Wroe, R. v

In an identification case, the judge must assess the quality of the evidence under the Turnbull approach. If it is poor, the case should be withdrawn unless other evidence supports the identification. Evidence is not necessarily poor because the observation occurred during a frightening attack or in imperfect conditions. A sustained close-range opportunity to see the offender may justify leaving the issue to the jury.

A conviction is not rendered unsafe merely because jurors ask to see material not admitted in evidence. The question may properly concern the reliability of the identification. A disclosure practice is rightly criticised if it obstructs access to relevant material, but unfairness requires a real deprivation of access or an identified prejudice to the defence.

The appellant was convicted at Sheffield Crown Court of aggravated burglary and sentenced to seven years’ imprisonment. The sole evidence linking him to the offence was the complainant’s identification of him at a video identification procedure four days after the attack.

He appealed against conviction on two grounds. First, he contended that the identification evidence was so poor that the judge should have upheld a submission of no case to answer under R v Turnbull [1977] QB 224. Secondly, he argued that a jury note asking to see the identification photograph showed an impermissible line of reasoning and that the non-disclosure of the video identification material deprived him of a fair trial.

1. Appeal dismissed. The identification evidence was not so poor that the trial judge was obliged to withdraw the case from the jury. The court applied the approach in R v Turnbull [1977] QB 224: poor identifying evidence, without supporting evidence, requires withdrawal; but this was not a fleeting-glance case.
2. The trial judge had carefully and fairly assessed the quality of the evidence and was better placed than the appellate court to do so. Although the attack was frightening and the conditions were imperfect, the complainant saw the appellant’s uncovered face from two to three feet away during a repeated assault. That evidence could properly be assessed by the jury, which had also received a full warning about the danger of a mistaken but convincing witness.
3. The jury’s request to see the photograph used in the video identification procedure did not show that it had pursued an irrelevant or impermissible enquiry. It was entitled to focus on the reliability of the complainant’s description, observation and subsequent identification. The judge could not provide a photograph that neither party had adduced in evidence.
4. The court deprecated the local Crown Prosecution Service’s blanket policy concerning video identification material. However, the defence had been able to view the material before trial, could have sought a production order or admissions, and could identify no significant argument or prejudice that access to the DVD would have produced. The conviction was therefore safe.
5. Obiter: once a judge makes an order, it must be complied with or challenged by appeal; correspondence seeking further representations does not displace that obligation.

• Court of Appeal (Criminal Division): Appeal against conviction dismissed: [2012] EWCA Crim 1304.
• Crown Court at Sheffield: On 28 July 2011, the appellant was convicted of aggravated burglary before Openshaw J and sentenced to seven years’ imprisonment.