Verification of Photographs.
Is a photograph only admissible in evidence if produced by the person who took the negative? First published in the Solicitors Journal (1981) 125 Sol Jo 346. Reproduced in the British Journal of Photography (1981) 128 BJP 746.
Photographs, in common with plans, maps and charts, fall into the category of “secondary real evidence”. As such, a photograph is generally admissible in civil or criminal proceedings where it is not possible to produce in court the subject which it depicts, either because it is not physically or otherwise possible to bring that subject matter into the confines of the courtroom or because the subject is no longer as it was when the photograph was taken.
The admissibility of photographs is essentially governed by the common law. There are, however, some statutory provisions which ought to be noted and these are dealt with here albeit extremely briefly.
“Document”
For the purposes of the Criminal Evidence Act 1965 a ‘document’ includes any device by means of which information is recorded or stored (ibid s 4) and this definition must undoubtedly encompass a photograph. A photograph which is a trade or business record may be produced as evidence of that record in certain circumstances, essentially where the originator of the information is dead Or unable for other specified reasons to give evidence (ibid s 1 (1)).
A photograph falls within the definition of ‘document’ in s 10 (1) of the Civil Evidence Act 1968. This means that in the case of civil proceedings a photograph is admissible in the same way as other first hand hearsay (ibid s 2), provided it is a record made, by a person acting under a duty, from information supplied by person(s) reasonably supposed to have personal knowledge of the facts it relates (ibid s 4).
Order 38, r 5 of the Rules of the Supreme Court 1965, provides that a photograph shall not be received in evidence in the High Court unless the parties to the trial have been given the opportunity to inspect it at least 10 days prior thereto and to agree to its submission without further proof.
Proof of photograph’s authenticity
Taking due cognisance of the statutory provisions where they apply, and given that a photograph is ostensibly admissible, is any proof required as to its authenticity? The answer is, yes: a witness will be required to verify the photograph on oath unless all the parties agree that this is unnecessary.
Most court clerks and advocates regularly appearing in the magistrates’ courts tend to be of the opinion that unless a photograph is agreed, then the only way of introducing it is by means of its verification on oath by the person who actually took the photograph. It is hardly surprising that this view is often taken since in the arena of the magistrates’ court the legal “bible” is Stone’s Justices’ Manual. If one turns to the relevant reference in the 1980 Stone’s (112th edition) which can be found in footnote (c) on p 618, it states as a fact that “photographs must be verified by oath (Hindson v Ashby [1896] 2 Ch 1 at p 21) of the person who took the negative.”
Hindson v Ashby
The above sounds very plausible and one might be forgiven for not pursuing the matter further. A look at Hindson v Ashby, supra, however, reveals that the statement in Stone’s is not correct. The case concerned the entitlement of a riparian owner to accretions which had formed on the river bank. Photographs were put before the appellate court for each side in the dispute purporting to show the state of the river bank. The photographs, however, put forward in support of Hindson’s claim showed an entirely different picture than those produced for Ashby, and A L Smith LJ said (at p 22): “In these circumstances I part with the photographs which shew such totally different scenes and turn to the evidence upon which this case must be decided”.
It seems then that the main reason the photographs were rejected was because they produced a stalemate. Having said that, it is true to say that Smith LJ did discuss the need for verification of the photographs and had they been so verified, they might well have been admissible. Indeed, what Smith LJ said (at p 21) was that: “Photographs should not [be] looked at; but as photographs unless verified upon oath, are not of themselves evidence, we looked at them as mere pictures.”
Photographs must therefore be verified on oath, but what of Stone’s claim that that oath must be that of the person who took the negatives. Certainly Hindson v Ashby is no authority for this; in the only other reference to photographs in the report, Smith LJ said (at p 27): “I cannot tell by looking at the photographs whether this be so or not; and even if 1 could, as 1 have before said, photographs per se and unverified are no evidence at all.”
R v Tolson
Photographs were being used in evidence before Hindson v Ashby and the facts of R v Tolson (1864) 4 F & F 103, in particular, are worthy of note. Mary Tolson was charged with bigamy and a photograph purporting to be a likeness of her first husband was admitted in order to prove his identity with the person referred to in the marriage register. The photograph in fact had been “taken” from Mary Tolson and was referred to in evidence by her second husband, the prosecutor, who said that she had declared it to be a picture of her first husband. In R v Tolson, then, the photograph was not verified on oath by the person who took the negative and was not even directly verified, the second husband did not know it to be a picture of the first husband other than from what the defendant, Mary Tolson, had told him.
More important than pre Hindson v Ashby, supra, law is the situation since that case was decided. The judgment of Smith LJ in Hindson v Ashby was referred to by the House of Lords in the Privy Council case of United States Shipping Board v The Ship St Albans [1931] AC 632, in which Lord Merrivale said:
“A L Smith LJ and other Lords Justices demonstrated the necessity for careful delimitation of the uses for which, upon mere production of them, photographs can be accepted as means of proof of matters of fact. Clearly a photographic picture cannot be relied upon as proof in itself of the dimensions of the depicted objects, and cannot be made properly available to establish the relative proportions of such objects except by evidence of personal knowledge or scientific experience to demonstrate accurately the facts sought to be established.”
So the need for verification was upheld, but again no reference was made to any need for the verifier to have taken the negative. What is required is personal knowledge of what is in the photograph; of its accuracy.
A number of other cases illustrate the wide use of photographs and their admissibility, although they do not focus on the question of the need for verification or otherwise.
Use of photographs in proceedings
Photographs have been used to show the position of obstructing posts in the highway (R v United Kingdom Electric Telegraph Co Ltd (1862) 3 F & F 73), and to prove an infringement of copyright in a picture (Lucas v Williams & Sons [1892] 2 QB 113), to prove paternity by showing a child’s resemblance to his alleged father (C v C and C (Legitimacy: photographic evidence) [1972] 3 All ER 577); and photographs of nude boys found at the lodgings of a man accused of gross indecency with a boy (not a boy depicted in the pictures) were admitted to show what the practice of the accused was (R v Twiss [1918] 2 KB 853).
A photograph of a divorce petitioner’s wife was not admitted in Frith v Frith and Paice [1896] P 74, because the judge said: “I cannot act upon a photograph alone, and this is a very small one.” However, in a similar case, Hill v Hill (1915) 31 TLR 541, where the photograph was corroborated by other evidence, it was admissible.
Most of the major textbooks on evidence do not concern themselves in any detail with the admissibility of photographs and do not even touch on the need for verification. There are, it must be said, at least two works which support the Stone’s contention. Footnote (b) on p 49 of Harrold and White’s Summary Process and Prosecution states that “photographs, if not agreed, must be proved by the person who took the negative”, and Hindson v Ashby, supra, is given as the authority. This is an excellent little book, but the footnote reference does appear to have been taken directly from Stone’s.
Of potentially more importance is the reference to photographs in the 8th edition of Wilkinson’s Road Traffic Offences, where it is said (at p 115) that “photographs are proved by the oath of the person who took them, he producing the negatives at the same time”. It is interesting that Wilkinson gives no authority for this proposition. Wilkinson does draw his reader’s attention to a discussion of photographs in [1958] Crim LR 6. The discussion there unfortunately delves for the most part into the law in the United States, but in so far as it relates to English law, it does in turn cite R v Miller (1852) 6 Cox 82, saying that: “The important thing is that the witness who produces the photograph must be qualified by personal observation.”
Agreed, photographs must be verified, but what of the need for the negatives?
Perhaps the foremost authority on evidence is Phipson on Evidence. In a section on photographs in Phipson, at paragraph 1314, of the 11th edition it states that: “Witnesses may identify absent persons by photographs produced and proved by any competent testimony, not necessarily, of course, that of the photographer, to be accurate likenesses” and, in the footnotes cites, amongst other authorities already referred to in this article, our old friend, Hindson v Ashby, supra.
Unlike Stone’s, then, Phipson does not think that photographs need to be verified by the person who took the negative, and having looked at Hindson v Ashby, supra, it must be obvious that Phipson is correct.
Valid authority?
Can Stone’s be wrong? Can it be that the courts, or at least the magistrates’ courts, have been relying on an authority which does not exist? If one turns back to the footnote in Stone’s, supra, it will be noted that one is invited to “see also Halsbury’s Laws of England (4th ed) vol 15, para 224”. The reference to vol 15 should in fact be to vol 17 and this is clearly a mistake. In the 3rd edition of Halsbury’s Laws, the relevant volume was indeed volume 15, but following the publication of the 4th edition, in 1976, Stone’s did not note that the section on evidence was transferred to volume 17 in the new edition. This error is an obvious one, and we can all make mistakes, but it is an error that has been repeated since 1977 in each edition of Stone’s and it does show how in this way a mistake, once published, can be perpetuated. It is respectfully submitted that the statement that the person who took the negative must verify a photograph is also an error which has similarly gained an undeserved status of authenticity by its annual appearance in Stone’s.
To be entirely fair to Stone’s, it may be significant that the reference to Hindson v Ashby in the footnote comes after the words “photographs must be verified on oath”, but before the words “of the person who took the negative”. It could be, therefore, that Stone’s only intends to cite Hindson v Ashby as authority for the first part of the sentence. This means, however, that the second part of the sentence relating to the person who took the negative is unsubstantiated.
Paragraph 224 of vol 17 of Halsbury’s Laws (4th ed) incidentally confirms that “photographs properly verified on oath by a person able to speak to their accuracy are generally admissible”, but does not support Stone’s reference to the person who took the negative.
Conclusion
To sum up, it is submitted that Stone’s is wrong: photographs must be verified on oath (unless agreed), but not necessarily by the person who took the negative, merely by someone who can vouch for their accuracy.
The advocate who, therefore, wishes to introduce photographic evidence, but is unable to gain the agreement thereto of his opponents) and cannot call the person who took the negative, need not despair. Anyone who can speak as to the accuracy of a photograph can produce it. Very often to call the person who took the negative would mean calling a photographer, solely for this purpose, when other witnesses will in any event need to be called who have far more knowledge as to what the photograph shows and of what its significance is. If, in these circumstances, the admission of the photograph is challenged by the learned clerk or the opposing advocate zooming in on the offending reference in Stone’s, then they can be invited to find the authority in Hindson v Ashby, supra, a (photo) copy of which the well prepared advocate will have with him.
VICTOR SMITH
Related case digests
- Hindson v Ashby [1896] 2 Ch 1.
- photographs are admissible if verified on oath. - such verification need not necessarily be by the person who took the negative.