Law Report: Video recognition evidence allowed: Regina v Caldwell; Regina v Dixon - Court of Appeal (Criminal Division)(Lord Justice Simon Brown, Mr Justice Henry and Mr Justice Potts), 25 May 1993

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Evidence from police officers, who had viewed a video tape of a robbery, that they recognised the accused was prima facie admissible. The trial judge, having weighed the probative value of the evidence against its prejudicial effect, has a discretion to exclude it.

The Court of Appeal dismissed appeals by the appellants, Paul Caldwell and Terence Dixon, against their convictions of robbery in Warrington Crown Court before Judge Phillips and a jury.

A robbery of a general store and off-licence by four men was recorded by a video security camera. The video tape was viewed by groups of police officers. As many as 100 saw it. Each appellant was recognised by two officers.

The appellants appealed on the ground, among others, that the police officers' recognition evidence should not have been admitted as its prejudicial effect outweighed its probative value. It was argued that the procedure adopted for the viewing of the video was haphazard, involving several unidentified officers watching together with a clear risk of comment from another officer. It was also argued that cross examination of the officers was gravely inhibited by the risk of prejudicial information emerging before the jury.

Richard J Pratt; Michael Pickavance (Registrar of Criminal Appeals) for the appellants; Michael Farmer (CPS) for the Crown.

LORD JUSTICE SIMON BROWN, giving the court's judgment, said that recognition evidence of this kind was, subject to the discretion of the trial judge to exclude it, prima facie admissible. The mere fact that police officers' knowledge of an accused came from the accused's previous criminal activities could not operate to bar the admissibility of their recognition evidence - any such approach would unfairly advantage those with criminal records.

The jury was able to view the video and test the officers' recognition evidence by reference to their own perceptions, but that was not to deny the officers' evidence any probative value. Although the defence inevitably faced difficulties in challenging the extent of the officers' knowledge of the accused, so long as the problem was sensitively handled - as it was here - the difficulty seemed manageable.

R v Fowden and White (1982) CLR 588, where convictions based on recognition evidence were quashed, was not a decision of wide application and was a long way from the present case. The trial judge here was entitled to admit the recognition evidence.

Commenting on video-based recognition evidence, some analogy existed between showing videos and showing photographs as it did between video showing and identification parades. How close the analogy was would depend on the circumstances. Ordinarily, recognition evidence was quite different from identification evidence. Nevertheless, some of the considerations underlying the safeguards built into the regulatory procedures laid down for identification parades and the showing of photographs came into play with regard to the showing of video tapes. Particularly where the quality of the video was poor or the opportunity it provided for recognition was limited - when therefore the analogy with showing photographs and identification parades was closest - it would be desirable to regulate its showing so as to maximise the prospects of any recognition evidence being truly spontaneous and independent.

Such video recordings were becoming more prevalent. It was therefore desirable that procedures should be instituted for regulating video showings where there already existed known suspects. Regulation appeared less necessary where a video was shown, whether to police officers or the wider public, with a view to finding a suspect.

The court urged that some immediate thought be given to the matter at a high level.

Ying Hui Tan, Barrister