1. ' LORD ACKNER,---In the course of giving the reasons of the Judicial Committee of the Privy Council for their advice in Junior Reid v. R, Roy Dennis v. R, Oliver Whylie v. R and Errol Reece and others v. R on appeal from the Court of Appeal of Jamaica, said: Identification evidence Judicial experience has established that there are certain categories of evidence which are, by their very nature, potentially unreliable and in respect of which, in order to avoid the serious danger of wrong convictions, special warnings and directions have to be given to juries. Such categories include the evidence of children who, although old enough to understand the nature of an oath and thus competent to give sworn evidence, may yet be so young that their comprehension of events and of questions put to them, or their powers of expression, may be imperfect. In sexual cases, the victims of the alleged offences may have a variety of motivations, some of which may never have occurred to a jury, for giving false evidence. An accomplice, with a purpose of his own to serve, such as the hope of lenient punishment, may well tend, when giving evidence for the prosecution, to suggest that the entirety or the majority of the blame for the crime should fall upon the accused rather than upon himself. Yet this possibility may again not be apparent to a jury.
2. Accordingly, in such cases where the inherent unreliability of the witness might otherwise escape the jury, the trial judge has to give the appropriate warning and explanation of the special caution required when considering that type of evidence.
3. ' It is only in comparatively recent times that identification evidence has emerged as a class of its own. Some 27 years ago in The People (A-G) v. Dominic Casey (No.2) [1963] IR 33 the Supreme Court of Ireland decided that it was desirable in all cases where the verdict depended substantially on the correctness of visual identification of the accused that the attention of the jury should be drawn in general terms to the fact that in a number of instances visual identification of an accused person had been established, after conviction, to have been erroneous, and therefore, to the possibilities of mistake. This gave rise to the necessity for caution when considering such evidence.
4. In the reserved judgment of the Court Kingsmill Moore, J. Said (at 39-40): "We are of opinion that juries as a whole may not be fully aware of the dangers involved in visual identification nor of the considerable number of cases in which such identification has been proved to be erroneous; and also that they may be inclined to attribute too much probative effect to the test of an identification parade. In our opinion it is desirable that in all cases, where the verdict depends substantially on the correctness of an identification, their attention should be called in general terms to the fact that in a number of instances such identification has proved erroneous, to the possibilities of mistake in the case before them and to the necessity of caution.
5. Nor do we think that such warning should be confined to cases where the identification is that of only one witness. Experience has shown that mistakes can occur where two or more witnesses have made positive identifications. We consider juries in cases where the correctness of an identification is challenged should be directed on the following lines, namely, that if their verdict as to the guilt of the prisoner is to depend wholly or substantially on the correctness of such identification, they should bear in mind that there have been a number of instances where responsible witnesses, whose honesty was not in question and whose opportunities for observation had been adequate, made positive identifications on a parade or otherwise, which identifications were subsequently proved to be erroneous...."
6. ' Some ten years later there were two much publicised cases where a miscarriage of justice was established, despite the apparent strength of the identification evidence Dougherty and Virag (referred to in the Report to the Secretary of State for the Home Department of the Departmental Committee on Evidence of Identification in Criminal Cases (Chairman Lord Devlin) (HC Paper (1975-76) No. 338) paras 2.24, 3.115-119). This brought identification evidence in England, as a separate class of evidence, into sharp focus.
7. ' In the Eleventh Report of the Criminal Law Revision Committee, Evidence (General) (Cmnd 4991) paras 196-197, 199, pp. 117-119 published in 1972, the committee stated that it had been much concerned by the danger of wrong convictions on account of mistaken identification of the accused. This it regarded as 'by far the greatest cause of actual or possible wrong convictions'. The committee highlighted the difficulty that the identifying witness might very well be perfectly honest and clearly appear to be so and his evidence therefore might seem entirely convincing. The, majority of the committee were in favour of a statutory requirement that the Judge should give a warning of the special need for caution before convicting in reliance upon the correctness of one or more identifications of the accused, where the case depended wholly or substantially on such evidence. The committee emphasized that the need for the warning was not limited to cases where the accused was previously unknown to the witness because, even where they are known to each other, there may be a danger that the identification is mistaken---at least if the witness had only a limited opportunity to observe the offender.
8. ' Subsequently, the Home Secretary appointed a committee under the chairmanship of Lord Devlin to consider identification evidence in criminal cases. That committee's recommendation was even stronger. The committee stated (para 4.81, pp. 93-94): ' We have decided that an imprecise warning would not be good enough. Nor do we think that it would be satisfactory merely to tell the jury the rule; they cannot be expected to apply if full- heartedly unless they are given the reason for it. This is especially necessary in that the danger in identification evidence is hidden. The extent to which a man may deceive himself is well-known to psychologists and to experienced criminal lawyers, but it is not yet universally realised-Jurors who have thought a little about the point know of course that an identification may be mistaken but do not appreciate the extent to which an apparently convincing witness may be mistaken.' (The committee's emphasis.)
9. ' The committee recommended that, where the evidence for the prosecution consisted wholly or mainly of evidence of visual identification, the jury should be informed that it was not safe to convict upon such evidence unless the circumstances of the identification are exceptional or unless the identification is supported by substantial evidence of another sort (see para 4.83, pp. 94-95). It was however recognized that there would have to be exceptions to this general rule in special circumstances to be worked out in practice.
10. ' Shortly after the publication of the Devlin Committee's report, there were listed before the Court of Appeal a number of appeals where identification was the essential issue, in order to give the Court of Appeal the opportunity to lay down guidelines (R v. Turnbull [1976] 3 All ER 549, [1977] QB 224).
11. The Court of Appeal, although seeking to following the recommendations of the Devlin Committee, avoided the use of the phrase `exceptional circumstances' to describe situations in which the risk of mistaken identification was reduced. Lord Widgery, C..1, giving the judgment of the Court, said ([1976] 3 All ER 549 at 554, [1977] QB 224 at 231): "...The use of such a phrase is likely to result in the build-up of case-law as to what circumstances can properly be described as exceptional and what cannot. Case-law of this kind is likely to be a fetter on the administration of justice when so much depends on the quality of the evidence in each case. Quality is what matters in the end. In many cases the exceptional circumstances to which the report refers will proved evidence of good quality, but they may not; the converse is also true.'
12. ' The guidelines laid down by that case are, of course, by now well-known and consistently applied in England and in a number of Commonwealth countries. It is however convenient for the purpose of dealing with these appeals, in all of which visual identification evidence was the crux of the prosecution case, to set out yet once more the following much quoted except ([1976] 3 All ER 549 at 551-552, [1977] QB 224 at 228-229): `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.
13. Secondly, the Judge should direct the jury to examined 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?
14. 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?
15. 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 remined 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 in purporting to recognize 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.'
16. ' In addition the following short passage has particular reference to these appeals [1976] 3 All ER 549 at 553, [1977] QB 224 at 229-230): "When, in the judgment of the trial Judge, the quality of the identifying evidence is poor, as for example when it depends solely on a fleeting glance or on a longer observation made in difficult conditions, the situation is very different. The Judge should then withdraw the case from the jury and direct an acquittal unless there is other evidence which goes to support the correctness of the identification.'
17. ' It is perhaps as well to recall that a little over a year laterlord Widger, C.J. Said that R v. Turnbull is intended primarily to deal with the ghastly risk run in cases of fleeting encounters (see R v. Oakwell (1978] 1 All ER 1223 at 1227, [1978] 1 WLR 32 at 36-37). This statement underlines how seriously the Court rates the risk. Subsequent cases have emphasized that a mere statement that a jury must treat visual identification evidence with extreme caution, accompanied by detailed references to the witness's opportunity to identify the accused---e.g. How long he observed the accused, his distance from the accused, the state of the light, how the accused was dressed and other such relevant detail, was not sufficient. This is well illustrated in R v. Dickson [1983] 1 VR 227, a decision of the Supreme Court of Victoria. On behalf of the applicant it was submitted that the trial judge had not brought home to the jury the reasons for there being the danger in identification evidence of erroneous convictions. The prosecution had urged that had been achieved by the Judge saying (at 231): "Now, you must remember that human nature is fallible, that persons' recollections sometimes are hazy, that the powers of observation of an event or something may be just fleeting or may be made in such circumstances as not to be relied on...."
18. ' Morevoer, that Judge had told the jury that they had to exercise extreme care in determining whether they were satisfied with the evidence as to the identification. He further told them that in the past juries had made mistakes by acting on false identification evidence.
19. ' The Supreme Court was not satisfied that what the Judge had said effectively alerted the jury to the danger that witnesses, whom they might regard as honest and convincing, might nevertheless be mistaken. The following observations of the Court are particularly pertinenr (at 231): `It is difficult to convey to the jury the reality of particular dangers which exist in the evidence without drawing to the attention of the jury two things which they are unlikely to know. The first is that experience in the Courts over the years has shown that in a not insignificant number of cases erroneous identification evidence by apparently honest witnesses has led to wrong convictions. For this knowledge the Judge draws largely on accumulated judicial experience. One sees instances of erroneous identification from time to time...The second thing which they jury are unlikely to know is the substantial degree of risk that honest witnesses may be wrong in their evidence of identification. Jurors, who, unlike trial lawyers, have not given thought to the way in which evidence of visual identification depends on the witness receiving, recording and recalling accurately a fairly subjective impression on the mind, are unlikely to be aware of the extent of the risk that honest and convincing witnesses may be mistaken, especially where their opportunities for observing a previously unknown offender were limited. The best way of explaining and bringing home to the jury the extent of this risk is by explaining the reason for there being the risk and that it is essential to distinguish between honesty and accuracy and not assume the latter because of belief in the former."
20. ' The Court was of the opinion that the trial Judge had not sufficiently emphasized the reasons for the danger of identification evidence being of a greater order than the risk, inherent in any evidence depending on human recollection, that the witness may be honestly mistaken. He had not stressed that honesty as such is no guarantee against a false impression being so indelibly imprinted on the mind as to convince an honest witness that it was wholly reliable.
21. ' In a very recent decision of the Privy Council on appeal from the Court of Appeal of Jamaica, Scott v. R [1989] 2 All ER 305 at 314-315, [1989] Ac 1242 at 1261, Lord Griffiths, giving the judgment of the Board, reiterated the importance of the Judge discussing with the jury the fundamental danger in identification evidence of the honest but mistaken witness, who is convinced of the correctness of his identification, giving impressive evidence. He said: "....If convictions are to be allowed on uncorroborated identification evidence there must be a strict insistence on a Judge giving a clear warning of the danger of a mistaken identification which the jury must consider before arriving at their verdict, and that it would only be in the most exceptional circumstances that a conviction based on uncorroborated identification evidence should be sustained in the absence of such a warning."
22. ' R v. Turnbull is, of course, followed in Jamaica. However, there have been two reservations expressed by the Jamaican Court of Appeal about the guidelines in that case, such reservations being no doubt due to the escalating violence which has been experienced there, coupled with the intimidation, indeed the suspected murder, or potential witnesses.
23. ' The Director pf Public Prosecutions, Mr. Andrade QC, in his most helpful and thorough address to their Lordships, invited their attention in particular to the decision of the Jamaican Court of Appeal in R v. Graham and Lewis (26th June, 1986, unreported). Rowe P, giving the judgment of the Court, referred to that part of the judgment of Lord Widgery CJ in R v. Turnbull [1976] 3 All ER 549 at 553, [1977] QB 224 at 229-230 which relates to the obligation of the Judge in certain circumstances, referred to above, to withdraw the case from the jury and direct an acquittal. He said: "In R v. Whylie (1977) 25 WIR 430 we considered that if this passage was taken too literally the lines separating the functions of the Judge and the functions of the jury could become blurred. We thought that, if there was insufficient evidence to support the prosecution's case, a no case submission would succeed and that, if the prosecution witnesses were discredited to the extent that they became manifestly unreliable, the rule laid down in the Practice Direction by Lord Parket, CJ [Practice Note [1962]1 All ER 448, [1962] 1 WLR 227] would equally apply and a no case submission would be upheld. We hesitated to lay down a special rule for visual identification evidence which would be anomalous having regard to the general rule that the jury are in the best position to attach weight to admissible evidence from whatsoever source it might arise."
24. ' However, this observation does seem at variance with the judgment of the Court of Appeal given by Carberry JA in the instant appeal of Junior Reid. The learned Judge there quoted the following excerpt from the judgment given by Lord Diplock in the Privy Council case of Reid v. R 11979] 2 All ER 904 at 907, [1980] AC 343 at 347: "... But in the light of what they had already held and of the guidelines as to the way in which evidence as to identification should be treated as laid down by the English Court of Appeal in R v.
25. Tumbull [1976] 3 All ER 549, [1977] QB 224 which is followed by the Courts in. Jamaica, the only direction that the Judge could properly have given to the jury was that on the state of the evidence before them the appellant was entitled to be acquitted."
26. ' Carberry JA accepted that the effect of this passage was 'to move the law in Jamaica closer to the law as indicated in England in R v. Turnbull'.
27. ' Their Lordships have no doubt that the direction of Lord Widgery, C.J. That-- ' When, in the judgment of the trial Judge, the quality of the identifying evidence is poor, as for example when it depends solely on a fleeting glance or on a longer observation made in difficult conditions...[the] Judge should then withdraw the case from the jury and direct an acquittal unless there is other evidence which goes to support the correctness of the identification applies with full force and effect to Criminal proceedings in Jamaica.
28. ' Again in R. v. Graham and Lewis (26th June, 1986, unreported) the Court of Appeal quoted the familiar passage from its decision in R. v. Whylic (1977) 25 WIR 430 at 433: ' We have considered the decisions in the cases of Arthurs v. A.-G. For ' Northern Ireland ((1970) 55 Cr App R 161), R. v. Turnbull ([1976] 3 All ER 549, [1977] QB 224), R. v.
29. Peggy Gregory ((1973) 12 JLR 1061), R. v. Desmond Bailey (1973, unreported) and R. v. Dennis Gayle ((1973) 12 JLR 1077), and from these cases we extract the principle that a summing-up which does not deal specifically, having regard to the facts of the particular case, with all matters relating to the strength and the weaknesses of the identification evidence is unlikely to be fair and adequate.
30. Whether or not a specific warning was given to the jury on the dangers of visual identification is one of the factors to be taken into consideration in determining the fairness and adequacy of the summing-up;Our emphaks.)
31. ' In Scott v R the Court of Appeal of Jamaica, in rejecting the application for leave to appeal, obviously had the above-quoted passage from R. v. Whylie in mind when it said (see [1989] 2 All ER 305 at 315, [1989] AC 1242 at 12611262): ' A failure to warn the jury of dangers inherent in visual identification cases, it must be borne in mind, is but one of the factors to be taken into consideration in determining the fairness and adequacy of a summing up.'
32. ' However, as the judgment of the Privy Council emphasized, "This passage gives too little weight to the recognized dangers of convicting on uncorroborated evidence of identity' (see [1989] 2 All ER 305 at 315, [1989] AC 1242 at 1262).
33. ' It is of course true, as was pointed out in terms in R v. Turnbull [1976] 3 All ER 549 at 554, [1977] QB 224 at 231, that since 1966 the Court of Appeal has had power to quash a conviction, if in the judgment of the Court on all the evidence the verdict is either 'unsafe or unsatisfactory' (see the Criminal Appeal Act, 1966, S. 4 (1) (a); now the Criminal Appeal Act, 1968, S. 2 (1) (a)). This power is wider than the power previously enjoyed under the Criminal Appeal Act, 1907 which conferred the same power as that enjoyed by the Court of Appeal of Jamaica under S. 14 of the Judicature (Appellate Jurisdiction) Act. This provides as follows: "(1) The Court on any such appeal against conviction shall allow the appeal if they think that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence or that the judgment of the Court before which the appellant was convicted should be set aside on the ground of a wrong decision of any question of law, or that on any ground there was a miscarriage of justice, and in any other case shall dismiss the appeal..."
34. ' Similar powers are enjoyed by the Supreme Court of New South Wales. It is however apparent from R. v. De-Cressac (1985) 1 NSWLR 381 that the principles enunciated in R. v. Turnbull [1976] 3 All ER 549, [1977] QB 224 apply in New South Wales. In that case the Crown's case was dependent entirely upon identification evidence. None of the four witnesses had any previous knowledge of the appellant, their evidence being confined to observations immediately prior and subsequent to and contemporaneous with the robbery. The Court held that the summing up was significantly deficient in that it did not contain an appropriate and thorough warning by the Judge to the jury both in relation to the general dangers inherent in identification evidence, as well as in relation to some of the particular aspects of the evidence which required the jury to exercise special caution.
35. The Court concluded that the deficiency was not of a minor character and therefore it had resulted in a substantial miscarriage of justice. Street, C.J. Giving the judgment of the Court said (1 NSWLR 381 at 390): "The miscarriage relied upon by the present appellant was of a serious nature. Fullagar, J. In Mraz v.
36. The Queen ((1955) 93 CLR 493 at 514), in a passage that has been repeatedly referred to with approval in later High Court decisions, said of the proviso in S. 6 [of the Criminal Appeal Act 1902 (NSW)] that: "....It ought to be read, and it has in fact always been read, in the light of the long tradition of the English criminal law that every accused person is entitled to a trial in which the relevant law is correctly explained to the jury and the rules of procedure and evidence are strictly followed. If there is any failure in any of these respects, and the appellant may thereby have lost a chance which was fairly open to him of being acquitted, there is, in the eye of the law, a miscarriage of justice. Justice has miscarried in such cases, because the appellant has not had what the law says he shall have, and justice is justice according to law."
37. Their Lordships have no hesitation in concluding that a significant failure to follow the guidelines laid down in R. v. Turnbull will cause the conviction to be quashed because it will have resulted in a substantial miscarriage of justice. [His Lordship then dealt with the facts and merits of the individual appeals.]