4. Analysis
4.1 CCTV Identification and Ad Hoc Expertise
The usual rule is that witnesses give evidence of facts rather than opinions. Expert opinion is admissible where the subject requires knowledge or experience beyond that ordinarily possessed by a jury. CCTV cases have, however, developed a category of “ad hoc” expertise: a witness may acquire special knowledge through prolonged and careful examination of admissible footage.
This authority recognised that a witness unfamiliar with a defendant may identify that person after spending substantial time analysing images, provided the relevant images and comparison photographs are available to the jury. The Court used this principle to support the analyst’s ability to explain conclusions derived from more than 200 hours of viewing.
R v Clare and Peach [1995] 2 Cr App R 333
In this case, prolonged study of video footage was held to confer special knowledge which could assist the jury. Lord Taylor CJ stressed that evidential practice must develop alongside technology, while courts remain vigilant against unfairness. The present Court treated that reasoning as supporting, rather than undermining, the analyst’s use of better viewing equipment.
R v Yaryare and Others [2020] EWCA Crim 1314
This decision involved extensive viewing on equipment ranging from ordinary laptops to “high tech machines”. It reinforced that the use of superior equipment does not itself make the resulting evidence unfair, especially where the relied-upon imagery is produced at trial, the defence receives disclosure and expert rebuttal remains possible.
The decisive safeguards were that the analyst had not seen different or undisclosed footage; the jury had access to the same underlying images; the defence could cross-examine him; and the judge repeatedly directed the jury that identification was ultimately its responsibility. The jury was expressly warned not to use the evidence if it considered the images too poor for reliable comparison.
4.2 Bad Character: Statutory Framework
Sections 98, 101, 102, 103 and 112 of the Criminal Justice Act 2003 governed the applications. “Bad character” includes evidence of offences or other reprehensible behaviour, even without a conviction.
Two gateways were relied upon:
- Gateway (c): important explanatory evidence—without it, the jury must find it impossible or difficult properly to understand other evidence, and its explanatory value must be substantial.
- Gateway (d): an important matter in issue—including a relevant propensity to commit offences of the kind charged.
Even where gateway (d) is satisfied, section 101(3) requires exclusion if admission would have such an adverse effect on fairness that the evidence ought not to be received.
Hanson requires judges to warn juries against over-reliance on bad character, using it to bolster a weak case, or treating previous misconduct as proof of guilt. It also confirms that one earlier event can establish propensity if sufficiently probative, particularly where it is strikingly similar.
The trial judge’s directions substantially complied with Hanson: the jury was told that the character evidence could not be the sole or main basis of conviction. Nevertheless, a correct warning could not make irrelevant evidence relevant.
Mitchell establishes that, where several incidents are relied upon, each need not first be proved separately beyond reasonable doubt. The jury must consider the evidence as a whole and decide whether propensity is established to the criminal standard. The present case, however, turned primarily on whether the earlier incidents had genuine probative relevance to the disputed issues.
4.3 The Palmprint on the Machete
The Court upheld admission of the first appellant’s palmprint on a machete found in a stolen vehicle. The allegation was not that he had been proved guilty of possessing an offensive weapon. Rather, the undisputed palmprint could support an inference that he had willingly handled a weapon not ordinarily handled by members of the public.
That inference had some relevance to the central allegation that he had accepted and used a large knife during the chase. The jury was also told that the palmprint did not prove he had ever been inside the Mercedes and might have been placed on the weapon earlier.
The late application was permitted as an exercise of the judge’s case-management powers. The ruling should not, however, be read as approving late service generally. Its fairness depended on the absence of a genuine dispute over the palmprint’s attribution and the judge’s assessment of the practical consequences for the defence.
4.4 The Stolen-Audi Evidence
The Court held that evidence of the appellants having previously travelled together in a recently stolen Audi was wrongly admitted.
It did not satisfy gateway (c). The murder case was readily comprehensible without it: the issues concerned who was present during the chase and whether each defendant intentionally assisted or encouraged the attack. Evidence is not “important explanatory evidence” merely because it provides background or shows association.
Nor did gateway (d) apply. The first appellant accepted that he had travelled in a stolen vehicle on the day of the killing. The contested issue was whether he remained present and received the knife. As to the second appellant, a previous presence in a stolen car did not establish a relevant propensity to participate in a murderous joint enterprise or prove that he drove the pursuing BMW.
The ruling confirms that superficial factual similarity—such as the repeated presence of stolen, high-value cars—is insufficient unless it bears materially on a live issue. Bad character cannot be used simply to make an otherwise weak identification or participation case appear stronger.
4.5 Different Consequences for the Two Appellants
Although the same Audi evidence was wrongly admitted against both appellants, the consequences differed because safety is assessed in the context of the entire case.
Against the first appellant, there was extensive independent evidence: his admitted earlier presence in one BMW, cell-site material, DNA linking him to the other BMW, the CCTV analyst’s identification, use of his telephone to arrange a taxi, the taxi route and his subsequent flight. The wrongful evidence was therefore not sufficient to make his conviction unsafe.
The case against the second appellant was materially weaker. It depended on circumstantial evidence capable of innocent explanation. He was not directly identified; his DNA could have been deposited in the BMW at another time or indirectly; and the cell-site evidence located a telephone rather than its user. The jury’s acquittal of a co-defendant facing substantially similar evidence strengthened the concern that the inadmissible bad character evidence may have made the decisive difference.
4.6 No Case to Answer and Joint Enterprise
R v Galbraith [1981] 1 WLR 1039
Galbraith requires a judge to stop a case where there is no evidence or where the prosecution evidence, taken at its highest, could not support a conviction by a properly directed jury. Where the strength of the evidence depends on questions of reliability or competing factual inferences, the matter ordinarily remains for the jury.
Applying that test, the trial judge was entitled to reject the second appellant’s submission of no case to answer. His DNA was found on the indicator control of the alleged vehicle; his telephone was linked to relevant locations; his prepared statement did not mention the later explanation that he had sold the phone; and the CCTV analysis supported an inference that he had been the driver.
A driver who knowingly participates in a concerted, high-speed pursuit while an armed associate leaves the vehicle to chase the target may intentionally assist or encourage the attack. A prior plan is unnecessary: the necessary intention may arise during the incident.
Importantly, the existence of a case to answer did not establish that the eventual conviction was safe. The Galbraith threshold asks whether a jury could convict on one reasonable view of the evidence. Appellate safety asks whether the conviction actually reached can safely stand after taking account of trial errors.
4.7 Judicial Comment on the Identification Evidence
The first appellant challenged the judge’s observation that “jackets don’t kill people, people do”, arguing that it belittled discrepancies in the clothing shown on CCTV. The Court rejected the complaint.
The remark was treated as permissible comment rather than a legal direction. The jury had repeatedly been told that factual assessment was exclusively its function and had specifically been directed to consider differences between the clothing and the quality of the images.