‘Big Brother is watching you’- how criminal defence lawyers handle video identification evidence

Posted on 21st October 2020

We all know that so much of our daily lives is observed by cameras of some form. Most of our high streets, shopping precincts and public places are watched over by CCTV cameras, whether it is outside your local newsagent or on the London Underground.

And the demand for surveillance goes further now, with mobile phone film footage, ‘RING’ doorbells (other brands available) and home security cameras outside and even inside peoples’ homes.

As society changes, how do we, as lawyers, deal with challenging these varying forms of visual identification, which are increasingly being relied upon by the Police and the Prosecution?

The answer is that we look to challenge these different forms of evidence as we would any type of identification evidence.

PACE (Police and Criminal Evidence) Code

Generally, we look to The Police and Criminal Evidence Act 1986 – we call it PACE for short – and in particular at Code D of that Act, which deals with the issue of identification evidence generally. (Whilst 1986 predates the concept of ‘RING’ doorbell etc., the principles are still the same).

The Code sets out a series of procedures for the Police when dealing with identification evidence. The procedures have been updated to keep pace with the developments in technology.

For example, the CPS and the Police issued specific guidance for procedures to be followed where there has been identification of a suspect from social media. We have had a number of cases where images of suspects have been posted on – for example Facebook – and witnesses have come forward to identify an individual from that posted image.

In all these circumstances, the Police must follow the procedures in PACE Code D. If they fail to do, so we are able to challenge the admissibility of the footage as evidence under s78 PACE.

Magistrates Court Guidelines

Another consideration for the Court dealing with video identification is the guidance which should be given to the tribunal in the Magistrates Court or the jury in the Crown Court. The guidance is set out in a Court of Appeal case – R-v-Turnbull. The guidelines essentially urge the need for caution in dealing with the reliability of identification. The list of warnings given were originally issued with eye witnesses in mind, but are also valid for our video footage scenario.

Video imagery and facial mapping expertise

We have also found other ways to question the video evidence relied on by the Prosecution. For example we regularly instruct video imagery and facial mapping experts to question and comment on the quality and hence the reliability of such evidence.

The Police will very often serve us with a compilation tape of the footage relied upon, capturing what they believe to be the pertinent imagery, but we will always request a complete footage from all appropriate cameras so we can build the full picture. Perhaps there was a relevant piece of footage preceding the compilation given to us? Perhaps the camera did not capture the whole incident? We need the complete picture to advise our client.

As technology develops and surveillance becomes more prevalent and more sophisticated, we continue to question its reliability as evidence produced before the Courts.

If you are facing a police investigation or court proceedings that involve issues around video evidence call one of our Criminal Defence experts for advice on 0808 231 6369 or request a call back online.

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