Law Report: No direction on video required: Regina v Downey - Court of Appeal (Criminal Division)(Lord Justice Evans, Mr Justice Curtis and Mr Justice Morison), 17 March 1994

In a case where the jury is asked to compare a still photograph of a man taken from a video film with the defendant in court, there is no invariable rule that the trial judge must give a specific direction to the jurors on how they should approach their task of deciding whether the man in the photograph was the defendant in the dock.

The Court of Appeal dismissed the appellant's appeal against convictions for robbery and and conspiracy to steal. The appellant was charged with robberies at two service stations. At both service stations a video camera recorded the events at the till but did not enable the robber to be identified. The video film of the thief walking across the forecourt at one station, a still photograph from one frame and a photograph of the appellant after arrest were shown to the jury. After the robberies the appellant was stopped in a car in which a gun, black tights adapted for use as a mask and gloves were found.

The appellant appealed against the convictions on the grounds that the trial judge erred in ruling that evidence relating to one robbery was admissible in respect of the other, in not giving the jury a specific direction in accordance R v Dodson and Williams (1984) 79 Cr App R 220 about the dangers of the jury identifying the defendant and in not directing the jury in accordance with R v Goodway (1994) 98 Cr App R 11 that the appellant might have had an innocent explanation for alleged lies in a police interview about the gun in the car.

James Montgomery (Registrar of Criminal Appeals) for the appellant; Jonathan Lowen (CPS) for the Crown.

LORD JUSTICE EVANS, giving the court's judgment, said that the judge was entirely correct in inviting the jurors to consider whether the evidence established that both offences were committed by the same man, whoever that man might be, and if they were satisfied that that was the case, then they were entitled to take account of the evidence relating to both offences when reaching their decision in respect of each.

Turning to whether the process of comparison between the man shown in the still photograph and the photograph of the defendant after his arrest and between the still photograph and the defendant in court was one where the failure to give the jury a specific warning about the dangers constituted a misdirection, nothing in Dodson was intended to go so far.

A mandatory direction was justified in cases of identification by a witness. In such a case, the jury was cautioned against accepting too readily the evidence of a witness. Inviting the jury to consider whether the person shown in a photograph was the defendant who had appeared before it was a different process. To some extent the difficulties were obvious to any layman. The quality of the photograph was self-evident, as was the extent to which the photograph was a close- up representation of the person's face.

It was always possible that special considerations would arise. For example, if there was a questions as to whether the defendant had the same appearance at the time when the offence was committed as he did when he appeared in court. No such considerations arose here.

There was no scope in the present case for any direction which would not have been a statement of the obvious to any 'average person' who was asked whether he was sure that the person shown in the still photograph was the defendant whom he saw in court.

No direction was called and Dodson did not intend to lay down an invariable rule that something must be said, however obvious and banal, in every case. The appropriate direction would depend on the circumstances of each case, and when no special factor arose, the absence of a direction could not of itself amount to a misdirection.

The judge misdirected the jury by omitting to say that there might be an innocent reason for the lie. However, the verdicts should not be set aside on this ground and the proviso should be applied.