Ali v R

Where a jury is invited to identify a defendant from CCTV images, the trial judge must give a clear and full warning of the risk of mistaken identification and the need for particular care. A direction concerning a stranger witness's identification does not necessarily discharge that separate duty.

The safety of a conviction may be undermined where the summing-up treats a disputed identification as established, inaccurately resolves discrepancies in the identifying witness's description, and presents unqualified police recognition evidence as supporting evidence. The jury must be reminded that it must be sure before relying on image comparison, whether as the sole basis for conviction or as support for other identification evidence.

The appellant was convicted at Southwark Crown Court of robbery. He denied being present. Identity was the only issue.

The complainant made a tentative video-parade identification, but there were material inconsistencies concerning the robber's role and clothing. CCTV showed a group at railway stations. A police officer purported to recognise the appellant in one image, although he had no specialist image-comparison expertise.

At trial, the judge pressed the prosecution to adduce the CCTV evidence. In summing up, he described the person alleged to be the appellant in the footage as the defendant, treated the complainant's clothing description as otherwise accurate, and invited the jury to use its own eyes without a full warning about mistaken identification. The central question was whether those directions rendered the conviction unsafe.

1. Appeal allowed. The conviction was unsafe and was quashed. The prosecution did not seek a retrial.

2. The complainant's identification evidence required especially careful treatment. His initial video-parade identification was qualified. He had initially associated the selected person with the person who took his telephone, although that person had been described as younger, shorter and ginger-haired. The CCTV also showed another person wearing clothing capable of matching the complainant's description. The judge therefore erred in telling the jury that the description was accurate apart from the turquoise top.

3. The judge should not have referred to the disputed person in the CCTV as the defendant. That language treated the central issue as resolved. The judge also treated PC Gittings' recognition as an established fact, although the officer was not an expert and the image showed only part of the appellant's face.

4. Recognition evidence remains vulnerable to mistake. The jury needed a direction that fully explained that risk in relation to PC Gittings' evidence. No such direction was given.

5. Further, a jury invited to compare CCTV images with a defendant must be warned specifically of the danger of making a mistaken identification and of the need for particular care. The court applied the circumstances identified in AG’s Ref. (no. 2 of 2002) [2003] 1 Cr App R 21 and followed Blenkinsop [1995] 1 Cr App R 7. The judge's brief instruction not to leap to a conclusion did not provide the required warning, nor did he remind the jury that it had to be sure before relying on the images.

1. Court of Appeal (Criminal Division) — allowed the appeal and quashed the conviction: [2008] EWCA Crim 1522.
2. Crown Court at Southwark — on 13 August 2007, before HHJ G Stone QC and a jury, convicted the appellant of robbery.