Dock Identification and Identity Parades
First published in the Criminal Law & Justice Weekly (2011) 175 JPN 641.
The Privy Council, in Tido v The Queen, post, has recently reviewed the law on the admissibility of dock identification and emphasised the need for the trial court to consider why the accused had not participated in an identity parade. Where does this leave prosecutions brought by enforcement agencies which do not have the power to require suspects to take part in identity parades?
Tido v The Queen
Tido v The Queen [2011] UKPC 16, was an appeal by Mr Tido against the dismissal, by the the Court of Appeal of the Bahamas, of his appeals against his conviction for murder and against his sentence to death. His submissions against conviction were that the trial judge should not have permitted a dock identification by a witness, W, or, alternatively, that the judge's directions to the jury about such identification were deficient.
The murder victim, V, was 16. She was found dead in a quarry pit with severe head injuries. V's mother had awoken to find V missing. The family's telephone showed that a call had been received from Mandingo's Restaurant at 1:20 am. The prosecution alleged that Tido had telephoned V from Mandingo's at 1:20 am and that V went out to meet him. W worked at Mandingo's and her evidence was that Tido had used the restaurant telephone at that time and that she heard him give his name as "Scum". She heard him say he would be driving a white truck and he said: "Come outside; I'm coming for you". W had been about five feet from the telephone and the call lasted two or three minutes. She saw Tido leave and jump into a "Chevy" truck. W identified Tido to the police the following day. She had seen him at the restaurant a couple of times before but only for ten or twenty seconds. Almost four years later, W was permitted to make a dock identification of Tido. Other evidence included that Tido had borrowed a white Chevrolet truck on the night of V's death and that V's blood was found on the passenger door panel. Tido admitted knowing V and being in possession of the truck. Another witness said Tido was known as "Scum".
The judgment of the Privy Council was delivered by Lord Kerr who said: "... it is important to make clear that a dock identification is not inadmissible evidence per se and that the admission of such evidence is not to be regarded as permissible in only the most exceptional circumstances. A trial judge will always need to consider, however, whether the admission of such testimony, particularly where it is the first occasion on which the accused is purportedly identified, should be permitted on the basis that its admission might imperil the fair trial of the accused. Where it is decided that the evidence may be admitted, it will always be necessary to give the jury careful directions as to the dangers of relying on that evidence and in particular to warn them of the disadvantages to the accused of having been denied the opportunity of participating in an identification parade, if indeed he has been deprived of that opportunity. In such circumstances the judge should draw directly to the attention of the jury that the possibility of an inconclusive result to an identification parade, if it had materialised, could have been deployed on the accused's behalf to cast doubt on the accuracy of any subsequent identification. The jury should also be reminded of the obvious danger that a defendant occupying the dock might automatically be assumed by even a well-intentioned eye-witness to be the person who had committed the crime with which he or she was charged. ... The Board does not consider that this was a case where the judge was bound to have concluded that the admission of the dock identification of [Tido] by [W] would result in an unfair trial to the accused. But the discretion to admit the evidence must be exercised in light of the particular circumstances of the individual case. Relevant circumstances will always include consideration of why an identification parade was not held. If there was no good reason not to hold the parade this will militate against the admission of the evidence. Conversely, if the defendant resolutely resists participation in an identification parade, this may be a good reason for admitting the evidence. In England and Wales and in Northern Ireland, various means have been devised whereby identification of accused persons by witnesses before trial can take place even where they are unwilling to participate in a formal parade. On that account, dock identifications in those jurisdictions are rare."
On the facts of the instant case, Lord Kerr said that there had been a failure of the trial judge to address or even consider why an identification parade had not been held. That meant that there had not been a proper exercise of her discretion. Had those issues been addressed, it was possible that the dock identification could have been properly allowed, but as they were not, its admission in evidence could not be upheld. However, as the Privy Council considered that "a finding of guilt was inevitable", regardless of whether there had been a dock identification, it concluded that there had been no miscarriage of justice and Tido's appeal against conviction was dismissed.
It is clear from Tido that a major question which a court must always consider before allowing a dock identification is why there was no identity parade. But, what if the prosecution is brought by an enforcement agency which has no power of arrest and hence no power to require a suspect to submit to an identity parade? On the face of it, that would be a good reason for there being no identity parade and so should weigh in favour of a dock identification. Such a situation arose some sixteen years earlier in North Yorkshire Trading Standards Department v Williams (1995) 159 JP 383.
Continued in Part 2.