Gray, R v

Where visual identification evidence is poor, the judge must withdraw the case unless there is other evidence capable of supporting its correctness. A fleeting glance is an example of poor-quality identification, not the legal test itself. The R v Turnbull [1977] 1 Q.B. 224 approach requires an assessment of the actual quality of the observation and of any independent supporting evidence.

An identification direction must be tailored to all features bearing on reliability. A deficient direction will not make a conviction unsafe where the evidence as a whole, including compelling circumstantial evidence supporting the identification, establishes the safety of the verdict.

The appellant was convicted at the Central Criminal Court of murder and sentenced to life imprisonment with a minimum term of 17 years under section 269 of the Criminal Justice Act 2003. The prosecution alleged that he was present with two co-defendants during a fatal gang-related attack and encouraged it.

The principal evidence against him was a witness identification made at a video identification procedure. The witness had made erroneous selections of volunteers at earlier procedures. The prosecution also relied on telephone, WhatsApp and cell-site evidence said to place the appellant with his co-defendants and to support the identification.

On appeal, the appellant challenged the refusal of a submission of no case to answer and the adequacy of the identification directions in the summing up. The central issue was whether the poor identification evidence was sufficiently supported and whether any deficiency in the summing up rendered the conviction unsafe.

1. Appeal dismissed. The conviction was safe.

2. Applying R v Turnbull [1977] 1 Q.B. 224, the court held that the identification evidence was poor. It was not recognition evidence. Events were sudden and fast-moving, the witness had no particular reason to focus on the appellant, and he had made erroneous identifications at earlier procedures. A fleeting glance was not the applicable test, but only an example of poor-quality evidence.

3. Because the identification was poor, the case could only be left to the jury if other evidence was capable of supporting its correctness. The circumstantial telephone evidence was capable of doing so. It included contact and cessation of contact between the appellant and Johnson, the WhatsApp message referring to “Push”, the absence of telephone use at the material time, cell-site evidence consistent with joint travel, and the appellant’s unexplained change of telephone after the offence. The appellant’s silence in interview was also a matter the judge could consider under section 34(2)(c) of the Criminal Justice and Public Order Act 1994.

4. The trial judge adequately explained the need for special caution and did not need to use prescribed words to convey the risk of a mistaken identification. However, the summing up was deficient because it did not connect all material features of the evidence to the reliability of the identification. In an identification case, the judge must identify all matters relevant to the jury’s cautious approach, including the circumstances of observation and their effect on accuracy.

5. The deficiencies did not render the verdict unsafe. The jury were entitled to treat the circumstantial evidence as materially supporting the identification, to reject the co-defendant’s account, and to draw the strong inference from the appellant’s unexplained alteration in mobile telephone use. The totality of the evidence established the safety of the conviction.

• Court of Appeal (Criminal Division): dismissed the appellant’s appeal against conviction, holding that the conviction for murder was safe.
• Central Criminal Court: on 10 May 2017, HHJ Moss QC convicted the appellant of murder and imposed life imprisonment with a 17-year minimum term under the Criminal Justice Act 2003.