Identification Evidence and Inferences from Silence — SQE1 FLK2 Criminal Law and Practice

A woman has her phone snatched at night. The man runs past her under failing streetlights, and she sees his face for three or four seconds. An hour later officers stop a man a mile away, and her phone is in his coat pocket. He will not say how it got there. Two questions decide this case, and neither of them is whether he did it. Can the jury be allowed to act on that identification at all? And can they hold his silence against him?

This is Identification Evidence and Inferences from Silence. Two bodies of law that look unrelated and turn up in the same case constantly. Eyewitness identification, where the danger is the honest witness who is simply wrong. And the Criminal Justice and Public Order Act 1994, where the danger is saying nothing. Keep that phone in mind. It comes back.

Here is the route. Why identification evidence is treated as dangerous, and the Turnbull guidance that follows. When the judge must warn, and when the judge must stop the case altogether. Then silence. Sections 34 to 37, one for each kind of failure, and how to tell them apart. Then section 38, the safeguards. And last, what you actually advise a client at the police station.

Start with why identification is a category of its own. It is notoriously unreliable. The Devlin Committee, in 1976, found that mistaken identification was the single biggest cause of wrongful convictions in this country. Not lying witnesses. Mistaken ones. That is the whole problem in a sentence, and everything that follows is the law's attempt to manage it.

R v Turnbull is the leading authority, and the warning is named after it. When must the judge give it? Two limbs. The identification is disputed, and the prosecution case depends wholly or substantially on the correctness of that identification. Both must be present. It makes no difference whether the identification came from a formal video procedure or from a chance encounter in the street.

And recognition counts. A delivery driver who has worked the same street for years, and says he knew her at once, still gets you a Turnbull warning. Mistakes in recognising people you know are not unusual. The trigger is the dispute plus the dependence, not the formality of the procedure and not whether the witness is a stranger.

What must the judge say? Five things. There is a special need for caution before convicting on identification evidence. The quality of the identification matters more than the quantity. An honest and convincing witness can still be mistaken. The jury must examine closely the circumstances in which the identification was made. And they should consider whether the witness had any reason to lie.

Examining the circumstances means the quality factors. How long did the witness see the person for? At what distance? What was the lighting? Was there a clear view of the face? Any reason to remember them? Did the witness know them before? Any distractions? A warning that never touches those matters is a misdirection.

Now quality against quantity. Three passers-by identify a man at separate video procedures. The first watched the robber for five seconds from ten metres in good light. The second, two seconds from twenty-five metres in poor light. The third, ten seconds from five metres in good light. And all three stood on the pavement talking about what they had seen before the officers arrived. Does three identifications beat one? No.

Each sighting is examined on its own circumstances, and the jury must be told that several honest witnesses can share a single mistake. The more so when they have talked to each other first. Three witnesses are not three times the evidence.

When is the warning not required? Where the identification is not disputed. Where the evidence is not visual recognition at all. And this one matters. A neighbour who says she could not see his face, but describes a red and white bomber jacket, is giving a description, not an identification. That is circumstantial evidence, and it does not attract the full Turnbull warning.

Which brings back our snatched phone. Where the identification is of poor quality, the judge withdraws the case only if it stands unsupported. Three or four seconds of a face under failing streetlights is poor. But her phone was in his coat pocket an hour later, and that is capable of supporting the identification. So the case goes to the jury, with the full warning, and the judge tells them which evidence can support the identification and which cannot.

Supporting evidence never removes the need for the warning. It removes the need to stop the case. And the threshold for stopping is high. Weaknesses in an identification are for the jury, once they have been properly warned. Judges take a case away only where the evidence is truly hopeless.

Silence now, and start from the right place. The right to silence survives. A suspect need say nothing to the police, a defendant need not give evidence, and nobody can be forced to incriminate themselves. Article 6 protects it. What the Criminal Justice and Public Order Act 1994 did was not to abolish it, but to attach consequences to it.

Section 34 is the interview. A suspect is questioned under caution, before charge, by a constable trying to discover whether or by whom an offence was committed. He fails to mention a fact he later relies on in his defence. The court may then draw such inferences as appear proper. Five conditions, and the fifth is the one that decides cases. The fact must be one the accused could reasonably have been expected to mention at the time.

Test that. A man says no comment when asked where he was that evening, and at trial gives an alibi he accepts he knew about at the interview. Inference available. Now change one fact. His defence rests on an internal audit that reached his solicitors four months after the interview. The section does not bite. Always check the chronology.

Two more things about section 34. It needs a caution. A woman walks into a police station as a witness and is never cautioned. She later turns out to be the suspect. Under this section she gives the prosecution nothing, however striking the contrast with her later alibi. And no inference at all where she was not allowed to consult a solicitor before the failure.

That solicitor point cuts both ways. Staying silent on legal advice does not, by itself, block an inference. R v Beckles is the case. If the jury concludes the silence was not a genuine reliance on the advice but a convenient shield, they may still draw one. And to rebut it, the defendant may have to reveal the basis of the advice, which waives privilege in it.

Section 35 is the trial. If the defendant does not give evidence, the court or jury may draw such inferences as appear proper. Not where his guilt is not in issue. Not where it appears to the court that his physical or mental condition makes it undesirable for him to testify. And there is a safeguard the section does not spell out. Under R v Cowan, the jury must be satisfied there is a case to answer before drawing any inference at all.

The threshold for undesirable is high. Significantly impaired intellectual functioning has been held not necessarily to meet it. Anxiety, poor sleep and finding the witness box unpleasant are incidents of every trial, and they do not make testifying undesirable in the statutory sense. The paradigm cases involve a real risk of harm.

And the direction on section 35 has essential ingredients. The burden stays on the prosecution throughout. The defendant is entitled not to give evidence. An inference cannot on its own prove guilt. There must be a case to answer. And the jury may draw an inference only if the silence is sensibly attributable only to his having no answer, or none that would survive cross-examination.

Section 36 is things. An arrested person, and an object, substance or mark. Found on him, on his clothing or footwear, otherwise in his possession, or at the place of arrest. Which the constable reasonably believes may be attributable to his part in the offence. Then a special warning, in ordinary language, telling him what a failure to account will mean. Fail or refuse to account, and the court may draw an inference.

That is our phone in the coat pocket. Grazed knuckles on a man arrested near a beating. A crowbar in a rucksack matching the tool marks on a forced door. Two traps here. Charge is not required, only arrest. And an account that is disbelieved is still an account. A man who says the blood is his own from a nosebleed has accounted for it, even when forensics later prove him a liar.

Section 37 is places. An arrested person, found by the constable at a place at or about the time the offence was committed, who fails to account for his presence after a special warning. Now try this. A warehouse is burgled on Tuesday night. A man is arrested at his home on Thursday morning. In interview he is given a special warning and asked why he was at the warehouse. No comment. Section 37?

No. He was not found at the warehouse. He was found at home, two days later, and the trigger is where the officers found him, not where the questions point. The prosecution is not empty-handed, though. If at trial he relies on facts about his whereabouts that he never mentioned, section 34 supplies the inference instead.

Section 38 is the safeguards, and the biggest is this. Nobody may be convicted, and no case may be left to a jury, solely on an inference drawn from silence. Inferences supplement a prosecution case. They cannot constitute it. Two inferences added together are still only inferences.

Two more safeguards worth knowing. No inference where the defendant was not allowed to consult a solicitor before the failure. That is section 34, subsection 2A, and the same protection sits in sections 36 and 37. And where the questioning was oppressive, the interview itself goes. Fourteen hours without a break, no food, and refused the lavatory twice is oppression.

Section 76 of PACE 1984 excludes a confession obtained by oppression, and section 78 lets the court refuse evidence that would make the proceedings unfair. Once the interview goes, there is no failure left to draw an inference from.

Last, the advice. This is the hardest call in criminal practice, and it turns on two questions. How strong is the prosecution case? And can this client actually give a coherent account? Silence may be right where there is no coherent account, where the evidence is very weak, or where the client is confused or vulnerable. Answering may be right where there is a clear and credible explanation, or an alibi.

And there is a middle course. The pre-prepared statement. The client's account is written out, handed in at the start of the interview, and then he answers no comment to everything. Those facts have been mentioned, so section 34 cannot bite on them. But the protection reaches only the facts actually in it. A statement that says self-defence, and says nothing about a knife, leaves the knife exposed when it appears for the first time at trial.

A word on how SQE1 tests this. You will not be asked to recite section numbers or case names. You get a scenario, five answers, and one instruction. Pick the best. So learn which failure belongs to which section, and what makes an identification poor. The three names here are memory pegs.

If you keep only three, keep these. R v Turnbull, the warning that carries its own name. R v Cowan, no inference from silence at trial until there is a case to answer. And R v Beckles, where silence on a solicitor's advice is not automatically safe, because the jury may decide the advice was a shield rather than a reason.

Four traps. One. Confidence is not accuracy. A witness may be entirely honest, entirely convincing, and entirely wrong, and research shows that confidence is a poor predictor of whether an identification is right. That is precisely what the warning exists to counter.

Two. Do not reach for a directed acquittal every time an identification is weak. The threshold is the most extreme cases only, where no reasonable jury properly directed could safely convict. Weaknesses go to the jury inside the warning. Those are matters of weight.

Three. Section 34 punishes a failure to mention, not a failure to convince. A man who gives an explanation the officers disbelieve has not failed to mention anything. The same is true of a suspect who accounts for an object under section 36. Disbelief is for the jury.

Four. Record the advice you give. If your client stays silent against your advice, note it on the interview record. If an inference is later invited at trial, the jury should know whose decision it was. Without the note, you cannot make that argument.

Quick check. A man is arrested for wounding and interviewed under caution before charge. No comment to every question. He is charged that evening. His jacket is examined overnight, and in the morning a forensic scientist finds the complainant's blood on the cuff. He is interviewed again, given a special warning about the blood, and again says no comment. At trial he says he was never at the scene and that a friend had borrowed the jacket.

Three candidate answers. One. Section 34 only, because both interviews were part of one continuous process of questioning. Two. Section 36 only, because the blood came to light after he had already been charged. Three. Section 34 and section 36, because they address different failures and both are engaged. Pause here if you want a moment.

The answer is three. Section 34 turns on the failure, when questioned under caution before charge, to mention facts later relied on. He never mentioned that he was elsewhere, or that the jacket had been lent out, and he relies on both at trial. Section 36 turns on the failure, after a special warning, to account for a substance on his clothing that may be attributable to the offence.

Why the others fail. Option two has the section right and the reason wrong. Section 36 is not confined to questioning before charge, which is exactly why the timing of the forensic examination is no obstacle to it. And option one ignores the blood altogether. Two interviews, two different failures, two sections.

Five things to take away. One. The Turnbull warning is required where identification is disputed and the case depends wholly or substantially on it, recognition included. Two. Quality beats quantity, an honest witness can be mistaken, and the judge must name the specific weaknesses, not just recite the formula.

Three. Withdraw the case only where the identification is poor and unsupported. Four. Match the failure to the section. Section 34 is the interview, section 35 the trial, section 36 objects and marks, section 37 presence at the place where they found you.

Five. No conviction on silence alone, and no inference where legal advice was denied or the questioning was oppressive. And back to our snatched phone. Three or four seconds of a face is a poor identification. But the phone in his pocket supports it, and his refusal to explain it is a failure to account under section 36. Next time, Hearsay Evidence.

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