Callum v R

Identification evidence affected by possible post-procedure contamination is not automatically inadmissible under section 78 of the Police and Criminal Evidence Act 1984. The central question is whether the defence has a fair opportunity to test its reliability and whether the jury can safely assess the evidence with proper directions.

Where identification is the sole issue, the judge must clearly direct the jury on the risks of mistaken identification, after-acquired knowledge and the particular weaknesses of the evidence. The judge need not repeat every step of counsel’s argument if the factual issues and their significance have been fairly placed before the jury.

The appellant was convicted of murder at the Central Criminal Court and sentenced to life imprisonment with a minimum term of 19 years. The prosecution case included identification evidence from three witnesses present at the shooting.

One witness made a qualified video identification. Another did not identify the appellant at a formal procedure, but later asserted that he had known the gunman by the street name JJ. The witnesses had travelled together after the procedures, during which one said that he had identified JJ as the gunman.

The appeal challenged the admission of the qualified and later identification evidence under section 78 of the Police and Criminal Evidence Act 1984, and the adequacy of the judge’s directions on contamination and reliability.

1. Appeal dismissed. The conviction was safe. The trial judge was entitled to admit the evidence of both Halton and Temple and to leave its reliability to the jury.

2. Halton’s qualified identification was plainly relevant to the central issue. His lack of complete certainty, and the possible effect of the subsequent conversation in the car, were matters capable of being fully explored in cross-examination. They went to weight, not admissibility. The judge was not required to rehearse every stage of the defence argument, provided that the factual issues and their significance were fairly put to the jury.

3. Temple’s later assertion that he had always known the gunman’s identity was more difficult because there was a real risk that it had been influenced by after-acquired knowledge. It was nevertheless admissible. There had been no alleged breach of Code D, and the decisive question was whether the later assertion was true and reliable. The defence had the contemporaneous interviews, the evidence of the car journey, the family-liaison record and the later statement with which to test it. The jury could rationally reach different conclusions about why Temple had failed to identify the appellant at the procedure.

4. The judge’s Turnbull directions were sufficient. He identified the risk that witnesses might recognise the appellant merely as someone seen on the estate, and drew attention to the evidence bearing on contamination, trauma, delayed assertion and the failed procedure. In a case wholly concerned with identification, the jury could not have misunderstood the need for caution.

5. The lyric texts on the appellant’s telephone could support the identification evidence only if the jury accepted the prosecution’s interpretation that they disclosed an intention connected with the killing, rather than imaginative lyrics. The summing up adequately conveyed that issue.

• Court of Appeal (Criminal Division) Dismissed the appeal against conviction: [2010] EWCA Crim 1325.
• Central Criminal Court Convicted the appellant of murder before HH Judge Worsley QC and a jury, and imposed life imprisonment with a minimum term of 19 years.