Moss, R v

Recognition evidence from a witness who knows a defendant may be admitted to identify a person shown on CCTV, provided the jury can properly assess its reliability and receive clear warnings about the dangers of visual identification. Formal safeguards for police viewing exercises are important, but an informal recognition does not require slavish compliance with formal record-keeping procedures. The judge should exclude evidence which the jury cannot reliably assess or which is clearly unsatisfactory. Otherwise, reliability and credibility are ordinarily matters for the jury.

A CCTV still may also be used by the jury for its own comparison, subject to an adequate warning. Whether there is a case to answer depends on the nature and quality of the prosecution evidence as a whole.

The appellant was convicted unanimously of burglary at the Crown Court at Southampton. The prosecution alleged that he was one of the men recorded breaking into a Co-op store and stealing cigarettes. Its identification evidence included CCTV footage, a still image, and recognition evidence from PC Osmond, who said he recognised the appellant when he saw the footage.

The appellant relied on an alibi. At trial he sought exclusion of the officer's evidence under Police and Criminal Evidence Act 1984, section 78. The judge refused that application and rejected a submission of no case to answer. The appeal challenged both rulings and, additionally, the jury's receipt of a CCTV still image.

1. Appeal dismissed. The conviction was safe. The officer's recognition evidence was admissible and the prosecution evidence was sufficient to leave the case to the jury.

2. Attorney General's Reference No 2 of 2002 [2002] EWCA Crim 2373 established in principle that a witness who knows a defendant may give recognition evidence from a photographic image, subject to the judicial discretion to exclude and appropriate jury directions. That principle applied to the officer's recognition of the appellant from CCTV.

3. The guidance in Dean Smith [2008] EWCA Crim 1342 concerned a relatively formal police viewing procedure. Similar safeguards and good records are important in such exercises, but the governing question is whether the evidence enables the jury to assess the reliability of the claimed recognition. An informal recognition does not demand the same formal record keeping. The judge should exclude evidence that cannot be properly assessed or is clearly unsatisfactory, such as where the image is too poor or distinguishing features are concealed. In other cases, the jury decides reliability after hearing the evidence.

4. PC Osmond could explain the circumstances of the viewing, his prior contact with the appellant, the features on which he relied, his report to a superior, and his later notebook entry. Those matters supplied a proper basis for the jury's assessment. The judge correctly exercised the discretion under section 78 of the Police and Criminal Evidence Act 1984 by admitting the evidence and gave full warnings about the risks of recognition evidence.

5. The CCTV still was properly available for the jury's own assessment, subject to the clear warning given about photographic identification. The recognition evidence was evidentially separate from the CCTV material and could support the jury's assessment. Having regard to the whole of the evidence, there was a case to answer.

• Court of Appeal (Criminal Division) ([2011] EWCA Crim 252): dismissed the appeal against conviction and held that the conviction was safe.
• Crown Court at Southampton: on 26 August 2009, convicted the appellant unanimously of burglary. On 10 September 2009, imposed a suspended sentence order.