Gardner, R v

Expert evidence interpreting CCTV footage may be admissible even where the expert has used laboratory equipment and examined material in a way that cannot be replicated before the jury. The relevant images are the underlying CCTV footage, not every enhanced display used by the expert. The expert may express an opinion on identification, but the jury must receive clear warnings about the limits of subjective probability evidence and poor-quality imagery.

A dock identification remains exceptional. It may nevertheless be permitted as an exercise of judicial discretion where the evidence is one of genuine recognition, the witness would identify the accused by any proper procedure, and an alternative procedure has become impracticable. The overriding question is whether any asserted irregularity renders the conviction unsafe.

The appellant was convicted of manslaughter at Stafford Crown Court after a fire in a block of flats caused a resident’s death. The prosecution alleged that he had deliberately started the fire. Identity was a central issue.

On appeal, the appellant challenged the admission of an expert’s CCTV-comparison evidence and a witness’s identification of him in the dock. He contended that the defence had lacked an effective opportunity to test the expert’s laboratory-based analysis, and that the dock identification was unfair. He also sought to adduce fresh evidence from a hotel visitors’ book.

The central question was whether those matters created an irregularity or unfairness such that the conviction was unsafe.

1. Appeal dismissed. Neither the CCTV evidence nor the dock identification undermined the safety of the conviction. Permission to admit the proposed fresh evidence was also refused.

2. The court held that the expert CCTV evidence was admissible. R v Briddick [2001] EWCA Crim 984 confirmed that this type of evidence could be received. There was no rule that an expert could only identify similarities and leave all evaluative opinion to the jury. The court explained that the requirement, stated in Attorney General’s Reference (No 2 of 2002) [2002] EWCA Crim 2373, that images be available to the jury meant the underlying CCTV footage. It did not require the jury to see every laboratory display or to reproduce the expert’s technical examination.

3. The court nevertheless stressed the need for caution. The trial judge had properly warned the jury that the footage was of poor quality, that the expert’s conclusions could not be objectively tested in the manner of a mathematical exercise, and that an honest expert might be mistaken. The defence had received the expert’s report in advance and could have inspected the laboratory material or sought an adjournment. Its failure to do so did not establish inequality of arms, unfairness, or a trial irregularity.

4. A dock identification is highly unusual, but it is available in a proper recognition case. The trial judge was entitled to conclude that the witness knew and would recognise the appellant through repeated earlier encounters. By the time the witness gave evidence, another identification procedure was impracticable. The identification therefore did not create unfairness; the real issue for the jury was whether the witness was truthful about the alleged conversation.

5. The visitors’ book evidence was not admitted. There was no satisfactory explanation for failing to produce it at trial, and its apparent probative value was doubtful.

• Court of Appeal (Criminal Division) — The appeal against conviction was dismissed: [2004] EWCA Crim 1639.

• Crown Court at Stafford — Before Sir Edwin Jowitt, sitting as a High Court judge, the appellant was convicted of manslaughter and sentenced to seven years’ imprisonment.