Mulgrew, R. v

Expert facial-comparison evidence which establishes only general similarities and an inability to exclude a suspect does not corroborate a witness’s recognition where the witness genuinely identifies the suspect from an image. A direction that such evidence provides limited support may mislead the jury and render the conviction unsafe.

Recognition evidence from a still image may nevertheless be sufficient to leave the case to the jury where the witness had regularly known the suspect and had a proper opportunity to examine the image. A prior identification procedure in which that witness merely selects the person already recognised adds nothing and requires an appropriate warning.

The appellant was convicted of robbery after a police officer identified him from a CCTV still. The officer had known him through regular face-to-face contact some two years earlier. Neither the victim nor another eyewitness made an identification.

A facial-mapping expert could not exclude the appellant, but described the similarities as general and the support for an assertion of identity as weak. The Recorder directed the jury that this evidence gave limited support to the officer’s recognition. The officer had also viewed a VIPER compilation after making that recognition.

On appeal, the central issues were whether the expert evidence could properly be treated as corroborative, whether the recognition evidence was sufficient to leave to the jury, and whether the conviction was unsafe.

1. Appeal allowed. The conviction was quashed as unsafe. A fresh indictment was directed and a retrial for robbery ordered.

2. The decisive issue was the police officer’s recognition of the appellant from the CCTV still. The facial-mapping evidence did not support that recognition. It established only that the appellant could not be excluded and that there were general similarities, while acknowledging that another person with similar features could have been the offender. Where the officer honestly believed that he had recognised the person in the image, those general similarities added nothing to his evidence.

3. The Recorder’s repeated direction that the expert evidence gave some limited support to the officer’s recognition was therefore wrong. Although the Recorder was not to blame for accepting the prosecution’s submission, the direction could have led the jury to treat the expert evidence as corroboration. That was a significant error and made the guilty verdict unsafe.

4. The court rejected the separate submission that the officer’s recognition evidence should not have been left to the jury under the R v Turnbull guidelines. The officer had known the appellant through regular conversations, had ample opportunity to examine the still, and had no reason to anticipate that the image depicted him. His evidence was capable of being powerful recognition evidence and could properly be considered by a jury without expert support.

5. The VIPER viewing added nothing because the officer was merely selecting a person he had already recognised. The jury should have been warned accordingly. That omission alone would not have made the verdict unsafe, but it reinforced the need to quash the conviction in combination with the erroneous expert-evidence direction.

• Court of Appeal (Criminal Division): By [2008] EWCA Crim 1375, allowed the appeal, quashed the robbery conviction, directed a fresh indictment and ordered a retrial.
• Crown Court: The appellant was convicted of robbery before the Recorder. No citation is stated in the judgment.