Images, Investigators, Identification, Code D and the Court of Appeal

Published date01 April 2024
DOIhttp://doi.org/10.1177/00220183231221865
AuthorGary Edmond,Natalie Wortley
Date01 April 2024
Subject MatterArticles
Images, Investigators, Identif‌ication,
Code D and the Court of Appeal
Gary Edmond
Faculty of Law and Justice, UNSW, Australia; Northumbria Law School, UK;
Royal Society of New South Wales, Australia
Natalie Wortley
Northumbria Law School, UK
Abstract
The rapid rise in accessibility and portability of cameras has resulted in widespread reliance on
the interpretation of images by analysts and investigators in criminal proceedings. Codes of
practice, guidance and jurisprudence have evolved to facilitate the admission of opinions as
to the identity of offenders (or persons of interest) at trial. In this article, we explain why
allowing investigators to give opinions as to identity on the basis of familiarity with images
or suspects acquired during the course of an investigation is incompatible with mainstream sci-
entif‌ic research and advice, and conducive to error. It rests on the f‌lawed assumption that
investigators can reliably identify or recognise persons in images, articulate and document
the basis of these identif‌ications, and avoid the risk of contamination (really cognitive bias)
from their knowledge of, or exposure to, domain-irrelevant information. Jurors, who may
be invited to conduct their own comparison between an image and the defendant in the
dock, are similarly vulnerable to assuming the task is straightforward, as well as many of the
contextual and cognitive biases confronting investigators. Using the facts and evidence in Rv
Yaryare [2020] EWCA Crim 1314 as a case study, we show how case information available
to investigators and imaging analysts both inform their interpretations of images and is (re-)
presented at trial and on appeal as independent support for their opinions. We identify sub-
stantial threats to fairness, proof and rationality and propose that only witnesses with demon-
strable expertise should be permitted to testify as to the identity of persons of interest in
images.
Keywords
Identif‌ication, images, expert evidence, CCTV, cognitive bias, Code D, opinion, Forensic
Science Regulator, police familiars
Corresponding author:
Gary Edmond, Faculty of Law and Justice, UNSW, Sydney, NSW, Australia; Northumbria Law School, Newcastle upon Tyne, UK;
Evidence-based Forensics Initiative, Australia.
Email: g.edmond@unsw.edu.au
Article
The Journal of Criminal Law
2024, Vol. 88(2) 130161
© The Author(s) 2023
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/00220183231221865
journals.sagepub.com/home/clj
Introduction: Out-PACEd
In recent decades criminal justice systems have been confronted with more and more images of crimes,
preparation for crimes, and the circumstances surrounding crimes. The availability of images and trials
contested around the identity of offenders (or persons of interest) has, in England and Wales, led to wide-
spread reliance on the interpretation of images by investigators and those recognised as experts. Police
gradually developed guidelines and courts jurisprudence to regularise these interpretations and
their admissibility.
1
The main constraintshave been expectations that investigators will document iden-
tif‌ications, endeavour to minimise suggestion and record derogation from norms embodied in the Police
and Criminal Evidence Act 1984 (PACE) Codes of Practice and Practice Advice issued to police
off‌icers.
2
In recent years a plethora of national and international inquiries and reports have placed the forensic
sciences under sustained scrutiny,
3
amid concerns about the role of questionable methods and testimony
in wrongful convictions. In England and Wales, such concerns presaged the introduction of a reliability
test for expert evidence,
4
and the creation of the off‌ice of the Forensic Science Regulator (FSR).
5
Simultaneously, advocates, trial judges and appellate courts apparently remain oblivious to the
growing body of scientif‌ic literature in the f‌ields of image analysis and identif‌ication. While some
image analysts and even some police off‌icers may be genuine experts, we contend that the reliability
of all opinions formed as a result of comparing and interpreting images ought to be subject to the same
sort of critical scrutiny as scientif‌ic and other forms of technical evidence.
6
In this article, through a close review of the Court of Appeals judgment in R v Yaryare,
7
we explain
why allowing investigators to identity persons on the basis of familiaritywith images and suspects
acquired during the course of an investigation is unfair, conducive to error, and encourages irrationality.
We draw upon mainstream scientif‌ic research and advice to explain why training and work as a police
off‌icer do not enhance the ability to accurately identify persons in images, and why repeatedly watching
videos and studying images does not make investigators experts. Rather, scientif‌ic research establishes
that unfamiliar face comparison (or matching) is unexpectedly diff‌icult and prone to error.
1. In 2011, Codes of Practice made under the Police and Criminal Evidence Act 1984 (PACE), were amended to include powers
and procedures for presenting images to any person (including a police off‌icer) for the purposes of obtaining evidence of rec-
ognition. Code D and parallel interventions by police chiefs have, intentionally, facilitated the admission of opinions. Section
67 of the Police and Criminal Evidence Act 1984 provides that the Codes of Practice shall be admissible in evidenceand
any provision of the Codes shall be taken into accountif it appears to the court to be relevant to the determination of any ques-
tion arising in the proceedings. Provisions of Code D may therefore be relevant when a court is asked to consider the admissibility
of identif‌ication or recognition evidence.
2. Home Off‌ice, Police and Criminal Evidence Act 1984 (PACE) Code D: Revised Code of Practice for the Identif‌ication of
Persons by Police Off‌icers (February 2017) (hereafter Code D); Association of Chief Police Off‌icers, Practice Advice on
the Use of CCTV in Criminal Investigations (National Policing Improvement Agency, 2011) (hereafter Practice Advice).
The Association of Chief Police Off‌icers of England, Wales and Northern Ireland (ACPO) was an independent strategic body
which undertook responsibility for the direction and development of the police service. It was replaced by the National
Police ChiefsCouncil in 2015.
3. House of Lords Science and Technology Select Committee, Forensic Science and the Criminal Justice System: A Blueprint for
Change (HL Paper 333) 1. See e.g. National Research Council, Strengthening Forensic Science in the United States: A Path
Forward (National Academies Press, 2009) 9 (hereafter NRC Report); PCAST, Forensic Science in Criminal Courts:
Ensuring Scientif‌ic Validity of Feature Comparison Methods (Executive Off‌ice of the President, September 2016) 6 (hereafter
PCAST Report); Law Commission, Expert Evidence in Criminal Proceedings in England and Wales (Law Com No 325, 21
March 2011).
4. Crim PD Part 19A. See Tony Ward, Admissibility, reliability and common law epistemologyin Paul Roberts and Michael
Stockdale (eds), Forensic Science Evidence and Expert Witness Testimony: Reliability through Reform? (London 2018).
5. The Forensic Science Regulator Act 2021 gave the Regulator statutory powers for the f‌irst time.
6. See Tony Ward and Sharzad Fouladvand. Bodies of knowledge and robes of expertise: Expert evidence about drugs, gangs and
human traff‌icking[2021] Crim LR 442.
7. R v Yaryare and others [2020] EWCA Crim 1314, [2020] 4 WLR 156 (hereafter Yaryare).
Edmond and Wortley 131
Attentive scientists have repeatedly warned forensic scientists and courts about the need to employ
validated methods and to carefully attend to subjective interpretations and error rates.
8
In practice
courts often disregard warnings and methodological advice, while simultaneously trivialising risks
from cognitive bias on the part of police off‌icers and other witnesses as a result of their participation
in investigations or in suggestive viewings. The failure to manage these risks (or to recognise their mag-
nitude) results in contaminated i.e. biased opinions. Imaging analysts and investigating police off‌icers
(whose evidence is admitted as a species of expertise) routinely form opinions about the identity of
persons in images having been exposed to a great deal of suggestive information. This information is fre-
quently then re-presented as independent support for interpretations that were informed really contami-
nated by it. Consequently, we will observe the same information circumstantial strandsin evidence
theory repeatedly relied upon in the same criminal proceedings.
These substantial threats to fairness, proof and rationality are compounded where jurors are invited to
make their own comparisons of images (or voices) in the incredibly suggestive conditions of the con-
tested accusatorial trial. Through our analysis of the evidence in Yaryare, we will expose cognitive
dangers that arise when jurors are invited to compare images having been exposed to much of the infor-
mation available to the identifying witnesses (here the investigating off‌icer and an imaging analyst), while
the defendant, said to be the person in the images, sits passively in the dock. Rather than some kind of test
or conf‌irmation, we explain why jury comparisons are actually cognitive traps.
These issues ought to prompt a critical assessment of the admissibility and treatment of evidence of
identif‌ication from images and this is our aim in the following discussion. We end by proposing a
way forward for image comparison evidence that is grounded in science and cognisant of the need to
facilitate the effective evaluation of testimony as to the identity of persons in images. The following ana-
lysis commences with a review of relevant jurisprudence and legislation, before using the case of
Yaryare
9
as a vehicle to explore their profound limitations and curious displacement from scientif‌ic
research and advice.
Background: A-Gs Ref (No 2 of 2002), PACE 1984 Code D
and the Practice Advice
In its inf‌luential review of extant authorities in Attorney-Generals Reference (No 2 of 2002) (A-Gs Ref
(No 2 of 2002)),
10
the Court of Appeal identif‌ied four situations in which it is permissible to invite a jury
to conclude that a person in an image is the defendant:
(i) where the photographic image is suff‌iciently clear, the jury can compare it with the defendant
sitting in the dock
(ii) where a witness knows the defendant suff‌iciently well to recognise him as the offender depicted
in the photographic image, he can give evidence of this ; and this maybe so even if the photo-
graphic image is no longer available for the jury ;
(iii) where a witness who does not know the defendant spends substantial time viewing and analys-
ing photographic images from the scene, thereby acquiring special knowledge which the jury
does not have, he can give evidence of identif‌ication based on a comparison between those
images and a reasonably contemporary photograph of the defendant, provided that the
images and the photograph are available to the jury ;
8. Much of the material discussed in this essay also applies to the comparison and recognition of voices. See David C Ormerod,
Sounds Familiar? Voice Identif‌ication Evidence[2001] Crim LR 595 and Gary Edmond, Interpretation, cognitive bias and
double-dipping: Misunderstanding opinion evidence in trials and appeals(2023) 97 Aust Law J 543.
9. (n 7).
132 The Journal of Criminal Law 88(2)

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