Ley, R v

In an identification case, the trial judge must separately decide whether the evidence is of sufficient quality to leave to the jury and give a careful Turnbull direction tailored to the evidence at the end of the trial. There is no general rule requiring a direction that the jury must not convict on identification evidence unless it finds independent supporting evidence, even if support was material when the case was left to the jury.

The jury must assess the whole evidential picture. A summing-up must fairly and coherently identify specific weaknesses exposed in identification evidence, but need not present every point in a single exhaustive list where their cumulative effect has been adequately conveyed.

The appellant was convicted at the Central Criminal Court of aggravated burglary and sentenced to seven years’ imprisonment. The Crown case depended principally on Catherine Costello’s recognition of him during a burglary, supported by evidence concerning the disguise, his reaction when recognised, and a telephone call made by his sister the following day. The defence advanced an alibi and challenged the reliability of the recognition.

On appeal, the appellant contended that the judge should have directed the jury not to convict on the recognition evidence unless it found independent supporting evidence. He also contended that the summing-up insufficiently identified the weaknesses in the recognition evidence. The central issue was whether a Turnbull direction must include that additional prohibition.

1. Appeal dismissed. The conviction was not unsafe. The court rejected both grounds of appeal.
2. The judge performs two distinct functions in an identification case. At the close of the prosecution case, where the case depends on identification evidence alone, the judge must decide whether its quality is sufficient for the case safely to be left to the jury. When summing up, the judge must give an appropriate Turnbull direction that is tailored to the evidence as it has developed at trial.
3. R v Turnbull (1976) 63 CrAppR 132 requires withdrawal where identification evidence is of poor quality. Recognition evidence is not exempt from that principle. Familiarity between witness and suspect, and the circumstances of the observation, bear on quality. Even so, the court held that there is no general principle requiring a judge to direct a jury that it must not convict on identification evidence unless it finds independent supporting evidence.
4. It is for the jury to reach its verdict on the whole of the evidence. Defence evidence, particularly in a multi-defendant trial, may materially alter the evidential picture from that at the close of the prosecution case. Such a prohibition would have been inappropriate and unhelpful on the facts.
5. The judge gave a conventional Turnbull warning and adequately addressed the fleeting and partial nature of the observation, the pressure on the witness, and the descriptive evidence. Applying R v Fergus (1994) 98 CrAppR 313, the court held that the summing-up dealt with the specific weaknesses coherently and fairly conveyed their cumulative effect.

• Court of Appeal (Criminal Division) — dismissed the appeal against conviction: [2006] EWCA Crim 3063.
• Central Criminal Court — on 14 October 2005, convicted the appellant of aggravated burglary by a majority of 10 to 2 and sentenced him to seven years’ imprisonment. No lower-court citation was stated.