Only at the trial had it become apparent that her identification had been based on his voice. The defence request for an adjournment, based on expert advice on voice recognition, was refused. The defendant appealed his conviction

The conviction was unsafe and the appeal was allowed. Voice identification posed more difficulties than visual identification, as the expert opinion had explained, and required more stringent directions to the jury.

Three defendants were convicted of attempted murder which occurred during a street brawl. The court heard evidence from a police officer who recognised the suspects from a long session studying CCTV records. Her identification was supported by phone records and evidence from a facial mapping expert. The defence request for exclusion of the officer’s identification from CCTV was refused by the trial judge. The Court of Appeal upheld the convictions.

There was a breach of Code D in that the investigating police officer had not kept a log of her examination of CCTV during which at times she had been accompanied by other officers. She believed Code D did not apply. However the convictions were safe. See comment by McKeown (2021, p395) that it was ‘staggering no log was kept’. There was a danger of confirmation bias in that hypotheses were upheld.