The courts have realised that identification of humans can easily be mistaken for around a century and yet jurors are not typically aware of this problem40 In R v Turnbull41 lord Widgery stated that "In our judgment when the quality is good, as for example when the identification is made after a long period of observation, or in satisfactory conditions by a relative, a neighbour, a close friend, a workmate and the like, the jury can safely be left to assess the value of the identifying evidence even though there is no other evidence to support it" however he also said that "if he gets only a fleeting glance of the thief's face as he runs off but he does see him entering a nearby house.
Later he picks out the accused on an identity parade. If there was no more evidence than this, the poor quality of the identification would require the judge to withdraw the case from the jury; but this would not be so if there was evidence that the house into which the accused was alleged by X to have run was his father's. " so for cases where the identification evidence is of a poorer quality the judge would have to direct the jury to be cautious if there is other evidence and hold that there is no case to answer if there isn't any other evidence.
In Nembhard v The Queen42 the judges said "It is important in the interests of justice that a person implicated in a killing should be obliged to meet in Court the dying accusation of the victim-always provided that fair and proper precautions have been" In R v Edward43 the judge held that "a Turnbull direction was not required in respect of a motor car because, unless deliberately altered, perhaps by having its colour changed, a car did not change shape, colour or size, whereas a human being's facial expression, bodily position and appearance altered frequently". There are two pieces of identification evidence here that of Stephanie and that of the dead guard.
The identification made by the guard would normally be classed as poor quality evidence since he only partially unmasked the man, only had a moment to observe him and although he frequented the same pub that alone does not say how well he knew his face. However the Nembhard case clearly shows that an identification of a dying man is exempt from the Turnbull dicta for public policy reasons. Although the Edward case expressly referred to identification of cars its dicta was because their appearance is far more simple and static than a human face.
Because the robbers were masked Stephanie only said the men were white slim and in their 20s this amounts to recollection of a limited set of features and is far from a full identification therefore it is highly likely that the court will accept that the Edward dicta applies and not give a warning against the value of this evidence. Under PACE code D44 an identity parade must be held if an identification has been made outside of any formal identification procedure and the accused denies being the person identified unless it will serve no purpose. This is relevant because Simon has completely denied being involved in the robbery and Stephanie did not attend an identity parade however because she only saw masked men and not a recognisable individual having a parade is unlikely to be useful so the fact that one has not been held does not matter.
S. 98 CJA45 defines bad character evidence as evidence of, or a disposition toward any misconduct not related to the current offence. Misconduct is defined in S. 112(1) CJA46 as the commission of an offence or other reprehensible behaviour. The use of the term disposition toward suggests that very little evidence of misconduct is sufficient indeed R v Z47 shows that even a previous acquittal is enough. Simon's previous assault and theft are both offences and the law makes it clear that mere evidence of them is sufficient. S. 101 CJA48 gives an exhaustive list of gateways by which evidence of a defendant's bad character is admissible in court.
There are two which could be relevant and they are that it is important explanatory evidence or it is relevant to an important matter in issue between the defendant and the prosecution. Under S. 102 CJA49 important explanatory evidence is anything which is necessary to properly understand other evidence or the case as a whole. Case law has shown that a history of similar things is not a valid reason (R v Edwards50, R v Ifzal Iqbal51) rather it must be things directly related to that specific events in question (R v Edward52, R v Osbourne53) Nether his previous conviction or the accusation of theft are needed to understand any of the evidence so this gateway cannot be used.
S103(1)54 describes an important matter in issue as the question of whether the defendant has a propensity to commit offences of the kind with which he is charged. In R v Hanson55 the court identified 3 questions which have to be answered in the affirmative to satisfy this statute 1. Does the history of conviction(s) establish a propensity to commit offences of the kind charged? (The statute states that this can be shown by previous offences of the description or of the same category as identified by the attorney general. ) 2. Does that propensity make it more likely that the defendant committed the offence charged? 3. Is it unjust to rely on the conviction(s) of the same description or category; and, in any event, will the proceedings being unfair if they are admitted?
Under SI 2004/334656 theft and robbery are considered to be of the same category of offence however In DPP v Chand57 it was held that although shoplifting and stealing a charity box were of the same type of offence one did not show an increased likelihood of committing the other. Simon has been accused of armed robbery and murder. Although theft and armed robbery are in the same category there is clearly more difference between them than there is between shoplifting and taking a charity box therefore his previous accusation of theft will not be held to make him more likely to commit the offence. The same can be said of his assault conviction.
It is not of the same description as the murder because they will say different things on the charge sheet and so far no statutory instrument has been made to group murder and assault together however this alone will not make it inadmissible since the statute allows for other means of showing propensity. However I do not think any court will find that a conviction for assault makes it more likely that a person has committed murder also in Hanson a conviction that was 8 years old was only aloud because it was of a sexual nature and sexual offenders don't normally change, Simon would have been a teenager when he committed the assault 10 years ago therefore the passage of time is probably too great.
Under S.53 YJCA58 all people are competent to testify unless they are the accused or cannot understand questions and give understandable answers. The case of Hill59 shows that even the most severe mental difficulties did not prevent a person being held to have the required understanding even in an age of prejudice and lack of understanding towards such people. This means that Justin might be able to testify against Simon in spite of his difficulties if separate trials are held instead of a joint trial. To summarise the prosecutions situation. The best evidence is Justin's confession however his mental difficulties will probably render his confession inadmissible and failing that its reliability will certainly be undermined. It is unlikely that this can be rebutted.
Stephanie's witness account describes what happened and although they are only able to get her statement read out by a third party this should not harm the case much because the defence have little that needs to be cross examined because the only thing she said which implicated the defendants is the number plate everything else she said is just evidence that the event did happen and there can be no doubt that it happened. The dead guard identified his attacker as S. T however these initials alone do not guarantee that he was identifying Simon Timms and even if they did the guard only got a brief glimpse of his face and was vague about how well he knew him. The police report shows that the bike used belongs to the brothers this is a reliable piece of evidence however it does not prove that the accused were the ones using it at the time and the story about forgetting to report the theft to the police could be true for all anyone knows.
Finally Simon claims to have an alibi and since the witness to this is the dead mans grandchild this is likely to be seen as very reliable despite the fact that he did not mention it quickly. Issues regarding pre trial publicity and bad character evidence are not likely to be accepted in this case. In conclusion there is nothing to stop the prosecution proceeding. However the evidence is all circumstantial and although there are multiple coincidences there are not many of them and there is a alibi therefore they have little chance of getting a conviction. The guards identification combined with the inadmissible confession would form a stronger case against Simon therefore I recommend having separate trials so that they are no longer co-accused.
This will mean Justin's confession will be usable against Simon and Justin will be compellable to testify against him providing he can understand the questions and give understandable answers in spite of his difficulties. The verdict will still be doubtful due to the reliability of Justin's evidence but this option is more likely to be successful.
Books Gregory Durston, Evidence, Oxford university press 2008 Journals Criminal Justice Act 2003: Part 3: evidence of bad character, Crim. L. R. (2004), Jul, 533-555 Evidence and procedure: retrial for serious offence, Crim. L. W. (2009), 1, 3-4 Evidence: joint trial – admissibility of co-accused, Crim. L. R. (2005), Sep, 720-722