Court of Appeal
| DOI | 10.1177/002201830306700203 |
| Published date | 01 April 2003 |
| Date | 01 April 2003 |
| Subject Matter | Article |
Court
of
Appeal
Identification
of
Suspects from
CCTV
and Video
Recordings
Attomey-General's Reference
(No.2
of
2002) [2002] EWCA Crim 2373
The acquitted person G was charged
with
riot, contrary to s. 1(1) of the
Public Order Act 1986. The prosecution case was founded on the evi-
dence of two police officers purporting to identify G in a video recording
of
the
incident. The first officer did
not
know
G
but
had
spent a
considerable
number
of hours viewing the videotape. This officer, in a
subsequent chance
encounter
with
G, recognised
him
as
the
person
that
he
had
seen depicted in
the
video film. No objection was taken
when
this identification was proffered in evidence in accordance
with
RvClare
and
Peach [1995] 2 Cr App R 333.
The second officer, Police Constable G, was a community beat officer
who
claimed to
know
Greasonably well having
had
a
number
of
dealings
with
him
over aperiod of five years. This officer was invited to
view
the
footage
under
controlled conditions
and
identified G as being
one
of
the
rioters. Before Constable G was called
to
give evidence
the
trial judge invited submissions as to the admissibility of his evidence.
Having heard submissions, he stated
that
the officer
had
no specific
skills, abilities or experience
that
were
not
possessed by the jury. Be-
cause the evidence
on
which
the
recognition
had
been
made, i.e, the
video film, was available
to
the
jury
and
they were in a better position
than
the
officer by virtue of being able to view the film
and
at the same
time compare
the
images with
the
man
in the dock, he ruled
that
Constable G's evidence should
not
be admitted. Consequently,
due
to
the
insufficiency of
the
identification evidence, at the close of the
prosecution case
the
judge directed
that
the
jury
return
averdict of not
guilty.
The Attorney-General referred three questions for
the
opinion of the
court:
1.
When
asuspect 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?
2. For an identification by such awitness to be admissible, is it a
requirement of law
that
the
witness must have special skills,
abilities, experiences
and
knowledge which
the
jury
does
not
have?
91
TheJournal of
Criminal
Law
3.
If
so,
what
should
those special skills, abilities, experience
and
knowledge be?
HELD,
on
the
authorities,
there
were
at least four circumstances in
which, subject to judicial discretion to exclude, evidence was admissible
to
show
and, subject to appropriate directions in
the
summing-up,
ajury
could be invited
to
conclude
that
the
defendant
committed
the
offence
on
the
basis of a photographic image from
the
scene of
the
crime:
1.
Where
the
photographic image is sufficiently clear,
the
jury
can
compare it
with
the
defendant
sitting in
the
dock (see Rv
Dodson
and Williams (1984) 79 Cr App R 220).
2.
Where
awitness
knows
the
defendant
sufficiently well to recog-
nise
him
as
the
offender depicted in
the
photographic image, he
can
give evidence of this (see Rv
Fowden
and White [1982] Crim LR
588, Kajalav
Noble
(1982) 75 Cr App R 149, Rv
Caldwell
and
Dixon
(1994) 99 Cr App R (5) 73,
and
RvBlenkinsop [1995] 1 Cr App
R (5) 7);
and
this
may
be so
even
if
the
photographic image is no
longer available for
the
jury
(see
Taylor
vChief
Constable
of
Cheshire
(1987) 84 Cr App R 191).
3.
Where
awitness
who
does
not
know
the
defendant
spends sub-
stantial time viewing
and
analysing photographic images from
the
scene,
thereby
acquiring special knowledge
that
the
jury
does
not
have, he
can
give evidence of identification based
on
acomparison
between
those images
and
areasonably contemporary
photograph
of
the
defendant, provided
that
the
images
and
the
photograph
are
available
to
the
jury
(see Rv
Clare
and
Peach
[1995] 2 Cr App R
333).
4. A suitably qualified expert
with
facial mapping skills
can
give
opinion evidence of identification based
on
acomparison
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
(see Rv
Stockwell (1993) 97 Cr App R 260, Rv
Clarke
[1995] 2 Cr App R
425,
and
RvHookway [1999] Crim LR 750).
Accordingly,
the
answer
to
the
first question posed was in
the
negative.
The second
and
third questions
would
be
answered
by reference
to
the
knowledge of
the
witness which was essentially
the
basis of
the
recogni-
tion by him. Aside from
that
knowledge, no special skill or ability or
experience is requisite, save in
the
category of case
where
the
witness
does
not
know
the
defendant so as
to
be able to recognise him,
but
does
acquire special skills in relation
to
those appearing in
the
video
taken
at
the
scene of
the
incident, by frequent playing
and
analysis of it.
COMMENTARY
Given
the
extraordinary expansion in
the
use of
CCTV,
increased availa-
bility of broadcast images
and
police use of video
equipment
to
gather
evidence of serious disorder at public events, this case represented an
92
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