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Ben Hargreaves considers the effects that postings on sites such as Facebook, Instagram, WhatsApp and Snapchat can have on the value of identification evidence. Incidents may be livestreamed or rumours spread on these platforms long before an effective police investigation or any formal identification procedures.
The latest authority to deal with social media and identification is Phillips and Phillips  EWCA Crim 126. This case referred to the previous authorities of McCullough  EWCA Crim 2178, Alexander  1 CrAppR 26, and LT  4 WLR 51 and it is worth a quick review of these cases to understand the development of the Court of Appeal’s approach.
McCullough concerned a robbery where the suspect was initially identified by Police officers viewing footage of a location near to the offence, but not at the site of the offence itself. The witness had been told by a third party that the offence was of a type that would be committed by the defendant. The defendant and witness did not know each other but the comment was enough to cause the witness to locate the defendant on Facebook and identify him as his attacker. The witness told the police what had happened, and indeed picked out the defendant on an identification procedure. The witness refused to reveal the identity of the third party or to identify the Facebook account which had been used to find the image of the defendant.
The Court of Appeal described the social media identification as “far from ideal” – particularly as the image was not before the court. However, the Court ruled that this was a matter to be considered in deciding what weight should be attached to the identification; this included a consideration of the impact on the weight to be attached to the evidence as a consequence of the witness’s unwillingness to reveal anything further about the social media identification. These were not matters relevant to admissibility.
In R v Alexander  1 CrAppR 26 the defence sought a stay rather than exclusion of the material. This was another robbery case where the witness undertook his own investigation to research social media and identify his attackers. He made an identification from photographs on social media but waited a month before telling the police what he had done. The police took a statement from him, and in this case were given both the account and photographs in question. They did not take copies or notes of the images so they were not available at trial.
The Court of Appeal stated “it is incumbent upon the police and the prosecutor to take steps to obtain in as much detail as possible, evidence in relation to the initial identification. For example, it would be prudent to obtain the available images that were looked at and a statement in relation to what happened” and even recommended a guideline be drafted for this purpose.
The CACD did not find it amounted to an abuse of process, nor did the Court accept criticisms of the directions given to the jury. The defence had sought to argue: (1) that the judge should have directed that an identification on social media was quite different from an identification through an ID procedure; (2) that the judge should have warned the jury that the images on social media may have displayed the defendant in an unfavourable pose that had triggered the recollection and therefore he had reached an identification on the wrong basis; and (3) that the judge should have explicitly warned the jury that there was an enormous disadvantage that they did not know which photograph had been the first seem by the witness.
The Court found that there was no need to give the first as there was no sufficient basis to suggest anything was said or done that could be seen to differentiate between the identification methods. Insofar as the second direction was concerned, the Court found that the judge was correct not to highlight what might have been prejudicial material to the defendant. As for the third direction, the jury knew that they did not have the photograph. In short, because the judge had directed the jury to the disadvantage the defendant had been caused by the absence of the evidence relating to the social media identification that was considered to be sufficient.
LT considered again the first direction as considered in Alexander. In this case the trial judge did exclude both the formal identification and the preceding social media identification. It was considered in a voir dire that there had been a significant risk that third parties had influenced the identification, and those third parties had refused to co-operate with the investigation, although the images were available to the jury.
The Court of Appeal overturned the ruling on the basis that there was an insufficient evidential basis for the judge to have reached that conclusion. However, it did accept that if there was evidence of comments by third parties at the time of the social media identification then a direction should be given to deal with that. Such a direction would have addressed the concern in this case that led the judge to incorrectly exclude the material.
All these judgements were considered in the case of Phillips and Phillips determined in January 2020. This matter concerned a stabbing outside a public house. Three eyewitnesses were all shown a social media image of the defendant by a third party before attending a formal ID procedure. At trial, the judge asked each witness to confirm if the person they had identified in the formal procedure was the man they had seen at the time of the stabbing or simply that man they had seen in the image – unsurprisingly all three confirmed it was the man they had seen at the time of the offence.
The Court of Appeal acknowledged that “the particular problems posed by the prior identifications on social media is that at a subsequent formal identification parade the witness will identify the person in the photograph to which the witness may have been directed, and not the person who committed the relevant offence. The risk is heightened where a person is directed to a photograph. This is because the witness may be influenced to believe that the person in the photograph is the person who committed the offence, rather like the effect of seeing a person in the dock and being asked whether they recognise the person who committed the offence in court”. The Court acknowledged the clear risks but maintained that with careful direction the problem could be overcome. This appears to leave the defence at the whim of a direction that is attempting to balance the weight of the evidence but not its admissibility. Identification through social media will be permitted and we have after 11 years of complaint been left with four principles that some may feel do not deal with the problem in a satisfactory way:
(1) The Court expressed that there is a particular importance in the police obtaining as much evidence as is possible in relation to the initial social media identification. But if that is not done it will not necessarily prevent the admission of that evidence,
(2) Social media identifications are admissible but a jury should have as much evidence in relation to them as possible,
(3) Careful direction will need to be given to the jury about the specific weakness that is caused by a social media identification being made prior to a formal identification procedure,
(4) Where appropriate a separate direction will be needed where a social media identification may have been influenced by comments made by a third party.
The reality is that the Court of Appeal has considered that a direction by a trial judge is sufficient to overcome the obvious dangers of an identification by social media. It is difficult to have confidence in that approach. The appropriate way of dealing with such identifications would seem to be to consider them initially as inadmissible unless the accompanying material demonstrates that it is clearly safe to proceed.
Ben Hargreaves specialises in defending serious criminal cases . He has been instructed in a number of murder cases this year where this issue has arisen.
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