The Facebook Photograph and the Witness Who Will Not Travel

Admissibility. The cashier's evidence is admissible, and so is the officer's account of what the cashier said when shown the photograph. A previous identification by a witness who gives evidence is not excluded as hearsay - it is admitted as original evidence of the identification, and in England and Wales the statutory route is section 120 of the Criminal Justice Act 2003 (confirm the current text). The officer can therefore describe the viewing, the words used and the conditions.

But admissibility is not the end of it. Three matters go to weight and fairness:

• The procedure. Where a suspect is known and an identification procedure is practicable, the codes require a proper procedure with foils, blind or double-blind administration and recorded instructions. Showing a single Facebook image is the weakest possible method. That is a breach, but breach does not automatically exclude: the question is whether admission would have such an adverse effect on the fairness of the proceedings that the court should exclude it, and the court has a discretion to do so.
• Contamination and displacement. The cashier had seen the photograph before any formal procedure. The risk is that his memory has been overwritten and his confidence inflated. You should ascertain exactly when the photograph was shown, who chose it, whether the cashier had seen other images, and whether any record or log exists. If those questions cannot be answered, that assists the defence.
• Recognition, not identification. Because the cashier knew the defendant by sight, the case is arguably one of recognition, but the same dangers apply and the jury must still be warned about the special need for caution.

Your approach. Disclose the image, the officer's notebook and any viewing log. Call the officer and take him through the decision not to hold a procedure, so the jury hears the explanation rather than the point emerging only in cross-examination. Ask the judge for an appropriately tailored warning about identification, including the effect of the single photograph. Anticipate a submission that the identification should carry little weight if it is the central plank of the case.

Identify the gateway precisely. The obvious route is the statutory hearsay gateway for a witness who is outside the country and whose attendance cannot reasonably be secured; in England and Wales that is section 116(2)(b) of the Criminal Justice Act 2003. There is also a residual discretion to admit in the interests of justice, and a documentary route where the statement was made in the course of a trade or business. Check the current wording and the notice requirements, and serve notice as soon as the point is known.

Prove the facts, do not assert them. 'He will not travel' is not the same as 'it is not reasonably practicable to secure his attendance'. You need evidence: his address abroad, the attempts to contact him, whether he is willing to give evidence by live link, the cost and practicality of arranging it, his employment situation, and whether any of this was tested. A witness who simply refuses is different from one who cannot come. Expect the judge to press you on whether a video link was explored, especially as the evidence concerns a description that may be disputed.

Be candid about the risks.

• Article 6 fairness. The defence cannot cross-examine. Where the hearsay is the sole or decisive evidence against the defendant, admitting it may render the trial unfair; where it is supportive rather than decisive, the usual course is to admit it with a clear direction on the disadvantages to the defence.
• Weight. The statement contains an evaluative description ('moving like he'd done it before'). That is opinion and speculation dressed as observation, and it invites an application to edit it out. Concede the excision rather than lose credibility arguing for it.
• Corroboration. Decide whether you actually need the statement. If the cashier's evidence is fragile, the driver's description ('tall and left-handed') may look like support but may not match the defendant at all - check his height and handedness before relying on it.

Advice. Make the application, offer live-link evidence as the alternative, agree the excision of the speculative phrase, and be ready to accept a strong direction on the inability to cross-examine.

The co-accused. A guilty plea is evidence against the person who entered it; it is not, without more, evidence against the defendant. If the co-accused does not give evidence, the prosecution cannot ordinarily use anything he said about the defendant as proof of the defendant's guilt, and an application to admit it as hearsay in the interests of justice would be stoutly and properly resisted.

Practical steps: find out whether he has been sentenced. A convicted co-accused who has been sentenced loses the privilege against self-incrimination on this matter and is compellable, so consider a witness summons and take instructions on why he is unwilling. If he does give evidence but departs from his statement, you may seek leave to treat him as hostile - but be realistic: a hostile, reluctant witness can damage your case more than his absence. Do not let the jury be left with the impression that his plea proves the defendant's involvement; if there is a risk of that, ask for a direction.

The caution. A caution is an admission and can amount to evidence of misconduct, so it may fall within the bad character provisions even though it is not a conviction. Analyse which gateway could open:

• If the defence attacks the cashier's character - for example by suggesting he is lying, racist or motivated - the attack-on-another's-character gateway may be triggered, and the caution could then be admitted.
• If the defendant gives evidence of his own good character, or the defence adduces it, that may open a gateway too.
• Propensity based on a single theft caution is weak: robbery and theft are different in seriousness and the circumstances are unknown. The prejudicial effect may well outweigh probative value.

Advice to the defence team and to the court. Before any attack on the cashier's character is launched, weigh whether the point can be made without imputing dishonesty. If the prosecution intends to rely on the caution, be precise about the gateway and the relevance, and be ready for the argument that a 2021 caution for theft proves nothing about a 21:40 street robbery.