Video tape evidence: The risk of over-Persuasion

Criminal Law Review

Volumn 1998, Issue 3, 1998, Pages 159-174

  Elliott, D W ^a  

^a NONE

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EID: 3042985544     PISSN: 0011135X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (96)

1. See, e.g. Cook [1987] Q.B. 417; Kajala v. Noble (1980) 75 Cr.App.R. 149; Fowden and White [1982] Crim.L.R. 600; Dodson (1984) 79 Cr.App.R. 220; Taylor v. Chief Constable of Cheshire [1987] 1 All E.R. 225.
2. John M [1996] 2 Cr.App.R. 56 at 61.
3. Rawlings and Broadbent [1995] 1 W.L.R. 178 at 183.
4. Riaz and Burke (1992) 94 Cr.App.R. 339 (audio), differing from Emmerson (1991) 92 Cr.App.R. 284 on this point; Rawlings, supra; but see Imran and Hussein [1997] Crim.L.R. 754, where Rawlings was distinguished on the ground that in the instant case the tape was a silent one, and it was most unlikely that the jury would make impermissible use of the video by playing it backwards or in slow motion. Sed quaere - it is surely the possibility of such use which requires the replay to be in open court.
5. Riaz and Burke (1992) 94 Cr.App.R. 339 (audio), differing from Emmerson (1991) 92 Cr.App.R. 284 on this point; Rawlings, supra; but see Imran and Hussein [1997] Crim.L.R. 754, where Rawlings was distinguished on the ground that in the instant case the tape was a silent one, and it was most unlikely that the jury would make impermissible use of the video by playing it backwards or in slow motion. Sed quaere - it is surely the possibility of such use which requires the replay to be in open court.
6. Riaz and Burke (1992) 94 Cr.App.R. 339 (audio), differing from Emmerson (1991) 92 Cr.App.R. 284 on this point; Rawlings, supra; but see Imran and Hussein [1997] Crim.L.R. 754, where Rawlings was distinguished on the ground that in the instant case the tape was a silent one, and it was most unlikely that the jury would make impermissible use of the video by playing it backwards or in slow motion. Sed quaere - it is surely the possibility of such use which requires the replay to be in open court.
7. Rawlings, at 183.
8. The same rule applies to audio tapes: Riaz, Emmerson, supra.
9. [1995] 1 W.L.R. 178 at 183.
10. B, M and Sonia B [1996] Crim.L.R. 499; Lexis Transcript p.6.
11. [1995] 1 W.L.R. 178 at 183.
12. [1995] Crim.L.R. 336. Conviction quashed; proviso not applied.
13. [1996] 2 Cr.App.R. 54. Retrial ordered.
14. [1996] Crim.L.R. 499. Retrial ordered.
15. [1995] 2 Cr.App.R. 313. See also Morgan [1996] Crim.L.R. 600.
16. The omitted "reminder after replay" had been both requested by the defence and promised by the judge. The cross-examination had been full and dramatic, focusing on the complainant's habit of fantasising and making false allegations; it was forcefully referred to in counsel's final speech, and fully dealt with in the summing up. Moreover, the jury, although they had been told they could ask for a reminder, did not do so. Taking all this into account, the Court of Appeal decided that there was no need for a further reminder of the cross-examination. This may be thought a reasonable decision, but the Court does come near to suggesting that if the cross-examination was a "mundane" (their word) run-of-the-mill performance, there will be a need for a reminder of it, but if it is a dramatic, full-blooded affair (i.e. crucial to the defence) everyone will remember it, so no reminder need be given.
17. Coshall, unreported; The Times, February 17, 1995; Welstead [1996] 1 Cr.App.R. 59; B, R and Sonia B, supra.
18. Springer [1996] Crim.L.R. 903.
19. s.32A of the Criminal Justice Act 1988.
20. [1996] Crim.L.R. 600; see also Lexis transcript.
21. [1995] 1 W.L.R. 178 at 182H.
22. Approving Emmerson (1991) 92 Cr.App.R. 284; Riaz (1992) 94 Cr.App.R. 339 on audio tapes.
23. Approving Emmerson (1991) 92 Cr.App.R. 284; Riaz (1992) 94 Cr.App.R. 339 on audio tapes.
24. Apart from (a): the replay must be in court.
25. [1995] Crim.L.R. 490; see also Lexis transcript.
26. [1995] Crim.L.R. 491.
27. Infra, on Opinion Evidence.
28. Dodson and Williams (1984) 79 Cr.App.R. 220. See also Blenkinsopp [1995] 1 Cr.App.R. 7; McNamara [1996] Crim.L.R. 750; but D is not obliged to assist in the comparison by standing up, or even by being present in the dock.
29. Dodson and Williams (1984) 79 Cr.App.R. 220. See also Blenkinsopp [1995] 1 Cr.App.R. 7; McNamara [1996] Crim.L.R. 750; but D is not obliged to assist in the comparison by standing up, or even by being present in the dock.
30. Dodson and Williams (1984) 79 Cr.App.R. 220. See also Blenkinsopp [1995] 1 Cr.App.R. 7; McNamara [1996] Crim.L.R. 750; but D is not obliged to assist in the comparison by standing up, or even by being present in the dock.
31. (1984) 79 Cr.App.R. 220 at 228.
32. Cartwright (1914) 10 Cr.App.R. 219; Horsham JJ., ex p. Bukhari (1994) 74 Cr.App.R. 291; John [1973] Crim.L.R. 113; Fergus [1992] Crim.L.R. 363.
33. (1984) 79 Cr.App.R. 220 at 227.
34. Caldwell and Dixon (1993) 99 Cr.App.R. 73 at 77.
35. It has been held that since para. 2.1 does not expressly forbid the use of photographs they may be allowed, but this was under an earlier version of para. 2.1 which contained a lacuna which was removed by the present wording: see Kitchen [1984] Crim.L.R. 68.
36. Whether a person is a known suspect can be a difficult question of degree. See, e.g. Oscar [1991] Crim.L.R. 778; Rogers [1993] Crim.L.R. 387. In Johnson [1996] Crim.L.R. 504, a woman was robbed in the street by another woman. The victim gave a very full description of her assailant. The accused had been captured on a security camera at a petrol station near the scene of the attack shortly after the attack; and the investigating officer recognised her from previous dealings. The tape was shown to the victim and she recognised the person in it as her assailant. This was held to be in effect a confrontation with a known suspect rather than an attempt to discover the perpetrator and was held to be a breach of Code D: the "confrontation" should not have been held at all since the suspect had not refused to stand in a parade, and it was anyway not conducted in accordance with Annex C.
37. Code D, para. 2.18.
38. Lamb (1980) 71 Cr.App.R. 198.
39. Crabtree McCann and Foley [1992] Crim.L.R. 65.
40. (1993) 99 Cr.App.R. 73.
41. (1982) 75 Cr.App.R. 149.
42. 99 Cr.App.R. 73 at 77.
43. Fowden and White [1982] Crim.L.R. 588, where such evidence was excluded on discretion, was distinguished as being "a very special case on its facts" (the witnesses recognised D only because he had been involved in a later repetition of the offence): (1994) 99 Cr.App.R. at 77.
44. [1977] Q.B. 224.
45. e.g. Dodson and Williams (1984) 79 Cr.App.R. 220; Blenkinsopp [1995] 1 Cr.App.R. 7.
46. e.g. Dodson and Williams (1984) 79 Cr.App.R. 220; Blenkinsopp [1995] 1 Cr.App.R. 7.
47. See Downey [1995] 1 Cr.App.R. 547 at 555.
48. Blenkinsopp, supra, at 12.
49. (1984) 79 Cr.App.R. 220 at 229.
50. [1995] 1 Cr.App.R. 547 at 556.
51. [1995] 1 Cr.App.R. 7 at 11.
52. ibid.
53. Downey [1995] 1 Cr.App.R. 547 at 556.
54. [1987] 1 All E.R. 225; (1987) 84 Cr.App.R. 191, DC.
55. [1987] 1 All E.R. 225 at 230, applying Grimer [1982] Crim.L.R. 674 and Kajala v. Noble (1982) 75 Cr.App.R. 149.
56. ibid.
57. One of the viewing witnesses was the defendant's then solicitor and he testified that he could not be sure that it was the defendant who was depicted.
58. [1987] 1 All E.R. 225 at 232. Emphasis supplied.
59. Neither report makes clear how they directed themselves.
60. [1995] 1 Cr.App.R. 7.
61. At p.12. He had pointed out that the officer had been speaking to the defendant for three minutes at the minimum, but did not otherwise reproduce any part of the Turnbull requirements. (See p.10).
62. [1977] Q.B. 224 at 228.
63. ante, n.26 and associated text.
64. Taylor [1987] 1 All E.R. 225: provided the tape is properly verified, i.e. by the establishment by evidence of the position of the camera, the integrity of the tape and of the image, especially if it has been computer-enhanced. On computer-enhancement, see Plowden, Stockdale and Elliott, "New Techniques and New Devices" (1997) N.L.J. 502 at 503.
65. Taylor [1987] 1 All E.R. 225: provided the tape is properly verified, i.e. by the establishment by evidence of the position of the camera, the integrity of the tape and of the image, especially if it has been computer-enhanced. On computer-enhancement, see Plowden, Stockdale and Elliott, "New Techniques and New Devices" (1997) N.L.J. 502 at 503.
66. On Opinion Evidence generally, see Cross and Tapper, Evidence (8th ed.), Chap. XII.
67. Turner (1975) 60 Cr.App.R. 80 at 83: "Juries do not need psychiatrists to tell them how ordinary folk who are not suffering from any mental illness are likely to react to the stresses and strains of life . . . That is what juries are empanelled to do. The law assumes they can perform their duties properly. The jury in this case did not need, and should not have been offered, the evidence of a psychiatrist to help them decide whether the defendant's evidence [as to his reaction to provocation] was truthful": per Lawton L.J.
68. Stockwell (1993) 97 Cr.App.R. 260 at 263, citing Turner, supra; Clarke [1995] 2 Cr.App.R. 425 at 431.
69. Stockwell (1993) 97 Cr.App.R. 260 at 263, citing Turner, supra; Clarke [1995] 2 Cr.App.R. 425 at 431.
70. Stockwell, supra (medical artist skilled in facial mapping); Clarke, supra (pathologist using the "video superimposition" technique).
71. [1987] 1 All E.R. 225; (1987) 84 Cr.App.R. 191; and see Grimer [1982] Crim.L.R. 674.
72. [1995] 1 Cr.App.R. 7.
73. November 10, 1994, CA, unreported other than by Lexis.
74. (1991) 93 Cr.App.R. 161.
75. R did not give evidence, so there was no opportunity for the jury to make their own comparison.
76. Because of the rule in Crouch (1850) 4 Cox 164, as to which, see below at n.78 and associated text.
77. [1995] 2 Cr.App.R. 333. The first use of the expression "experts ad hoc" which I have been able to trace was in Richard (1918) 13 Cr.App.R. 140, where however the concept thus designated did not find favour with the Court of Criminal Appeal.
78. At 336, on the authority of Grimer [1982] Crim.L.R. 674; Fowden and White [1982] Crim.L.R. 558; Kajala v. Noble (1982) 75 Cr.App.R. 149.
79. Leaney and Robinson (1988) 38 C.C.C. (3rd) 263 Alberta Court of Appeals; Steele and Forbes v. H.M. Advocate, 1992 J.C. 1 (relied on for a quotation from Hopes and Lavery v. H.M. Advocate, 1960 S.C.(J.) 104); Home [1982] 1 N.Z.L.R. 618.
80. [1982] 1 N.Z.L.R. 618 at 628.
81. [1894] 2 Q.B. 766.
82. [1982] 1 N.Z.L.R. 40.
83. Harradence J. in Leaney and Robinson, supra.
84. The judge had given the jury "the clearest direction along Turnbull lines".
85. [1995] 2 Cr.App.R. 333 at 338.
86. (1850) 4 Cox 164; Fitzwalter Peerage (1843) 11 Cl. & F. 193 is to the same effect.
87. Wilbain (1863) 9 Cox 448; Harvey (1869) 11 Cox 546 (both, like Crouch, Assize rulings); Rickard (1918) 13 Cr.App.R. 140, (CCA).
88. Wilbain (1863) 9 Cox 448; Harvey (1869) 11 Cox 546 (both, like Crouch, Assize rulings); Rickard (1918) 13 Cr.App.R. 140, (CCA).
89. Wilbain (1863) 9 Cox 448; Harvey (1869) 11 Cox 546 (both, like Crouch, Assize rulings); Rickard (1918) 13 Cr.App.R. 140, (CCA).
90. In Harvey, supra, Blackburn J. maintained his refusal to allow such a witness to give his opinion in spite of the recently enacted Criminal Procedure Act 1865, s.8 of which apparently allows, on a question of handwriting, the evidence of any witness, expert or not.
91. (1991) 93 Cr.App.R. 161.
92. At 168.
93. "Instant" is perhaps a better description to apply than "ad hoc", being a clearer indication of the reality of their situation. As was said by Follett AG arguendo in Fitzwalter Peerage, supra, at 196: "A person who reads a medical or chemical book with the greatest attention, for the purpose of giving evidence on a question of medicine or chemistry, is not an admissible witness for such purpose".
94. Ramsden [1991] Crim.L.R. 295; Tyler [1993] Crim.L.R. 60.
95. Ramsden [1991] Crim.L.R. 295; Tyler [1993] Crim.L.R. 60.
96. [1995] 2 Cr.App.R. 333 at 339.