Feb 4
During a spate of violent incidents and shootings between two rival gangs, the wife and son of a close associate of a gang-leader were shot in the legs at the front door of their house. It was the Crown’s case that one of the men involved in the shooting was the first defendant (“the defendant”), a prominent member of the rival gang. The Crown contended that, whether present or not, the defendant was party to an agreement to carry out the shooting. When the police interviewed the wife in hospital she described the man said to be the defendant as aged about 19 or 20 with a stubbly face which had mole-like lumps on it and dishevelled-looking hair covering his ears. The wife, together with a technician, produced an electronic facial identification technique (“e-fit”) picture of the first man who called at the house. It was later suggested to the wife that the defendant had been one of the men who had been involved in the shooting. The defendant and three others were charged with conspiracy to cause grievous bodily harm with intent contrary to section 1(1) of the Criminal Law Act 1977. The wife saw an article on the website of a national tabloid newspaper about the arrest of the defendant and two others and recognised him as the man she had answered the door to prior to the shooting. At trial, it was the defendant’s case that he had been at home with his mother at the time of the shooting and he contended he did not fit the wife’s description of the first man to appear at her house. The wife gave evidence during which the e-fit picture was accepted as admissible for the purposes of cross-examination as an inconsistent statement under section 4 of the Criminal Procedure Act 1865 and section 119 of the Criminal Justice Act 2003 and admitted in evidence by agreement of all the parties. The defendant sought to introduce evidence that a number of police officers had seen the e-fit picture and indicated that the image did not resemble the defendant but did resemble certain other members of the gang believed to be responsible for the shooting. The judge ruled against the defendant’s application on the basis that the evidence amounted to inadmissible opinion evidence. He concluded that an e-fit image was a pictorial form of a description given by a witness and was not in the same category as an image from a video or closed circuit television recording. The defendant was convicted and appealed against conviction.
On the appeal—
Held, appeal dismissed. Following the enactment of the Criminal Justice Act 2003, e-fit pictures could no longer be treated as being in a class of their own or akin to a camera, since on a true construction of sections 114 and 115 of the 2003 Act, an e-fit was to be treated as hearsay evidence of “a representation of fact or opinion by a person”. It was clear beyond doubt that Parliament had intended the hearsay provisions of the 2003 Act to regulate the admission of an e-fit picture in the circumstances of the present case. During the trial, the e-fit was admitted with the agreement of the parties, pursuant to section 114(1)(c) of the 2003 Act because the witness had referred to it during her interviews and on the basis that it was potentially a previous inconsistent statement (section 4 of the Criminal Procedure Act 1865 and section 119 of the 2003 Act). Since the e-fit picture was hearsay evidence, it was to be treated in the same way as a written record made by a police officer of a description provided by an eye witness as to the appearance of someone the witness had seen. The defendant’s proposal would have required a number of police officers to view the e-fit picture and compare it to their memories of the appearances of various other people. That would have meant expressing their opinions as to the match between (i) the perception of the compiler of the e-fit picture as to the perception of the witness of the man on her driveway, and (ii) a range of other people. The e-fit picture was different from a situation in which a witness who was not present at the scene gave identification evidence from photographs or film footage which was not hearsay because the witness was not reliant on the perception of another human being, namely the creator of the e-fit picture. It would not have been in the interests of justice to admit that hearsay evidence as to do so would have resulted in a wholly unreliable exercise fraught with the risk of serious mistakes occurring during the various stages of the process given the cumulative layers of perception, impression or opinion on the part of at least three individuals. The risk that the jury would be misled by undetected human error was too great. Accordingly, the judge had been right to refuse to allow the defendant to introduce the evidence of the officers that the e-fit picture did not resemble the defendant (paras 40–47, 49).
Per Curiam. The commentary in Archbold: Criminal Pleading, Evidence and Practice, 2021 ed, para 14-70 on the status of e-fit pictures is now out of date (para 44).
Simon Csoka QC (assigned by the Registrar of Criminal Appeals) for the first defendant.
Nina Grahame QC (acting pro bono) for the second defendant.
Paul Greaney QC, Jaime Hamilton QC and Philip Barnes (instructed by Crown Prosecution Service, Appeals Unit, Special Crime Division) for the Crown.