Judicial Committee of the Privy Council
| DOI | 10.1177/002201839606000306 |
| Author | J A Coutts |
| Published date | 01 August 1996 |
| Date | 01 August 1996 |
| Subject Matter | Judicial Committee of the Privy Council |
JUDICIAL
COMMITTEE
OF
THE
PRIVY
COUNCIL
CONSEQUENCE OF MISDIRECTION ON IDENTIFICATION EVIDENCE
Shand v R
When, in RvTurnbull
[1977]
QB 224, the Court
of
Appeal laid down the
requirement that, in a case of visual identification evidence, the judge must
give the jury a 'special warning' of the danger of acting on such evidence,
and
of
the reasons for that danger, Lord Widgery CJ added that 'a failure
to follow these guidelines is likely to result in a conviction being quashed
and will do so if in the judgment of this court on all the evidence the
verdict is either unsatisfactory or unsafe'. The frequency with which the
failure to give the 'special warning' has been followed by the quashing of
the conviction has perhaps led to a widespread belief that this consequence
is well-nigh inevitable. The judgment
of
the Privy Council in Shand v R
[1996]
I WLR 67 indicates that this is not so; and the Board expressly
drew attention to the terms actually employed by the Lord Chief Justice,
both in laying down the rule and in setting out the consequences of
ignoring it. The Board drew attention to the fact that 'he thus recognises
that there might be exceptional cases where, despite the fact that the
warning was not given, the court could still be satisfied that the verdict
was neither unsafe nor unsatisfactory' (per Lord Slynn, at p 744).
The need for a Turnbull direction, which puts visual identification
evidence in a special category, arose out of the unfavourable and
widespread publicity which accompanied errors which were shown to have
occurred in identification. In Jamaica, however, there was apparently no
similar history of errors (or, at least
of
the sort
of
publicity which occurred
in England). The Jamaican courts, not unnaturally, saw no reason for the
exceptional English rule which had been introduced to deal with a 'local'
English difficulty. A Turnbull direction was, therefore, not mandatory, or
even thought desirable, in every case. A series
of
cases before the Privy
Council, however, has led to the introduction
of
the English practice into
Jamaica: see, eg, Junior Reid v R
[1990]
I AC 363. Notwithstanding what
was said by the Board in those cases, it would appear that in exceptional
cases a failure to follow the guidelines in R v Turnbull will not necessarily
result in the quashing of the conviction. There is in England the highest
authority for the statement that neither R v Turnbull itself nor the many
cases which have followed it intended to close the door to the application
of the proviso; indeed, that course was deliberately left open by those
cases. The vital question, therefore, is, 'What are the exceptional
circumstances which will permit a failure to give a "special warning"
without the consequence
of
the quashing of the conviction'? The Board
held in the present case that 'exceptional circumstances' include the fact
that the evidence of visual identification is
'of
exceptionally good quality'.
In such a case the question is whether the evidence
of
visual identification
is qualitatively good to a degree which will justify the application of the
304
To continue reading
Request your trial