Attorney General Reference No 2 of 2002

Factual and Procedural Background

The opinion concerns a reference made under section 36 of the Criminal Justice Act 1972, wherein the Attorney-General seeks the Court's guidance on evidentiary issues relating to photographic images from the scene of an offence. The case arose from an indictment against Defendant for riot, contrary to the Public Order Act 1986. A video recording of the incident was presented, though of suboptimal quality. The Crown relied on two police officers to identify Defendant as one of the persons depicted in the video.

The first officer, Witness D, was part of a police video viewing team and had spent extensive time analysing the footage, acquiring specialist knowledge that enabled him to identify Defendant despite not knowing him personally. His evidence was admitted without objection.

The second officer, Police Constable G, had known Defendant personally for about five years. After viewing the video under controlled conditions, he identified Defendant as one of the rioters. However, immediately before his testimony, the trial judge ruled that such recognition evidence from a witness without special skills was inadmissible where the jury could themselves view the video and compare it with Defendant in the dock. The judge excluded Police Constable G's identification evidence on the basis that it was of "very light weight" and that the jury was better placed to make the identification.

Further evidence from Police Constable G was also excluded due to its late submission and inability of the defence to respond. Consequently, at the close of the prosecution case, the judge directed a verdict of not guilty for insufficiency of evidence on identity.

Legal Issues Presented

1. Whether identification evidence by way of recognition from a witness who knows the defendant but was not present at the scene, and who identifies the defendant from a video film, is inadmissible solely because the jury can view the film themselves and compare the images with the defendant in the dock.
2. The admissibility criteria for recognition evidence in the context of video or photographic evidence where the witness has special knowledge acquired through extensive viewing and analysis.
3. The role of expert evidence in identification based on photographic or video images compared to the defendant.

Arguments of the Parties

Attorney-General's Arguments

• The trial judge erred in ruling Police Constable G's recognition evidence inadmissible by failing to distinguish between the witness and the jury.
• The judge introduced inappropriate tests regarding admissibility, particularly the erroneous notion that if the video film is available, recognition evidence is inadmissible.
• The judge misapplied the precedent in Clare & Peach by requiring special skill or knowledge for recognition evidence when the witness knows the defendant personally.

Defence and Trial Judge's Position

• Both the trial judge and defence counsel accepted that the judge's ruling excluding Police Constable G's recognition evidence was incorrect.
• The judge took the initiative in excluding the evidence rather than acting on defence submissions.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court analysed the admissibility of recognition evidence in the context of photographic or video images of offences. It identified four categories of admissible evidence:

1. Where the photographic image is sufficiently clear, the jury may compare it directly with the defendant (Dodson & Williams).
2. Where a witness personally knows the defendant well enough to recognise them in the image, such recognition evidence is admissible (Fowden & White, Kajalave v Noble, Grimer, Caldwell & Dixon, Blenkinsop), even if the image is no longer available to the jury (Taylor v The Chief Constable of Chester).
3. Where a witness who does not know the defendant acquires special knowledge through prolonged viewing and analysis of the images, they may give identification evidence based on comparison with a photograph, provided the images and photograph are available to the jury (Clare & Peach).
4. Expert witnesses with appropriate qualifications may give opinion evidence based on facial mapping comparing images and photographs (Stockwell, Clarke, Hookway).

The Court rejected the trial judge's ruling that recognition evidence is inadmissible merely because the jury can view the video themselves. The Court emphasised that recognition evidence by a witness who knows the defendant is prima facie admissible and should generally be admitted, subject to the trial judge's discretion to exclude if prejudicial. The Court stressed the advantages that such witnesses have over the jury, including prior knowledge and independent, spontaneous recognition.

It was further clarified that Clare & Peach does not require special knowledge for witnesses who personally know the defendant, and that the trial judge’s application of this principle was incorrect.

Holding and Implications

The Court answered the first question posed by the Attorney-General in the negative: recognition evidence from a witness who knows the defendant and identifies them from a film is not inadmissible simply because the jury can view the film themselves.

The decision directly overturns the trial judge’s exclusion of Police Constable G’s recognition evidence on that basis. The ruling clarifies the proper legal framework for the admissibility of recognition evidence in cases involving photographic or video images, reinforcing that such evidence is prima facie admissible and subject to judicial discretion.

No new precedent was established beyond the clarification and reaffirmation of existing principles. The immediate effect is that recognition evidence from witnesses who know the defendant should not be excluded solely due to the availability of video evidence for the jury’s own viewing.