McCullough, R. v

Identification evidence is not rendered inadmissible merely because a witness first identified a suspect through an informal Facebook search. Even where the precise material viewed cannot be produced and the process may affect a later formal identification, the evidence may fairly be left to the jury if its weaknesses can be fully explored and assessed.

A trial judge need not repeat every evidential detail in summing up where counsel have recently addressed the evidence and the jury have heard it over a short trial. The summing up must nevertheless address the central issues and give an adequate warning on identification evidence.

The appellant was convicted at Liverpool Crown Court of two robberies and two offences of having an offensive weapon. The prosecution alleged that he was involved in the taking of two off-road motorcycles.

A complainant had first viewed photographs on Facebook after receiving information from a third party. He later selected the appellant in a formal video identification procedure. The appellant challenged the admission of that evidence, contending that the Facebook search was unreliable and had contaminated the formal identification. He also alleged deficiencies in the judge’s summing up.

The central issue was whether the informal Facebook identification made the identification evidence too unsatisfactory or unfair to be left to the jury.

1. Appeal dismissed. The judge was entitled to admit the complainant’s identification evidence. The Facebook search was plainly far from ideal and was capable of affecting the weight of the later formal identification.

2. The deficiencies did not, however, make the evidence inadmissible or require exclusion in the interests of fairness. They included the absence of the Facebook material itself, uncertainty about the entry and photograph viewed, and the witness’s refusal to provide further details. Those matters, together with the other alleged inconsistencies, were matters of weight which could be explored before the jury.

3. The appellant could rely on those deficiencies in challenging reliability. The jury could assess them alongside the unchallenged evidence placing the appellant with the co-accused in the vicinity of the incident. It was therefore fair to leave the identification evidence to the jury.

4. The summing up did not undermine the safety of the convictions. In a short trial, after recent speeches by counsel, the judge could concentrate on the main features rather than rehearse all the evidence. The judge dealt satisfactorily with the substance of the identification evidence and gave an unchallenged, appropriate warning that the jury should exercise care.

• Court of Appeal (Criminal Division): dismissed the appeal against conviction in [2011] EWCA Crim 1413.
• Liverpool Crown Court: convicted the appellant, after a jury trial, of two counts of robbery and two counts of having an offensive weapon.