Jabar, R. v

A conviction founded on a jury’s comparison of CCTV images with an accused must be safe on the quality of those images. Although a jury may undertake that comparison without expert assistance where the images are sufficiently clear, similarities in appearance do not suffice if no jury could properly be sure of identity from the footage and stills alone.

Police recognition evidence obtained after officers may have been alerted to the suspect’s identity requires particular care. The absence of a contemporaneous record may prevent reliable assessment of whether recognition was influenced by suggestion, and the jury must receive sufficient guidance on that risk.

The appellant was convicted at the Crown Court at Harrow of robbery and sentenced to four years’ detention. The central issue was whether he was the robber shown on CCTV footage in a betting shop and the victim’s block of flats. The victim’s description was consistent with him, but she did not identify him at an identification parade.

The trial judge left the jury to identify the robber by comparing the footage and still images with the appellant in court. Two police officers also gave recognition evidence after viewing the material, in circumstances where they might have been told the appellant’s name. A facial-comparison expert’s report, served on the day of trial, was excluded. The appeal challenged the safety of the conviction.

1. Appeal allowed; conviction quashed as unsafe. The CCTV footage and stills were insufficiently clear to permit a jury properly to be sure, on visual comparison alone, that the appellant was the robber. The court accepted that jurors may compare sufficiently clear images with a defendant in court, as recognised in Attorney General's Reference No 2 of 2002 [2002] EWCA Crim 2373. That principle did not make this material adequate.

2. The footage disclosed some similarities in jaw shape, cheekbones, lips, eyebrows and a cleft chin. It did not reliably show features such as hair colour, eye colour or the relevant facial hair. Having viewed the material, the arrest photograph and the appellant, the court held that no jury could properly be sure of identity from the images alone. That conclusion itself required the conviction to be quashed.

3. The court also expressed substantial concern about the police recognition evidence. It was at least possible that an officer was asked to identify the appellant after being told, or alerted to, his name; no contemporaneous record established what had occurred. The procedures later set out in Smith [2008] EWCA Crim 1342 reinforced the need for care. The court did not decide admissibility or finally resolve the adequacy of the summing-up, but doubted whether the jury had received sufficient guidance about suggestion and reliability.

4. The excluded expert report only said that facial comparison lent support to the contention that the robber and the appellant were the same person. That limited opinion further supported the court’s concern that the jury had been invited to be sure on inadequate visual material. Taken together, the matters created doubt about the safety of the conviction.

• Court of Appeal (Criminal Division): allowed the appeal against conviction and quashed the conviction as unsafe.
• Crown Court at Harrow: on 28 July 2009, convicted the appellant of robbery and imposed four years’ detention.