R v Joel Wilkie

An adequate Turnbull direction must identify the case-specific features capable of weakening identification evidence and enable the jury to understand why those features bear on reliability. The effect of an alleged omission depends on the whole trial context, including the complexity of the case, the importance and strength of the identification, the undermining points, and the timing of the directions.

A judge need not give an elaborate explanation of an obvious risk where the evidence and issue are simple, recent and clearly explored before the jury. A collateral error by a witness, unconnected with the identification of the accused, need not be highlighted in a Turnbull direction.

The appellant was tried in the Crown Court at Isleworth for wounding with intent under section 18, with unlawful wounding under section 20 as an alternative, of the Offences Against the Person Act 1861. The jury acquitted him of the section 18 count but convicted him of unlawful wounding. He was sentenced to two years and six months’ imprisonment.

His defence was mistaken identity. He appealed against conviction, contending that the judge’s Turnbull direction inadequately addressed the risk that the complainant’s viewing of social-media photographs had affected her later identification. He also relied on her temporary belief that she recognised a juror. The central issue was whether those alleged omissions rendered the conviction unsafe.

1. Appeal dismissed. The conviction was safe. The judge correctly identified identification as the central issue, gave the caution required by Turnbull [1976] 63 Cr.App.R 132, explained the general risk of mistake, and drew attention to relevant specific weaknesses. An adequate direction must identify features capable of undermining identification evidence and ensure that the jury understand why they may matter.

2. The court accepted that a judge could have explained more fully the risk arising where a witness has seen a suspect’s photograph before a formal identification procedure. As explained in R v Phillips [2020] EWCA Crim. 126, the risk is that the witness identifies the person shown in the photograph rather than the offender. However, the risk was plain in this short and simple trial. It had been squarely explored with the complainant in cross-examination, the evidence was recent, and the judge reminded the jury of the social-media photograph shortly before summarising the evidence. The jury would have understood the point without a further explanation.

3. The adequacy and significance of any gap in a Turnbull direction are context-specific, as R v Sabir (Imran) [2023] EWCA Crim 804 confirms. Relevant matters included the narrow issue, the limited evidence, the opportunity given to counsel to comment on the draft directions, and the absence of any contemporaneous complaint. A fuller direction might also have required balanced reference to evidence capable of supporting the identification, including the appellant’s interview lie if the jury rejected an innocent explanation for it.

4. The complainant’s tentative and promptly withdrawn belief that she knew a juror was a collateral matter. It was not part of the process by which she identified the appellant and had no direct or close comparison with her swift, confident and consistent identification of him. Counsel could rely on it, but the judge was not required to emphasise it in the legal directions.

• Court of Appeal (Criminal Division): The appeal against conviction was dismissed: [2024] EWCA Crim 741.
• Crown Court at Isleworth: The jury acquitted the appellant of wounding with intent contrary to section 18, but convicted him of unlawful wounding contrary to section 20, of the Offences Against the Person Act 1861. He was sentenced to two years and six months’ imprisonment.