Turnbull Guidelines

Introductions:

The rules that are guide judges and magistrates during a trial regarding identification
are called the Turnbull guidelines. Initially, these rules and guidelines for the jury warn
the jury about different matters they face in the trial about the identification. However,
we know that the jury system has been abolished in Malaysia now. Here we discuss the
Turnbull guidelines and directions that are helpful for the court system. Moreover, how
the judges used these guidelines and directions during the trial. These guidelines are
necessary where the case against the accused depends wholly or substantially on the
correctness of one or more identification of the accused. Suppose this accused is
alleged by the defence to be mistaken identification. A mistaken witness maybe
convinces one or more other witnesses might all be mistaken. The court only accepts
the evidence of identification if the evidence is admissible. The identification of every
witness should be examined. Initially, if the witness's identification is not satisfactory, the
judge issues a warning to the jury according to the Turnbull guidelines. However, now
the jury system has been abolished in Malaysia. Therefore we elaborate on Turnbull's
guidelines or directions in the court. (Elton, 2019)

Use of Turnbull Guidelines during court proceedings:

As we know, initially, Turnbull guidelines are used by the judges to issue warnings to
the jury about the identification of the evidence. There are different circumstances
where the judge issues warnings to the jury about identifying evidence, like paying
attention to circumstances and time of observation. For example, how much time
passed when the witness observed the scene, what was the distance between the
witness and the crime scene, what was the status of the light and did the witness see
the accused before the crime etc. if the judge sees any inherent weakness in the
identification of the evidence then judge emphasis the jury to pay attention to this part.
For example, the different states were given to the police and the person identified; he
cannot identify the other person at the crime scene and breaches code D etc. if the
quality of the evidence is satisfactory, then the judge did not guide the jury about the
other supporting evidence and left the case on a jury. If the evidence is poor, the judge
asks the jury to require more supportive evidence to identify the accused. However, we
know that the jury system has been abolished in Malaysia. Therefore, we discuss using
these Turnbull guidelines in the court system to identify the accused by the witness.
(Helm, 2021)

It is the simple rule that before the discontinuation of the jury system judge gives the
warning and direction to the jury according to the Turnbull guidelines. However, now the
judge uses these Turnbull guidelines in the course of trial during the court proceedings.
We discuss the one case here to understand how the judge uses the Turnbull
guidelines in the course proceedings while identifying the accused by the witness. In the
case R v Turnbull 1977 QB 244 (CA). The judge should follow the Turnbull guidelines
as follow;

The judge should use particular caution before convicting based on the identification
evidence.

The judge should consider closely the circumstance and conditions that the witness
uses during the identification of the accused.

The judge should be aware of the consequences if the witness mistakenly identifies the
accused, leading to a miscarriage of justice. Moreover, it is dangerous for the court
proceedings.

If the proceedings of the judges are later declared inadequate, then the accused can
appeal at a higher forum. (Helm R. K., 2021)

R v Pattinson 1996 1 CR App R 51 (CA):

Facts: it is the case of robbery of the jewellery shop. The appellant was convicted of
this crime. Security camera pictures were poor and were not identify the accused, but
the number of witnesses used to identify the robbers. The judge used the Turnbull
directions.

Legal principle: the appellant has the right to appeal. As we know, the judge uses the
turnbull guidelines. However, she did not explain the miscarriage of justice because of
the mistaken identity. She did not explain the weakness of the identification as the poor
pictures of the security cameras. In this case, Henry LJ: "the summing up might have
been better focused on the question of identification had all the evidence as to
identification been dealt with as a discrete part of the evidence".

Identification evidence according to the Turnbull guidelines is not required in all cases.
However, where judges feel it necessary to require the identification evidence are those
cases where the prosecution relies wholly or substantially on the identification evidence.
If the witness knew the accused previously, it does not mean that Turnbull's direction
will not require by the judge. The importance and necessity of the Turnbull guidelines
depend on the circumstances of the case. For example, when the defendant admits that
he was present at the scene, but he did not commit the crime, in this case, there is no
need for Turnbull guidelines. However, when many people are involved in public
disorder, and one of them is accused, the judge's Turnbull guidelines are required to
identify the accused.

In some circumstances where the judge does not require the Turnbull guidelines. Like,
as when a witness quickly describes the accused with the help of his height, the colour
of his hair, etc., when the witness identifies the object such as vehicles and clothes, etc.,
and when the identification of the accused is made by the photographs or video
recording from the crime scene.

Types of identification:

Different identification types are used in court trials when identifying the accused in a
case. These identification are given below;

Pre-trial identification:

In pre-trial identification, police should follow the detailed identification procedure

according to the code of practice. They should follow all procedure whether the police
knows about the suspect and is available to the police or whether they do not know
about the suspect and is unavailable to them. They follow the different procedures
according to the known and available of the suspect and unknown and unavailable of
the suspect.
Known and available:

When the police know the suspect, they also have sufficient information about the
suspect and the justifiable reason behind the suspect's arrest. If the police did not have
any information about the suspect's involvement in the offence, they did not have the
authority to arrest the suspect. It means the police have credible information about the
suspect regarding the suspect's involvement in the offence. There are two possibilities
of the suspect's availability: the suspect is immediately too available to police and will be
available within a reasonable short time. When a suspect is available to the police, the
identification starts with different identification procedures or according to the turn bull
guidelines.

Unknown and unavailable:

When a suspect is unknown and unavailable to the police, the witness helps the police
reach the suspect involved in the offence. Police investigate the people around the
crime scene if anyone sees the suspect around the crime scene to identify the suspect.
Police also shows the pictures of the suspected person from the police database to
people to identify one of them if seen by anybody. There is a legal procedure to show
the suspect's picture to the witness, and police should be followed it during the
investigation. Police should describe the suspect before a picture is shown to the
witness. They should have 12 pictures of the witness and not less than 12. This picture
should be a similar type and six photographs printed on one page shown to the witness.
If one witness identifies the suspect involved in the offence, these photographs did not
show to any other witness. If both witnesses identify the suspect, police called them to
more types of identification like video identification, identification parade or group
identification etc. The judge should focus on during the court proceeding if the time of
gap between observation and identification is longer than the evidence is unreliable. (Ali,
2020)

Identification by social media:

As we know that this is the time of social media. Technology developments change the
whole world into a global village. Every one has sufficient accuses to social media.
Social media play an essential role in identifying the suspect involved in the different
types of offences. For example, if a person identifies someone from informally viewing
the pages on Facebook. The person who identifies the suspect involved in the offence
by using social media shall call for the video identification procedures. When social
media make an identification, the judge has the responsibility to look at the
circumstances of identification and other factors that may affect the reliability of the
evidence. Judge ensure that identification is made correctly and it is reliable. The judge
pays attention to the procedure of the identification and observes some questions raised
by the police to the witness for the identification of the suspect involved in the offence.
The judge ensures that the witness gives the name of the suspect before the viewing of
the suspect, the witness reads the profile of the identified person from social media, a
present person has prompted the witness, nature and quality of the images viewed by
the witness and copies of the images obtained by the witness. There are some
circumstances where the judge should ensure the eyewitness identification procedure
should be followed. An identification procedure is necessary when the suspect disputes
the person and eyewitness claims that he had seen the suspect on previous occasions.
It is not possible to conduct an ant identification procedure in this case. Any other
procedure where the judge cannot attain proof of the suspect's involvement in the
offence. For example, when the suspect admits he was present at the crime scene, he
explains the actual happening at the crime scene, and the eyewitness did not tell him
this before. Moreover, if the eyewitness recognizes the suspect involved in the crime,
there is no dispute between the suspect and eye witness.

When an eyewitness sees the suspect at the crime scene and is involved in the crime,
many identification procedures adopt to identify the suspect by the eye witness. These
procedures adopt to evaluate the eye witness's ability to identify the suspect person
seen by an eye witness at the crime scene and protect the suspect from mistaken
identification. These procedures are video identification, parade identification and group
identification etc. (Ali W. N., 2021)
Video identification:

The police do many video identification procedures to allow eye witnesses to identify the
many individuals during the video identification, including the suspect involved in the
offence. In this process, eyewitnesses view the different types of videotapes to identify
the suspect. This process removes the other process that shows the photographs
collected from the police database to the eyewitness to identify the suspect. In this
process, eyewitnesses view the video and recognize the suspect involved in the offence.

Identification parade:

In this identification process, witnesses identify the one suspected person from the
group of people arrested by the police for suspected reasons that may commit the crime.
This identification starts immediately after the arrest of the suspected person. If many
people are involved in the crime, then the identification immediately starts to identify the
suspected person and arrest the other suspected person. It is a traditional identification
method that we see in films and television. Police stand the many people they arrested,
including the suspected person and witness, identify the suspected person from these
number of individuals that stand in front of him. In this identification, the witness's role is
crucial because police depend on the witness identification during the parade
identification. (bin Abdul Khalid, 2018)

Group identification:

This procedure of identification is used as an alternative to the identification parade.

This procedure is done by videotapes or physically as an identification parade. In this
procedure, the witness identifies the suspect in a public place where many numbers of
people in which suspect include. The witness should identify the suspected person from
several people in a public place. For example, if a person is arrested in the case of
robbery. Police conducted the video identification, and the defendant rejected the police
identification by showing some other pictures from different angles; then, the police
conducted the group identification and asked the witness to identify the suspect from
the bar, and the defendant stood with the witness and witness identify the same person
from the bar that is already suspected by the police. This is the group identification done
by the witness in a public place.

Confrontation:

Suppose the police did not arrange the parade identification, video identification or
group identification for the witness to identify the suspect involved in the offence. In that
case, the police have the option to show the suspect directly witness. This is called
confrontation. In this procedure, the suspect's consent did not require to meet with the
witness. Police arranged the direct meeting of the suspect and witness to confirm the
identification of the suspect that they arrested. This procedure is only performed when
other procedures did not make possible to perform by the police. (Hassan, 2018)

Other forms of identification covered by code D:

Many other forms of suspect identification are also covered in code D, irrespective of
the above identification procedures. These identification forms are given below in detail;

Identification by fingerprints and footwear impression:

This is the era of modern technology advancement in which many procedures are
performed to identify the suspect involved in the offence. Nowadays, fingerprint
identification is a widespread process in court cases. In this identification opinion and
expertise of the fingerprint experts matter during the trial in the court to identify the
suspect. During the court proceeding, the prosecution must prove that the fingerprint
taken from the crime scene matches the suspect's fingerprint that was placed on the
form. Footwear is another way of identifying the suspect, but this is not considered a
reliable source of identification. However, if an expert presents an evaluative opinion on
this identification, then the court may admit this identification. The report of the expert
matter in this identification process, if they are presented logically and transparently,
was admitted by the court. When fingerprint identification of the suspect is made, there
is no chance of mistaken identity for the court. (Singh, 2021)
Examination of the established identity and the taking of photographs:

It is the identification process done by the police after the suspect's arrest. The police
search for any marks, features, or injuries related to the suspected person to ensure
that he is involved in the offence. Police examine all aspects of the crime scene and
then try to find any mark or injury that identifies the suspect involved in the crime and
take the photograph of this mark and injury for the court proceedings as evidence.

Identification by the body sample and impressions:

In this type of identification, police get the sample from the person's body like hair, blood
sample, urine, and any other necessary for the examination to identify the person
involved in the offence. The experts examine the sample in different ways and confirm
the person's identification. In this identification, a high level of technological labs and
well-trained experts are involved in identifying the suspect involved in the offence.
(Nagwanshi, 2018)

Voice identification:

The speech scientist makes voice identification as speaker comparison. It is more

difficult to identify a suspect with voice identification than with visual identification.
However, when experts use different tools like acoustic, spectrographic and
sophisticated auditory techniques, they help quickly identify the suspect with voice
identification. (Robson, 2018)

Dock identification:

If a person did not identify the code D identification, it means that this person accused
as the first time in the trial. In other ways, if a person commits the crime the first time
and the witness does not know his name and does not identify the code D procedure, it
identifies in another way called dock identification. (Skalon, 2020)

The evidence may be excluded under s78 PACE 1984:

"In any proceeding, the court may refuse to allow evidence on which the prosecution
proposes to rely on being given if it appears to the court that, having regard to all the
circumstances, including the circumstances in which the evidence would have such an
adverse effect on the fairness of the proceedings that the court ought not to admit it."

When the evidence is of good quality, it is accepted by the court and continues the
proceedings. If the quality of the evidence is poor, then the judge requires supporting
evidence according to the Turnbull guidelines. When the witness identifies the accused
with the photographs, the judge also sees the photographs to check the quality of the
images and consider the time between the observation and identification. If the quality
of the images is poor, then the judge requires supportive evidence or a witness that
identifies the accused because he knows the accused. If solid evidence is presented to
the judge, there are two people at the crime scene at the time. There is a dispute on the
other personal identification, and the accused said that he was not present at the crime
scene at the time of the crime. Then the judge follows the turnbull guidelines to reach
the identification of the accused that committed the crime. These guidelines always help
the judges during the trial in the course proceedings. The main advantage of these
guidelines is to protect the person from mistaken identification by the witness. These
guidelines help the judges ensure the proper identification of the accused during the trial
in the court proceedings and take supportive evidence if there is any lack in the
identification process of the accused that committed the crime. (Wells, 2020)
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Helm, R. K. (2021). Juror knowledge, false memory.

Nagwanshi, K. K. (2018). Cyber Forensic Review of Human Footprint and Gait-based

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Robson, J. (2018). Lend me your ears' An analysis of how voice identification evidence
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Singh, H. N. (2021). Forensic podiatry evidence and admissibility in court.

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Wells, G. L. (2020). Policy and procedure recommendations for the collection and
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