DISPUTED VISUAL I.

D EVIDENCE A)In light of the evidence given by Harold Biggins2 under cross examination, outline the approach the trial judge should take in dealing with issues relating to cogency (weight given) of this evidence? (Assuming that it is admissible evidence)? CODE D PARA 3.12= An I.D procedure must be used whenever: ii) there is a witness available (here Harold Biggins) who expresses an ability to identify the suspect... and the suspect disputes being the person the witness claims to have seen. (Here Tony Smart in his witness statement disputes being the person the witness saw on the evening the burglary took place, due to defence of mistaken identity). The Turnbull guidelines only apply for visual I.D evidence where: a) The case against the Defendant depends wholly or substantially on Visual I.D evidence b) The witness must have seen Defendant twice c) The Defendant disputes the identification evidence:- (in our case Tony disputes the identification evidence made by Harold Biggins was him at all. From Tony Smarts Witness Statement he states it must be a case of mistaken identity as it was not him who committed the burglary and took the money.) In assessing the quality of the I.D evidence, the Trial judge will take a preliminary view at the end of the prosecutions case. Judge decides if the quality of the I.D evidence is good or poor. Relevant factors:-

Amount of time the person was under observation: walking his dog past the shop where theft happened smiths sports shop how long saw the man described for (unknown). Distance between the witness and the person observed: (unknown) but must be fairly close) Visibility: it was at 11.30pm so it was dark! But was it well lit area as in high street? (unknown) Obstructions blocking the witnesss view: Harold submits he saw the man quite clearly. Known or seen before (i.e did the witness know the person observed , or had he seen that person before ): it is unlikely he knew the person he saw (unknown) Any other reason to remember who he saw: (not atm) (unknown) Time lapses (i.e between the sighting of the person by the witness and the witness giving a statement describing that person to the police, or identifying that person at an I.D procedure): Harold made the sighting of the person outside the shops side entrance at 11.30pm on Monday 10th January and later made his witness statement stating that on 12th January 2011 at 2pm. The time lapse here was only a day and a half which is not a long time for his memory of what he actually saw to fade! Errors or discrepancies between the first description of the person seen given by the witness to the police and the actual appearance of the Defendant: Harold gave the description of the man he saw

as, wearing blue jeans, black leather jacket, gloves, holding crash helmet, young man, about 6 ft tall. Does this match?!!!what police have?

CONCLUSION: if in crown court: If quality of I.D evidence is poor and unsupported, the judge must withdraw the case and direct an acquittal of the Defendant.

LIKELY OUTCOME ON THE FACTS= (BELOW) If quality of the I.D evidence is poor and supported with other evidence, e.g. ( confessions by Defendant (perhaps Tonys confession to his wife as to where he got the money from to pay for her gifts)/ DNA Fingerprint evidence found (has been taken by police of tony)/ s.34, s.36 inferences (here a no comment interview by suspect Tony Smart) / Testimony of another witness/ Refusal to take part in I.D procedure) Trial will continue , but when summing up the judge will direct jury with the TURNBULL WARNING:1) 2) 3) 4) To exercise caution and the reason why To examine the circumstances of the witness identification closely It is easy for an honest witness to be mistaken What other evidence is and is not capable of amounting to support. Supporting evidence includes:In a Theft case, stolen property being found in the Defendants possession: here Tony at the police station was found to be in possession of a large sum of cash totalling 450, even though he has a poorly paid job! AND Brings possibility of adverse inferences under( s.34 cjpoa) failure to mention facts when questioned or charged due to no comment interview. And (section 36 cjpoa) adverse inferences for the failure to account for the money found in his possession at police station that is believed to be attributable to the participation of the person arrested in the commission of an offence. A special warning was given by D.C 26 (longton)at 2.45 mins on the tape time in the audibly recorded interview) (This therefore complies with section 36 (4) cjpoa and code c para 10.11)!!

Conclusion if in Magistrates court: Magistrates will decide using above criteria as to what weight to give the i.d evidence but the Defence would submit a no case to answer at the end of their submission if it was poor and unsupported i.d evidence!