Video Identification: Appropriate Appearance of Comparator Images
| Date | 01 April 2005 |
| Author | Andy Roberts |
| DOI | 10.1350/jcla.69.2.104.63520 |
| Published date | 01 April 2005 |
| Subject Matter | Court of Appeal |
Court of Appeal
Video Identification: Appropriate Appearance of
Comparator Images
Rv Marcus [2004] EWCA Crim 3387, [2004] All ER (D) 351 (Nov)
D had been arrested on suspicion of committing a number of robberies.
Identity was in issue and it was agreed that a video identification would
be arranged. However, the police encountered difficulty in assembling
persons who sufficiently resembled the appellant, who was a black male
in his late forties with a greying beard and hair. The identification officer
obtained eight images of other persons, only two of which were of a
similar age of none of whom had facial hair. Consequently, the officer
suggested that the images be partly masked.
Two further video identifications were compiled using the unmasked
images. There had been consultation with the Crown Prosecution Serv-
ice in general terms, although the circumstances of the present case had
not been discussed. The CPS had advised that the images should be
unmasked where there was no positive identification.
Before the procedure was commenced the defendant’s representative
was informed of the proposed course of action and objected. The proce-
dure was nevertheless carried out and a number of witnesses positively
identified the defendant when shown the set of unmasked images. In a
voir dire on the issue of admissibility the identification officer conceded
that the defendant had stood out in the set of unmasked images, and
that the procedure adopted had been ‘blatantly unfair’. However, the
trial judge had refused the application to exclude evidence of the identi-
fications taking the view that the trial process was equipped to deal with
any difficulties arising from the procedure. The defendant was convicted
and sentenced to a term of 10 years’ imprisonment.
H
ELD
,
ALLOWING THE APPEAL
,the police had deliberately evaded
Code D, which the court would condemn, and, accordingly, the admis-
sion of the evidence obtained in breach of that Code had rendered the
conviction unsafe. The very reason for masking the images was that
there were no persons of sufficient similarity. When unmasked, the
procedure had necessarily failed to meet the criteria of similarity in Code
D. Moreover, the inspector had accepted that the procedure had been
unfair.
C
OMMENTARY
Code D requires the police, in the first instance, to offer a suspect a video
identification unless for any reason it is not practicable to hold one.
Where it is decided to conduct a video identification those appearing in
it must ‘so far as possible, resemble the suspect in age, height, general
appearance and position in life’ (Annex A, para. 2). Because of the
unusual appearance of the defendant in the present case the police
104
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