'It is well known that identification evidence, like confession evidence, has contributed to a significant number of miscarriages of justice.' (A Choo, Evidence (OUP, 2021, p 142).

Examine whether the current rules and procedures governing the use of identification evidence in criminal trials ensures fairness.

Analysis of the Question

This question is rather broad, and you must avoid simply giving a narrative account of the law in this area. Give a brief account of the historical background to the current law, referring in particular to the Devlin Committee Report in 1976, which concluded 'we are satisfied that in cases which depend wholly or mainly on eyewitness evidence of identification there is a special risk of wrong conviction. It arises because the value of such evidence is exceptionally difficult to assess: the witness who has sincerely convinced himself and whose sincerity carries conviction is not infrequently mistaken.' Choo cites the notorious miscarriages of justice, beginning with Adolf Beck (1896) and referring also to the case of R v Mattan (1998) The Times 5 March, more than a hundred years later where a 42-year-old conviction was quashed by the Court of Appeal because of questionable identification evidence. The innocent defendant had been hanged more than four decades earlier. The two provisions which attempt to prevent the admission of such flawed evidence are the PACE Code D procedures covering pre-trial identification and Turnbull warnings to the jury on the potential pitfalls of such evidence. You should write a paragraph outlining the law in each of these two areas. Note that the question refers to 'identification' in general not specifically 'eyewitness identification' so it would be appropriate to refer at least briefly to other forms of identification such as CCTV and voice recognition. A possible plan for your essay is:

Arguments to suggest the current provisions ensure fairness:

• Identification procedures, now mainly covered by video (VIPER) are strictly regulated and police are able to set up identifications very soon after the incident.
• Procedures are effectively mandatory in certain circumstances, see R v Forbes (2001).
• Section 78 PACE applies to exclude evidence if procedures have not been followed, R v Popat (1998).
• Dock identifications are not allowed, R v Conway (1990).
• The Turnbull guidelines are very specific and failure to give them may result in overturning a conviction. They stress that this is an area where honest witnesses may be mistaken. The case of Daley v R (1994) established that a case depending on identification evidence could be withdrawn from the jury even if it did not meet the high standards of no case to answer set out in R v Galbraith (1981). The question is one of the honest reliability of the witness, not his or her veracity.
• Case law suggests that the courts apply Turnbull strictly, see R v Nash (2004) and R v Weeder (1980).
• There are very specific cases where a Turnbull warning is required, see R v Bentley (1994) on recognition cases, R v Thornton (1995) when accused admits being at the scene, R v Moore (2004), even if the witness is a police officer.

Arguments to suggest the current provisions do not adequately ensure fairness:

• Code D has been amended after R v Forbes to allow more instances where an identification procedure is not allowed.
• Even though dock identifications are not desirable they do occur, particularly in magistrates’ courts.
• Discretion not rule is applied in this area of law, in contrast to s76 PACE (see Choo (2009, p164)).
• The regime for identification from photographs, CCTV and video recordings is not well regulated, (see R Costigan ‘Identification from CCTV: The Risk of Injustice [2007] Criminal Law Review 591),.
• Voice recognition is not subject to sufficient judicial or statutory control. Robson suggests that ‘In every case where identification is disputed and no voice parade has taken place, its absence should be a weakness which the jury are directed to consider in their assessment of the evidence’. (See Robson J., ‘A fair hearing? The use of voice identification parades in criminal investigations in England and Wales?’ (2017 Crim LR p. 36, 50).
• Technological and digital methods of identification, e.g. facial mapping are arguably too readily accepted without proper controls, see R v Stockwell (1993), R v Clarke (1995).
• The jury need more assistance in understanding expert witnesses and the new technologies of identification see R v Flynn and St John (2008).
• The Turnbull guidelines are considered by commentators not to be adequate, Emson (2010, p. 313) comments that they are ‘the product of a cost-benefit analysis aimed at minimising (as opposed to eliminating) wrongful convictions while ensuring that the guilty are brought to account’.
• Increasing use of CCTV and social media in identification is causing concern that Code D provisions are not adequate. See R v Yange (2020) and R v Crampton (2020).

Conclusion

The law has arguably been dominated by a reluctance to return to strict corroboration requirements. The extension of DNA matches as a means of identification will shape the future law in this area. Note, however, that no method is infallible, as the history of fingerprint evidence shows. Choo suggests that ‘an approach along the lines of that provided by the Evidence Act 2006 of New Zealand may be appropriate’(see 2021, p. 154). He quotes Section 45(2) of that Act which provides that, if the law enforcement officers do not have good reason to breach procedures, evidence should not be admitted unless the prosecution prove beyond reasonable doubt that the circumstances in which the identification was made have produced a reliable identification.