Scott Tuppen, appearing for the appellant in R v Joel Wilkie [2024] EWCA Crim 741 at the Court of Appeal, argued that a standard Turnbull direction is not sufficient in a case where there is an obvious weakness with identification evidence. The appeal placed particular reliance on paragraph 17 of R v I [2007] EWCA Crim 923 where the court observed: “…it is never enough in this topic merely to identify weaknesses in the identification evidence without also explaining clearly to the jury why they are weaknesses.”
In Wilkie, the defendant was acquitted of a single count of the more serious offence of wounding with intent to cause grievous bodily harm, contrary to section 18 of the Offences Against the Person Act 1861 but convicted on a lesser alternative count of unlawful wounding, contrary to section 20 of the 1861 Act. The prosecution case was heavily dependent on the evidence given by the complainant, including her identification of the defendant at a police video identification parade, after she had seen three images of the defendant on Facebook, having been pointed to him.
The single judge, granting permission to appeal on Scott’s written application, found that the trial judge arguably failed to explain to the jury why the complainant’s identification was a weakness.
The full court, with Lord Justice Warby presiding, noting its recent decision in R v Imran Sabir [2023] EWCA Crim 804, found that the form of the Turnbull direction is initially a matter for the trial judge, and the level of detail required will vary from case to case depending on the circumstances.
Casemine states that the significance of the Wilkie judgment is that whilst specific directions should ideally be given in cases heavily dependent on identification evidence, the absence of such details does not necessarily make a conviction unsafe.
The judgment can be obtained at https://caselaw.nationalarchives.gov.uk/ewca/crim/2024/741
The Court of Appeal heard the appeal at the Royal Courts of Justice in June 2024.
Scott Tuppen was instructed by HAL Solicitors.