Clarifying the Admissibility of E-Fit Pictures and Identification Evidence Under CJA 2003 in Thomasson & Anor v R [2021] EWCA Crim 114

Introduction

The case of Thomasson & Anor v R [2021] EWCA Crim 114 serves as a pivotal precedent in English criminal law, particularly concerning the admissibility of identification evidence and the use of E-Fit (electronic forensic identification technique) images. The appellant, Carne Thomasson, alongside Aldaire Warmington, faced serious charges including conspiracy to cause grievous bodily harm with intent and conspiracy to pervert the course of public justice. Convicted in the Crown Court at Manchester, they appealed to the Court of Appeal (Criminal Division), challenging both their convictions and the sentences imposed. This commentary delves into the intricacies of the judgment, examining the legal principles established, the precedents cited, and the broader implications for future criminal proceedings.

Summary of the Judgment

On February 21, 2019, Carne Thomasson and Aldaire Warmington were convicted in the Crown Court at Manchester of various serious offenses, including conspiracy to cause grievous bodily harm with intent and conspiracy to pervert the course of public justice. Both were sentenced to extended terms of imprisonment, reflecting the gravity of their crimes and their roles within their criminal gangs. Thomasson appealed his conviction and sentence, challenging the admissibility of identification evidence and the fairness of his sentencing. Warmington similarly appealed his sentence. The Court of Appeal dismissed both appeals, upholding the convictions and the sentences imposed. The judgment thoroughly examined the admissibility of identification evidence, especially the use of E-Fit pictures, and the application of section 78 of the Police and Criminal Evidence Act 1984 (PACE) in assessing the fairness of admitting such evidence.

Analysis

Precedents Cited

The judgment extensively referenced key legal precedents to substantiate its conclusions:

R v Turnbull and another [1977] QB 224: Established criteria for the reliability of identification evidence, particularly focusing on eyewitness testimonies.
R. (Ebrahim) v Feltham Magistrates' Court [2001] 2 Cr App R 23: Discussed circumstances under which trials might be deemed unfair due to missing evidence, emphasizing the rarity of such exclusions.
R v PR [2019] EWCA Crim 1225; Reinforced the necessity for juries to consider the absence of certain types of evidence when deliberating on a defendant's guilt.
Att.-Gen.'s Reference (No. 2 of 2002) [2002] EWCA Crim 2373; Addressed the admissibility of identification evidence derived from photographs or video footage, albeit in contexts differing from E-Fits.
R v Cook [1987] QB 417; Explored the admissibility of E-Fit pictures, distinguishing them from traditional hearsay evidence.
R v Constantinou 91 Cr App R 74; Confirmed that photofit images are considered a distinct class of evidence, exempt from hearsay rules.
Quinn [1990] Crim LR 581: Highlighted the judge's role in safeguarding the fairness of proceedings, particularly concerning the admissibility of evidence.

Notably, the judgment also engaged with statutory changes, particularly the Criminal Justice Act 2003, which modernized hearsay rules and impacted the treatment of E-Fit evidence.

Legal Reasoning

The core legal issue revolved around whether the identification evidence provided by Jayne Hickey, based on her eyewitness account and subsequent identification via an E-Fit picture, should be excluded under section 78 of PACE due to its potential adverse effect on the fairness of the proceedings.

The appellant argued that the identification was unreliable, citing inconsistencies in Hickey's descriptions and the introduction of Thomasson's photograph, which did not align with her earlier statements. Furthermore, the appellant contended that the deletion of browsing history on an iPad, which purportedly contained evidence of his recognition, undermined the credibility of her identification.

The Court of Appeal evaluated these arguments against the backdrop of established precedents and statutory provisions. It determined that while the identification evidence had potential weaknesses, these were matters properly left to the jury to assess. The court emphasized that section 78 PACE is intended to exclude evidence only when its admissibility would render the trial fundamentally unfair, typically in cases of procedural impropriety or significant prejudicial impact. In this case, the identified flaws did not meet the threshold for exclusion, as the evidence could be adequately scrutinized through cross-examination and jury deliberation.

Regarding the E-Fit picture, the judgment underscored the evolution of hearsay rules under the Criminal Justice Act 2003, which classify E-Fit images as admissible statements of fact or opinion, provided certain conditions are met. The appellant's attempt to introduce opinions of police officers regarding other gang members' resemblance to the E-Fit was deemed inadmissible as pure opinion evidence. The court clarified that such evidence, foundationally hearsay, could mislead the jury due to its cumulative and subjective nature.

On sentencing, the judgment affirmed the proportionality and appropriateness of the extended sentences, considering the defendants' roles within criminal organizations, the severity of their offenses, and their criminal histories. The court found no manifest excessiveness in the sentences, noting the alignment with sentencing guidelines and the aggravating factors present in the case.

Impact

This judgment has significant implications for the handling of identification evidence and the use of E-Fit pictures in criminal trials:

Clarification of Identification Evidence Standards: The ruling reinforces the judiciary's stance that while identification evidence must be scrutinized for reliability, not all challenges to its integrity warrant exclusion under section 78 PACE. Jurors retain the authority to assess the credibility of such evidence within the trial context.
Legal Standing of E-Fit Images: By affirming that E-Fit pictures fall within the hearsay exceptions outlined in the Criminal Justice Act 2003, the judgment delineates the boundaries of their admissibility. This provides clearer guidance for law enforcement and legal practitioners on the use of E-Fits in investigations and trials.
Sentencing Precedents: The case underscores the factors that justify extended sentences for serious offenses, particularly those involving organized crime and significant public harm. It serves as a benchmark for evaluating the appropriateness of sentences in similar cases.
Future Appeals: Courts handling future appeals will reference this judgment when assessing challenges to identification evidence and E-Fit admissibility, ensuring consistency and adherence to established legal principles.

Complex Concepts Simplified

Section 78 Police and Criminal Evidence Act 1984 (PACE)

Section 78 of PACE grants courts the discretion to exclude evidence if its admission would have an adverse effect on the fairness of the trial. This typically applies when evidence is obtained unlawfully or is inherently unreliable, potentially biasing the jury against the defendant.

E-Fit (Electronic Forensic Identification Technique)

An E-Fit is a digitally constructed facial composite based on eyewitness descriptions. It serves as a tool to aid in suspect identification, especially when traditional photographic evidence is unavailable. Unlike actual photographs or CCTV footage, E-Fits are interpretations and can be subjective, reflecting the witness's perception rather than an objective image.

Hearsay Evidence

Hearsay refers to statements made outside the courtroom that are presented to prove the truth of the matter asserted. Generally inadmissible due to reliability concerns, certain exceptions exist under statutes like the Criminal Justice Act 2003. E-Fit images, as representations based on witness testimony, can fall within these exceptions if they meet specific criteria.

Identification Evidence

This involves eyewitness testimony regarding the identity of a suspect. Its reliability can be influenced by factors such as the witness's observation conditions, time elapsed since the event, and potential suggestiveness during identification procedures.

Extended Sentences

Extended sentences are additional custodial periods imposed on offenders deemed to represent a significant risk to public safety. This is separate from the primary sentence and is intended to protect the community from individuals considered dangerous.

Conclusion

The Court of Appeal's decision in Thomasson & Anor v R [2021] EWCA Crim 114 reinforces the nuanced approach courts must take when handling identification evidence and E-Fit pictures. By upholding the admissibility of the identification evidence despite acknowledged inconsistencies, the judgment emphasizes the jury's role in evaluating witness credibility within the trial's broader evidence context. Additionally, the affirmation of E-Fit admissibility under the Criminal Justice Act 2003 delineates a clear framework for future use of such techniques in criminal investigations. On sentencing, the court's rationale underscores the importance of considering the offender's role, criminal history, and the offense's severity in determining appropriate custodial terms. Overall, this case serves as a critical reference point for legal practitioners and scholars in understanding the balance between evidence reliability and trial fairness, as well as the principles guiding sentencing in severe criminal cases.