Low quality images and identification; directions to the jury
| Author | Adam Jackson |
| DOI | 10.1177/0022018314557415b |
| Published date | 01 December 2014 |
| Date | 01 December 2014 |
| Subject Matter | Court of Appeal |
33A.5: (a) the ‘extent and quality of the data’; (b) whether it properly explained her inferences from
those data; (d) whether the ‘theoretical considerations’ (RvH, para. 34) on which her report relied had
been adequately reviewed by others; (e) the extent to which it was based on material outside her field of
expertise; (f) the completeness of the information available to her and whether her report took account of
all relevant information; (g) whether she had properly explained her position in relation to the range of
opinion on false or recovered memory; and (h) whether she had followed established psychiatric practice
in reaching her conclusions as she did.
In addition, the court might well have found some of the ‘potential flaws’ which para. 33A.6 exhorts
judges to be ‘astute to identify’. While Dr Boakes’ views on false memory might not be susceptible to
experimental testing, questions might be raised about whether they had been ‘subjected to sufficient
scrutiny’. Her conclusions might be said to be ‘based on an unjustified assumption’ about the allegations
having emerged in therapy, and perhaps to be ‘based on flawed data’. Her ‘technique or method’ of com-
menting on the reports of others without having examined the patient herself might have been deemed
‘[in]appropriate for use in the particular case’, and she might well have been accused of ‘relying on an
inference or conclusion which has not been properly reached’. Whether or not such criticisms would be
fair or accurate (which we cannot judge without reading Dr Boakes’ report), they largely reflect the criti-
cisms actually made by the trial judge and the Court of Appeal. Thus although the ‘new and more rig-
orous approach’ is undeniably demanding, it is not a radical departure from the current practice of the
courts in their more rigorous moments.
To assist the courts in implementing this new approach, the Criminal Procedure Rules 2014 (which
like the Practice Direction come into force on 6 October 2014) require an expert’s report to include ‘such
information as the court may need to decide whether the expert’s opinion is sufficiently reliable to be
admissible as evidence’ (r. 33.4(h)), and the party calling an expert must serve notice of anything of
which he or she is aware that might detract substantially from the expert’s credibility, such as the crit-
icism of Dr Boakes’ evidence in other cases (r. 33.3(3)(c)). The new rules also reinforce the duty of the
expert to define and remain within her field of expertise (r. 33.2(3)).
Emma Piasecki and Tony Ward
Low quality images and identification; directions to the jury: RvMorrisey (Tara) [2014]
EWCA Crim 1518
Keywords
Identification evidence, jury directions, supporting evidence, theft
Facts:
The appellant TM was convicted of two counts of theft following trial in the Crown Court at Bristol.
The case for the Crown was that TM had entered a shop in Weston-Super-Mare on three separate
occasions on 21 May 2014 and whilst there had committed thefts. On the first occasion, at 1 pm
on the day in question, the shop manager Mr Thayagrajah observed two people enter the shop, one
of them a blonde female. He watched the blonde female take a bottle from a shelf and ‘draw it down
in the direction of her bag’ (at [2]), the other person also took a bottle from the shelf and at the till
only one bottle was paid for. At around 6.40 pm on the same day the same blonde female entered the
shop with some children where she selected and paid for sweets but not a four-pack of cider. Later
that evening at around 9.50 pm thesame woman again entered the shop.Mr Thayagrajah, who by thistime
was suspicious,monitoredher on CCTV. The woman selecteda four-pack of cider and some sandwiches,but
at the till shedid not attempt to pay for the cider.Mr Thayagrajah locked the doorsremotely and challenged
460 The Journal of Criminal Law 78(6)
460
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