Identification from CCTV: The risk of injustice

Criminal Law Review

Volumn , Issue AUG., 2007, Pages 591-608

  Costigan, Ruth ^a  

^a SWANSEA UNIVERSITY   (United Kingdom)

Author keywords

Closed circuit television; Criminal evidence; Expert witnesses; Facial mapping; Jury directions; Mistaken identity; Recognition; Reliability; Visual identification

Indexed keywords

EID: 34547686225     PISSN: 0011135X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (118)

1. Surveillance Studies Network, A Report on the Surveillance Society (2006); available from the Information Commissioner's Office: http://www.ico.gov.uk.
2. Z. Henderson et al., "Matching the Faces of Robbers Captured on Video" (2001) 15 Applied Cognitive Psychology 445 at p.463.
3. The impact of this is recognised in a training exercise in which magistrates in south Wales were given a written account of an assault and asked to arrive at a sentence. They were then shown CCTV footage of the attack and asked again for the sentence they would impose; without exception, the sentences increased (serving magistrate interviewed November 2006).
4. W. Bennett and M. Feldman, Reconstructing Reality in the Courtroom: Justice and Judgement in American Culture (Rutgers University Press, 1981), p.4.
5. See also, J. McEwan, The Verdict of the Court. Passing Judgment in Law and Psychology (Hart Publishing, 2003), pp. 118-125, where she refers, at p.119, to research findings that the jury's verdict is most likely to favour a party presenting a story.
6. See www.bbc.co.uk/crime/crimewatch.
7. Judge Eli Chernow, "From the Bench: Video in the Courtroom-More than a Talking Head" (1988) Litigation (Fall), p.4 at p.5.
8. See, for example, Caldwell and Dixon (1994) 99 Cr. App. R. 73 at p.77.
9. See M. Burton et al., "Face Recognition in Poor-quality Video: Evidence from Security Surveillance" (1999) 10 Psychological Science 243;
10. V. Bruce et al., "Matching Identities of Familiar and Unfamiliar Faces Caught on CCTV Images" (2001) 7 Journal of Experimental Psychology: Applied 207.
11. [2003] 1 Cr. App. R. 21 at p.27, confirming Fowden and White [1982] Crim. L.R. 588;
12. Kajala v Noble (1982) 75 Cr. App. R. 149;
13. Grimer [1982] Crim. L.R. 674;
14. Caldwell and Dixon, fn.7 above;
15. Blenkinsop [1995] 1 Cr. App. R. 7.
16. (1987) 84 Cr. App. R. 191. Gibson L.J. referred to the need for caution before convicting where the film is no longer available.
17. [2004] EWCA Crim 2230. See also, Dillon, unreported, May 25, 2000, CA (presided over by Henry L.J.), in which expert analysis of police helicopter film established a conviction as unsafe.
18. She explained on appeal that at the time she was committing dishonesty offences on a daily basis to fund her drug addiction, and did not know whether she had committed the robbery.
19. See fn. 11 above, per Laws L.J. at [9].
20. Caldwell and Dixon, fn.7 above, at p.78.
21. See also, Roberts [1998] Crim. L.R. 682, in which the Court of Appeal called for a code of practice in relation to video evidence.
22. [2005] EWCA Crim 916. See also, Johnson [1996] Crim. L.R. 504, in which a conviction was quashed because, inter alia, the police officer who conducted an identification procedure by video confrontation had himself earlier identified the suspect from the video and no "foils" were used to test the witness' identification.
23. M. Burton et al., fn.8 above.
24. V. Bruce et al. (2001), fn.8 above. The same study provides evidence that the nature, rather than length, of exposure to faces improves performance: in a further experiment, participants were asked to view the familiarisation videos in pairs and then talk with each other about the people whose faces were shown. The social interaction led to increased accuracy in matching the target face in photograph arrays.
25. See also, P. Ainsworth, Psychology, Law and Eyewitness Testimony (Wiley, 1998), pp.43-44: police officers do not have superior recall where a person is briefly encountered.
26. See fn.9 above.
27. Whilst a Turnbull warning is to be given in recognition cases (Shand v R. [1996] 1 W.L.R. 67;
28. France [2005] EWCA Crim 3340;
29. Capron [2006] UKPC 34), as is discussed below the existence of a permanent record on film, and the perceived superiority of police officers as witnesses, leads courts to a high degree of confidence in recognition from photographs or video.
30. [1977] Q.B. 224. The matters to be considered by the jury include the length of time during which the witness observed the offender, the distance from which the observation was made, whether the view was obstructed, whether the offender was previously known to the witness, and the time period between the event and the witness' description to the police.
31. Recent research confirms that in the US a high level of confidence in such evidence persists. Jurors were asked whether they agreed with 30 statements by experts about eyewitness issues; they disagreed on 87 per cent of the issues. Judges and law enforcement personnel disagreed with the experts on 60 per cent of the issues. T. Benton et al, "Eyewitness Memory is Still Not Common Sense: Comparing Judges, Jurors and Law Enforcement to Eyewitness Experts" (2006) 20 Applied Cognitive Psychology 115.
32. Luttrell and others [2004] EWCA Crim 1344, per Rose L.J. at [42]; emphasis added.
33. V. Bruce et al. (2001), fn.8 above;
34. V. Bruce et al., "Verification of Face Identities from Images Captured on Video" (1999) 5 Journal of Experimental Psychology: Applied 339.
35. cf. case comments on Attorney-General's Reference (No. 2 of 2002), fn.9 above: A. Roberts, "Identification of Suspects from CCTV and Video Recordings" (2003) 67 J.C.L. 91;
36. D.C. Ormerod, [2003] Crim. L.R. 192.
37. The acceptability of this was established in Dodson and Williams (1984) 79 Cr. App. R. 220 and confirmed in Attorney-General's Reference (No.2 of 2002), fn.9 above. The images must be "sufficiently clear" to enable comparison.
38. (1984) 79 Cr. App. R. 220, per Watkins L.J. at p.228.
39. [1995] 1 Cr. App. R. 547.
40. Ibid., per Evans L.J. at p.556.
41. Ibid.
42. "Video Tape Evidence: the Risk of Over-Persuasion" [1998] Crim. L.R. 159 at p.166.
43. See fn.10 above, at p.201. Elliott supports a need for caution where the tape is not available to the jury, but regards as otiose a Turnbull direction where the jury can view the tape: fn.30 above, at p.168.
44. See fn.9 above.
45. Ibid., at p. 12.
46. Ibid., citing Downey in support. Williams (Christopher Derek) [2005] EWCA Crim 2332 is a recent application of Downey and Blenkinsop. The trial judge gave a Tumbull warning in relation to a robbery victim's testimony, but declined counsel's invitation to give a special direction as to the dangers of identification from CCTV. The Court of Appeal noted that no special circumstances arose which required something beyond Tumbull, as the jury had not been invited by the Crown to attempt an identification of the defendant from the CCTV (though die judge had given the impression in his summing-up that the jury could do so), and it would have been obvious to the jury that the quality of the footage precluded a positive identification.
47. See fn.25 above, at pp.228-229.
48. Extract from the trial judge's direction to the jury, Taylor and Hayes, unreported, February 2, 1995, CA.
49. G. Davies and S. Thasen, "Closed-circuit television: How Effective an Identification Aid?" (2000) 91 British Journal of Psychology 411 at p.424.
50. [1995] 2 Cr. App. R. 333 at p.339.
51. This was echoed in Luttrell, fn.22 above: "Although at one time a more conservative approach had been adopted, the policy of the English courts has been to be flexible in admitting expert evidence and to enjoy 'the new advantages to be gained from new techniques and new advances in science'.", per Rose L.J. at [37],
52. citing Steyn L.J. in Clarke [1995] 2 Cr. App. R. 425 at p.430.
53. See, for example, Ramsden [1991] Crim. L.R. 295;
54. Tyler and others [1993] Crim. L.R. 60;
55. Williams (John), The Times, October 7, 1994.
56. M. Burton et al., fn.8 above; A. Yarmey, "Police as Witnesses" (1998) 6 Expert Evidence 237.
57. See, for example, Gray [2003] EWCA Crim 1001;
58. Devaney [2003] EWCA Crim 2109.
59. For example, in Kane and others, unreported, July 5, 1991 (CA in Northern Ireland), the "Diplock judge" found that film evidence showed the defendant, Kelly, participating in the attack on Corporals Wood and Howes, killed in Belfast in 1988, and established his presence at a particular place. The Court of Appeal observed that there was on the film, "nothing to suggest that he was participating on [sic] the assault on them", and that "we found no one at the railings or in the vicinity who was Kelly or who resembled him. The trial judge's finding in this respect was therefore incorrect." The appeal against conviction for two murders failed.
60. A. Megreya and M. Burton, "Recognising Faces Seen Alone or with Others: When Two Heads are Worse than One" (2006) 20 Applied Cognitive Psychology 957.
61. See also, G. Davies and S. Thasen, fn.37 above.
62. V. Bruce et al. (1999), fn.23 above.
63. Ironically, Carswell J. found an identification of the defendant Kane from film "fairly convincing" despite acknowledging that the hair colour and face shape of the person on the film differed from that of the defendant. He speculated that the difference in hair colour could be explained by film tone, and the disparity in face shape by the quick movement of the man on the film. Kane and others, fn.42 above. Far from reinforcing the conclusion, these factors should have thrown doubt on an identification where facial features could not be observed clearly.
64. Z. Henderson et al., fn.2 above, p.459.
65. R. Kemp et al., "When Seeing should not be Believing: Photographs, Credit Cards and Fraud" (1997) 11 Applied Cognitive Psychology 211.
66. See, for example, C. Norris and M. McCahill, "CCTV: Beyond Penal Modernism?" (2006) 46 B.J. Crim. 97 at p.114.
67. V. Bruce et al (1999), fn.23 above.
68. In a similar matching study, errors were made in 25 per cent of instances where participants were asked to match between high-quality video-still and high-quality photograph, and in 30 per cent where a video clip was used instead of a still: M. Burton et al., fn.8 above.
69. In a percipient comment in Downey, Evans L.J. said that where a video clip, rather than a still, is relied on, jurors should be told that they have "only seen a moving representation which they had no opportunity to compare directly with the defendant who appeared before them." (fn.27 above, at p.556).
70. See fn.23 above, p.357.
71. See also, V. Bruce, "Fleeting Images of Shade. Identifying People Caught on Video" (1998) The Psychologist 331 at p.334: "We now have evidence that rather subtle pictorial differences are hard for human vision to deal with, a characteristic also of several of the more successful computer systems for face recognition."
72. See also Kemp et al., fn.47 above, p.213.
73. In one case, the defendant was instructed to walk up and down in front of the jury box for this purpose: Gray, fn.41 above.
74. See fn.23 above, p.358.
75. V. Bruce et al. (2001), fn.8 above, p.217.
76. See fn.2 above.
77. Combining first and second attempts, 76 per cent correctly identified robber 2.
78. See fn.2 above, p.454.
79. Ibid., p.460.
80. Ibid., p.462.
81. Ibid., p.463.
82. See also, P. Hancock et al., "Recognition of Unfamiliar Faces" (2000) 4 Trends in Cognitive Sciences 330.
83. See fn.37 above, p.413.
84. Ibid., p.419.
85. Ibid., p.421.
86. A. Megreya and M. Burton, fn.43 above. The ability to identify from memory was also tested, with participants given unlimited time to study the target image before attempting identification. Correct identification was achieved in only 59 per cent of cases with an image of a single face, which fell to 34 per cent when a second face was present.
87. See fn.38 above.
88. [1982] 1 N.Z.L.R. 618 at p.627;
89. cited in Clare and Peach, fn.38 above, at p.338. For criticism of the Court of Appeal's approach to the Commonwealth authorities cited in support of admissibility,
90. see R. Munday, "Videotape Evidence and the Advent of the Expert Ad Hoc" (1995) 159 J.P. 547.
91. See further, D.W. Elliott, fn.30 above, pp. 169-174.
92. General Medical Council v Spackman [1943] A.C. 627, per Lord Atkin at p.638.
93. See fn.38 above, per Taylor L.C. J. at p.338, citing Harradence J. in Leaney and Rawlinson (1988) 38 C.C.C. (3d) 263 at p.276.
94. Attorney-General's Reference, fn.9 above, per Rose L.J. at p.327.
95. The evidence of the other two police officers was excluded under s.78 of PACE as mey neither had prior knowledge of Swinscoe, nor viewed the CCTV several times: fn.15 above.
96. Attorney-General's Reference, fn.9 above, at p.327;
97. Stockwell (1993) 97 Cr. App. R. 260;
98. Clarke, fn.38 above;
99. Hookway [1999] Crim. L.R. 750.
100. [2004] EWCA Crim 1639.
101. See also, Briddick [2001] EWCA Crim 984.
102. T. Tyler, "Viewing CSI and the Threshold of Guilt: Managing Truth and Justice in Reality and Fiction" (2006) 115 Yale L.J. 1050 at p. 1084.
103. Mitchell (John Darren) [2005] EWCA Crim 731.
104. See fn.73 above.
105. See fh.41 above.
106. Ibid., per Mining J. at [16].
107. See fn.77 above.
108. Ibid., per Tuckey L.J. at [13].
109. See, for example, Briddick, fn.75 above.
110. See Gray (2003), fn.41 above (retrial ordered);
111. Devaney, fn.41 above (conviction quashed);
112. Nugent and Savva [2003] EWCA Crim 3434 (appeal dismissed: identification based on clothing, not facial mapping);
113. Stubbs [2002] EWCA Crim 2254 (appeal dismissed, applying the test established in Pendleton [2002] 1 W.L.R. 72 whether the jury would inevitably have convicted without the impugned evidence);
114. Plant (Michael James), unreported, May 19, 2000, CA (facial mapping used, but appeal dismissed).
115. For a commentator's enthusiasm, see E. Goldstein, "Photographic and Video Evidence in the Criminal Courts of England and Canada" [1987] Crim. L.R. 384.
116. Luttrell, fn.22 above. In ruling that such evidence could form a prima facie case, the Court of Appeal reassured that, "It is highly unlikely that lip reading will ever stand alone because, unless there is other evidence, it is unlikely that a video recording will ever have been made." (per Rose L.J. at [45]). But the assumption that surveillance images will usually be the product of an existing criminal investigation appears naïve, given the prevalence of CCTV. Further, although the court set out guidelines in relation to determining admissibility and directing the jury as to weight, the reliability of lip reading as evidence is highly contested by experts, as was explored before the court.
117. See fn.25 above.
118. For instance, in Williams and Best [2006] EWCA Crim 2148, the prosecution claimed that a person shown in indistinct CCTV footage was the defendant, on the basis that he was the only person in a group wearing light clothing. No evidence was led to exclude the possibility that the appearance of light clothing was attributable to factors such as light reflection.