McGill, R. v

A failure by police or prosecutors to preserve material concerning an initial identification does not automatically require a stay for abuse of process. Where there is no bad faith and a properly directed jury can fairly assess both the disadvantage to the defence and the reliability of the identification, the trial may proceed.

An identification made through social media does not itself invalidate a later identification procedure. The police and prosecution should preserve the available images and obtain evidence of how the initial identification occurred. A summing-up need not reproduce the conventional Turnbull warning verbatim if, read as a whole, it adequately warns the jury that an honest witness may nevertheless be mistaken.

McGill and Alexander appealed against convictions arising from a robbery on 15 July 2011. The complainant had identified both men by viewing Facebook photographs with his sister on the following day. He later identified them in VIPER procedures. The police and prosecution had failed to retain or obtain the Facebook material that would have shown how the initial identifications were made.

The Recorder of Middlesbrough refused an application to stay the proceedings for abuse of process and the appellants were convicted. Alexander also challenged a conviction arising from a separate robbery and attempted robbery on 30 July 2011. Both appellants challenged their sentences. The principal issue was whether the disclosure failures and the directions on identification had rendered the convictions unsafe.

1. The appeals against conviction were dismissed. The serious failures by the police and CPS to preserve or obtain the Facebook material had caused real disadvantage to the defence. Nevertheless, the Recorder was entitled to find that there had been negligence rather than bad faith and that the trial process could cure the disadvantage.
2. The original Facebook viewing was the material identification event. A social-media identification does not, however, prevent a prosecution based on identification from proceeding. The jury had a detailed account of how the identifications had been made and were clearly informed that the relevant photographs were unavailable. They could therefore assess the resulting weakness in the evidence fairly.
3. The Recorder’s directions sufficiently addressed the identification issue. There was no evidential basis for a warning that the complainant had been prompted by his sister. A warning about potentially unfavourable Facebook images would itself have been prejudicial. The jury plainly knew that they did not know which image the complainant had first seen.
4. The Recorder did not use the customary words from Turnbull that an honest and convincing witness may be mistaken. That omission was regrettable. However, his repeated warnings about the possibility of mistake meant that the summing-up, read as a whole, contained no material misdirection and did not render the convictions unsafe.
5. The court refused Alexander permission to appeal his separate conviction. The challenge based on alleged inconsistencies in the identifying witness’s evidence disclosed no basis for treating that conviction as unsafe.
6. The sentence appeals were allowed in part. Applying totality, Alexander’s overall term was reduced from 12 to 10 years by reducing the sentence for the later offences from seven to five years. McGill’s sentence for the knife-point robbery was reduced from seven to six years. The convictions otherwise stood.

• Court of Appeal (Criminal Division) — By [2012] EWCA Crim 2768, dismissed the appeals against conviction, refused Alexander permission to appeal his separate conviction, and allowed the sentence appeals only to reduce the terms imposed.
• Crown Court at Middlesbrough — Before HH Judge Fox QC and a jury, convicted the appellants of robbery arising from the incident of 15 July 2011. Alexander was also convicted in connection with the later incident. The Recorder refused an abuse-of-process application founded on failures to preserve Facebook identification material.