Weak identification from an unfair photo array
D is charged with robbery. The victim saw the attacker for about 10 seconds under a streetlight from 5 metres. Two days later, police show the victim a laptop photo array. D's photo is ten years old and shows him with long hair; the other photos are recent and show short hair. The officer says, 'Take your time; are you sure?' The victim picks D. At trial, the victim identifies D in the dock. The defence argues the identification is unreliable. The judge must decide admissibility and, if admitted, what directions to give. There is no other evidence linking D to the robbery.
1. Assess the identification evidence under Turnbull and Code D.
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Turnbull. The quality of the identification depends on the circumstances: 10 seconds is short, although the streetlight and 5-metre distance may assist. The victim did not know D. Stress is a factor. The photo array breached Code D because D's photograph was ten years old and showed different hair, making the array unfair and potentially suggestive. The officer's remark 'are you sure?' added pressure.
Admissibility. Identification evidence is admissible, but the court has discretion under s.78 PACE 1984 to exclude it if the breach makes the trial unfair. The dock identification is also weak. The judge should consider whether the evidence is so poor that it should be withdrawn from the jury. If admitted, the jury must be warned of the special need for caution.
2. What application should defence make and what directions should the judge give if the evidence is admitted?
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Application. Defence should apply under s.78 to exclude the identification evidence, relying on the Code D breach and suggestibility. If the judge admits it, defence should seek a Turnbull direction: the jury must be told of the special need for caution, the reasons why mistaken identification can occur, and the specific weaknesses in this case (short observation, old photograph, suggestive comment, dock identification).
No case. Because there is no other evidence linking D to the robbery, if the identification is excluded or assessed as poor, defence may make a submission of no case to answer. The judge should withdraw the case if the identification evidence is too weak to be safely left to the jury.