UKPC 28
Privy Council Appeal No 0049 of 2010
Mark France and Rupert Vassell (Appellants) v The Queen (Respondent)
From the Court of Appeal of Jamaica
JUDGMENT DELIVERED BY
16 August 2012
Heard on 24 April 2012
Malcolm Bishop QC
(Instructed by Slaughter and May)
(Instructed by Charles Russell LLP)
The identification evidence
"Each of these appeals raises problems relating to evidence of visual identification in criminal cases. Such evidence can bring about miscarriages of justice and has done so in a few cases in recent years. The number of such cases although small compared with the number in which evidence of visual identification is known to be satisfactory, necessitates steps being taken by the courts, including this court, to reduce that number as far as is possible. In our judgment the danger of miscarriages of justice occurring can be much reduced if trial judges sum up to juries in the way indicated in this judgment.
First, whenever the case against an accused depends wholly or substantially on the correctness of one or more identifications of the accused which the defence alleges to be mistaken, the judge should warn the jury of the special need for caution before convicting the accused in reliance on the correctness of the identification or identifications. In addition he should instruct them as to the reason for the need for such a warning and should make some reference to the possibility that a mistaken witness can be a convincing one and that a number of such witnesses can all be mistaken. Provided this is done in clear terms the judge need not use any particular form of words.
Secondly, the judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made. How long did the witness have the accused under observation? At what distance? In what light? Was the observation impeded in any way, as for example by passing traffic or a press of people? Had the witness ever seen the accused before? How often? If only occasionally, had he any special reason for remembering the accused? How long elapsed between the original observation and the subsequent identification to the police? Was there any material discrepancy between the description of the accused given to the police by the witness when first seen by them and his actual appearance? If in any case, whether it is being dealt with summarily or on indictment, the prosecution have reason to believe that there is such a material discrepancy they should supply the accused or his legal advisers with particulars of the description the police were first given. In all cases if the accused asks to be given particulars of such descriptions, the prosecution should supply them. Finally, he should remind the jury of any specific weaknesses which had appeared in the identification evidence.
Recognition may be more reliable than identification of a stranger; but even when the witness is purporting to recognise someone whom he knows, the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made.
All these matters go to the quality of the identification evidence. If the quality is good and remains good at the close of the accused's case, the danger of a mistaken identification is lessened: but the poorer the quality, the greater the danger.
In our judgment when the quality is good, as for example when the identification is made after a long period of observation, or in satisfactory conditions by a relative, a neighbour, a close friend, a workmate and the like, the jury can safely be left to assess the value of the identifying evidence even though there is no other evidence to support it: provided always, however, that an adequate warning has been given about the special need for caution."
"This is a case in which the case against Mr France rests entirely on the identification evidence of Herbert (sic) Sutherland and the case against Mr Vassell rests substantially on the identification evidence of the same Mr Sutherland. I must, therefore, warn you of the special need for caution before convicting on the reliance of the correctness of that identification. The reason for this is that it is quite possible for an honest witness to make a mistaken identification and in jurisdictions like ours, where we have the adversary system, there have been notorious miscarriages of justice based upon mistaken identification although I, myself, am not aware of any such notorious miscarriages of justice in our country. Now in this, a case, where the identifying witness said he knew both accused for some time, he knows each of them for a number of years, I think eight is common to both, eight years, as such, this case may be classified as a recognition case. However, despite the fact that this is a recognition case, my warning to you on the caution to be exercised is not to be watered down at all. You have to consider, members of the jury, whether or not the identifying witness, Sutherland, did know each accused before, and if he did know each of them before, did he know either of them or both of them to such an extent so that each of their respective features would be so imprinted in his consciousness, that in the circumstances which you accept, that in those circumstances, the circumstances of the incident, that in those circumstances you can rely on the evidence of Mr Sutherland. In other words, did he know them to such an extent that in that short time he was able to make a proper identification? So as I review the evidence you will pay attention to the opportunity which Mr Sutherland had, you look at things like the amount of time, the lighting, the position of each accused, vis-a-vis, in respect to the identifying witness. You look at the lighting or any other factor which you think is relevant to determine whether or not this was a correct and proper identification."
Identification or recognition
Lack of identification parade
"Q. Tell me, John Mills have a playing field?
Q. Big playing field?
A. Not really a big playing field.
HIS LORDSHIP, But it is you he was playing football with?
WITNESS: Yes, 'Legamore'.
Q. You didn't know his name before you come to Gun Court?
Q. You didn't know his correct name?
Q. It is not somebody that you used to talk to?
A. No, I don't talk to him. I just play ball with him.
Q. You don't really know him?
A. Mi know him, but not to talk to.
A. You never talk to him? Okay."
"It is the Board's clear view that this cannot properly be regarded as a dock identification case at all. As already indicated, Ms Minnott knew not only the appellant but also his mother and his brother as well and it can hardly be thought that she was mistaken in her recognition of all three of them as having been present on the day in question. By the time she came to point out the appellant in the dock at trial (the 'dock identification' as Mr Aspinall seeks to characterise it) she had already told the police precisely who he was … It was in answer to the question 'and you see Peter Stewart here today?' that she pointed to the appellant in the dock. It was a pure formality"
"There are two things, two more things I wish to say to you before I review the evidence. One pertains to Mr Vassell. You see, the first time that the witness was pointing out Mr Vassell, after the incident, was in court. This is known as a dock identification. Now, Mr Foreman... and members of the jury this is quite undesirable and it is undesirable because, you know, if you see somebody in the dock, you know, you going to say it must be him. Why, in other words, why would he be in the dock? So this is a further reason to emphasise the caution. Then in respect of Vassell, Mr Vassell, who is known as Leggo Man – Leggo More (sic), did the witness know Leggo More? Did he know him to such an extent that in those circumstances he could have properly identified him".
The conduct of counsel
Lack of a good character direction for Mr Vassell
"The defendant's good character must be distinctly raised, by direct evidence from him or given on his behalf or by eliciting it in cross-examination of prosecution witnesses: Barrow v The State  AC 846, 852, following Thompson v The Queen  AC 811, 844. It is a necessary part of counsel's duty to his client to ensure that a good character direction is obtained where the defendant is entitled to it and likely to benefit from it. The duty of raising the issue is to be discharged by the defence, not by the judge, and if it is not raised by the defence the judge is under no duty to raise it himself: Thompson v The Queen, at p 844 ..."
"... It is the duty of defence counsel to ensure that the defendant's good character is brought before the court, and failure to do so and obtain the appropriate direction may make a guilty verdict unsafe: Sealey v The State (2002) 61 WIR 491; Teeluck v The State [ 1 WLR 2421], (2005) 66 WIR 319."
"It is well established that the omission of a good character direction is not necessarily fatal to the fairness of the trial or to the safety of a conviction - Jagdeo Singh...  1 WLR 146, para 25 and Bhola v The State  4 LRC 268, paras 14-17. As Lord Bingham of Cornhill said at para 25 in Jagdeo Singh's case, 'Much may turn on the nature of and issues in a case, and on the other available evidence.' Where there is a clash of credibility between the prosecution and the defendant in the sense that the truthfulness and honesty of the witnesses on either side is directly in issue, the need for a good character direction is more acute. But where no such direct conflict is involved, it is appropriate to view the question of the need for such a direction on a broader plane and with a close eye on the significance of the other evidence in the case. Thus, in Balson v The State  4 LRC 147, a case which turned on the circumstantial evidence against the appellant, the Board considered that such was the strength and cogency of that evidence the question of a good character direction was of no significance. At para 38 the Board said:
"… a good character direction would have made no difference to the result in this case. The only question was whether it was the appellant who murdered the deceased or whether she was killed by an intruder. All the circumstantial evidence pointed to the conclusion that the appellant was the murderer. There was no evidence to suggest that anyone else was in the house that night who could have killed her or that anyone else had a motive for doing so. In these circumstances the issues about the appellant's propensity to violent conduct and his credibility, as to which a good character reference might have been of assistance, are wholly outweighed by the nature and coherence of the circumstantial evidence."
It is true that in Teeluck... at para 33(iv) Lord Carswell, giving the judgment of the Board, said that 'where credibility is in issue, a good character direction is always relevant'. And in para 33(ii) he said that the direction 'will have some value and will therefore be capable of having some effect in every case in which it is appropriate [to give it and that if] it is omitted in such a case it will rarely be possible for an appellate court to say that the giving of a good character direction could not have affected the outcome of the trial.' In Bhola...the Board considered these remarks. After reviewing the cases of Balson, Jagdeo Singh and Brown (Uriah) v The Queen  1 AC 1, Lord Brown of Eaton-under-Heywood, delivering the judgment of the Board, said that the statement in para 33(ii) of Teeluck...required to be applied with some caution. He continued:
"In Teeluck's case itself, of course, the appellant's credibility was said to be "a crucial issue" to the extent that the Board was unable to conclude "that the verdict of any reasonable jury would inevitably have been the same if [the direction] had been given" (para 40). So too in Jagdeo Singh's case  1 WLR 146. But the Board reached a different conclusion in Balson's case  4 LRC 147 and in Brown's case  1 AC 1 and their Lordships have no doubt that the Court of Appeal were right to have done so in the present case too. The cases where plainly the outcome of the trial would not have been affected by a good character direction may not after all be so 'rare'."
The receipt of hearsay evidence
"Witness: I went inside the CIB office where I saw and spoke to Detective Constable Williams and I saw and identified myself to Rupert Vassell who was inside the office also.
His Lordship: You knew him before?
Witness: Yes, sir.
His Lordship: Did you know him by both names, before?
Witness: I, no, sir, I know him as Legamore.
His Lordship: So, how were you able to, the warrant that you took out, you took it out in what name?
Witness: Rupert Vassell o/c Legamore.
His Lordship: But you said you didn't know his name before?
Witness: But I spoke to my colleague.
His Lordship: You got Rupert Vassell from your colleague?
Witness: My colleague.
His Lordship: You asked him who this Legamore was?