Jason Lawrence v The Queen

A conviction may be unsafe where a trial judge admits a first-time dock identification but gives only a standard eyewitness-identification direction. If admitted, the jury must receive a separate warning about the dangers of dock identification, particularly the lost opportunity for an inconclusive identification parade and the risk of influence from the accused’s position in the dock. Where important confession evidence comes from a witness who may have an improper motive, the judge must fairly identify the risk and the circumstances supporting it. The warning must be tailored to the case. Such failures are not minor where identification and confession evidence are central, and the proviso cannot save the conviction unless guilt would inevitably have been found.

The appellant was convicted of murder in the St Elizabeth Circuit Court in Jamaica and sentenced to life imprisonment, with parole unavailable for twenty years. The Court of Appeal of Jamaica dismissed his appeal against conviction and affirmed the sentence on 21 November 2008. The Privy Council later granted permission to appeal.

The prosecution relied on eyewitness evidence, including two witnesses who identified the appellant in the dock after failing to identify him at identification parades. It also relied on an alleged confession reported by the younger brother of the appellant’s co-accused. The central issues were whether the judge failed to warn the jury adequately about dock identification and whether he failed to present fairly the possible improper motive affecting the confession evidence. The Board also considered challenges concerning good character, hearsay, jury communications, alternative defences and counsel’s alleged incompetence.

Appeal allowed. Lord Hodge delivered the judgment of the Board.

1. Dock identification. A first-time identification in the dock is not automatically inadmissible merely because no identification parade took place. If admitted, however, the judge must warn the jury with particular care about the disadvantages of dock identification. Those include the lost opportunity to rely on an inconclusive parade and the risk that a witness may assume that the person in the dock is the offender. A standard direction under R v Turnbull [1977] QB 224 does not address these separate dangers. The Board relied on the approach in Holland v H M Advocate [2005] UKPC D1 and Tido v The Queen [2012] 1 WLR 115.
2. Improper motive and confession evidence. A warning is required where the evidence, including surrounding circumstances, supports the possibility that a witness’s evidence is tainted by an improper motive. The test is not confined to accomplices or witnesses of bad character. The direction should be clear and adapted to the circumstances, rather than formulaic. The judge should have addressed the appellant’s denial that he spoke to anyone after the incident, the witness’s relationship with the co-accused, his possible interest in protecting his brother, and the significance of those matters when assessing the alleged confession. Consistency with other evidence would not have removed the need for that warning.
3. Other challenges. The judge was not generally obliged to give a good-character direction where counsel had not raised the matter. The hearsay statement by the co-accused was admissible only against him, and the direction excluding it against the appellant was adequate. The judge’s method of investigating alleged communications between jurors and the appellant’s family was inappropriate, but caused no prejudice. Directions on self-defence and provocation were permissible on the evidence. Allegations of counsel’s incompetence raised for the first time before the Board were not entertained.
4. Disposition. The errors concerning dock identification and the confession could not be treated as minor. The Board was not satisfied that the jury would inevitably have convicted without them. The conviction was therefore unsafe. The Board advised that the appeal be allowed, the conviction quashed and the case remitted to the Supreme Court of Judicature for a retrial. The appellant was to remain in custody pending retrial, subject to applying for bail. At any retrial, the prosecution should not invite the two witnesses to make dock identifications.

• Privy Council: [2014] UKPC 2 allowed the appeal, quashed the conviction and remitted the case for retrial.
• Court of Appeal of Jamaica: dismissed the appeal against conviction and affirmed the sentence on 21 November 2008.
• St Elizabeth Circuit Court, Black River: convicted the appellant of murder on 27 October 2005 and imposed life imprisonment with a twenty-year minimum period before parole.