CORROBORATION AND IDENTIFICATION EVIDENCE

Introduction
English law generally accepts the testimony of a single witness as sufficient to establish facts
in issue or relevant facts.
Thus, unlike in many continental legal systems, there is generally no requirement for the
corroboration of a witness’ testimony to constitute sufficient evidence in civil or criminal
proceedings.
In many other jurisdictions, the applicable principle is testis unus testis nullus (one witness is
no witness). However, the opposite is the case in the English legal system.
Nevertheless, there are two categories of evidence considered ‘suspicious’ or ‘hazardous’
evidence in the English legal system –
a. Uncorroborated testimony of a particular category of witnesses, and
b. Identification of an accused by a witness.
In respect of these categories of ‘suspicious evidence’, the common law has developed
relevant principles to govern their admissibility.

Corroboration
‘Corroboration’ means evidence or testimony which supports or confirms another evidence
or testimony already tendered or admitted.
To ‘corroborate’ a piece of evidence, therefore, means to provide additional independent
evidence/testimony which supports or confirms the material contents of the first evidence.
As Lord Morris stated in DPP v Hester [1973] AC 296 –
‘The essence of corroborative evidence is that one creditworthy witness
confirms what another creditworthy witness has said.
The elements of corroborative evidence were stated in R v Baskerville [1916] 2 KB 658, 667
thus –
‘We hold that evidence in corroboration must be independent testimony
which affects the accused by connecting or tending to connect him with the
crime. In other words, it must be evidence which implicates him, that is,
which confirms in some material particular not only the evidence that the
crime has been committed, but also the prisoner committed it.’
Therefore, the three elements of corroborative evidence are-

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 i. It must be independent evidence/testimony i.e. not produced by the same
source as the evidence sought to be corroborated. In R v Cooper [2010] 1
WLR 2390, it was held that the written record of a witness could not
constitute corroboration of that witness’ testimony as it derived from the
same source.

Similarly, in R v Whitehead [1929] 1 KB 99 where the witness (a young

victim of sexual assault) narrated what had transpired to her mother and
her mother testified to this statement in court. It was held that this
evidence from the mother was not corroboration evidence because it did
not have an independent source – it came from the young girl (the
witness) herself.

ii. It must confirm some material contents of the original evidence sought to
be corroborated. Thus, in a criminal trial, it must implicate the accused in
the crime alleged or support/confirm the evidence tendered against him.

iii. It must be admissible. The corroborative evidence must, on its own, be

admissible before it can be relied upon as corroboration. Thus, if the
evidence is inadmissible hearsay evidence or other types of evidence
excluded by law, it cannot constitute corroboration.

Corroboration by Law
The general principle in English law (civil and criminal) is that corroboration is never
required as a matter of law for any piece of evidence in court.
This general principle is absolute in civil proceedings and the court can rely on the
uncorroborated testimony of any type of witness – children, mentally impaired persons,
hostile witnesses, ex-partners with a grouse etc.
However, in criminal proceedings, there are two important exceptions –

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 a. Perjury, and

b. Speeding Offences

For these offences, corroboration is required as a matter of law for an accused to be

convicted.

a. Perjury

Perjury is an offence constituted by lying under oath, either in court during ongoing
proceedings or by attesting to false statements in a document under oath.
Section 13 of the Perjury Act 1911 (still in force) stipulates that
‘A person shall not be liable to be convicted of any offence against this Act,
or of any offence declared by any other Act to be perjury or subornation of
perjury, or to be punishable as perjury or subornation of perjury, solely upon
the evidence of one witness as to the falsity of any statement alleged to be
false.
This means that corroboration of the false statement is required by law and an accused cannot
be convicted based on the testimony of just one witness stating that the statement is false.
In R v Cooper [2010] 1 WLR 2390, D was charged with driving while using a mobile phone
and he lied on oath in court that he had fitted a handheld device in his car in April 2008 which
enabled him to use his phone without holding it while driving. However, after the trial,
evidence emerged that the handheld device was actually fitted in July 2008 while the date of
the alleged offences was in May 2008. He was then charged with perjury and the only witness
against him was the mechanic who fitted the handheld device in July 2008. The prosecution
tendered the mechanic’s written record of the job as corroboration of his testimony and the
accused was convicted.
On appeal, his conviction was quashed and the court held that corroboration was mandated by
law under the Perjury Act and the corroboration must be a piece of independent evidence not
obtained from the same witness whose testimony requires corroboration.
In R v Rider (1986) 83 Cr App R 207, it was held that where corroboration of the sole
witness’s evidence is not possible, the judge ought to direct an acquittal of the accused
without a full trial before a jury as there is no longer a legal basis for the trial since a
conviction becomes impossible.

b. Speeding Offences

In speeding offences, there is a requirement of corroboration of the opinion of a witness

attesting to the accused’s driving above the speed limit.
Section 89(2) of the Road Traffic Regulation Act 1984 provides that –

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 ‘. . . a person prosecuted for such an offence shall not be liable to be
convicted solely on the evidence of one witness to the effect that, in the
opinion of the witness, the person prosecuted was driving the vehicle at a
speed exceeding a specified limit’.
This provision, therefore, mandates the corroboration of a witness’ testimony as to the
defendant’s speed.
Note that this provision only relates to a witness’ opinion testimony and not real or scientific
factual evidence such as speed cameras.
Thus, a defendant can be convicted solely on the evidence derived from a speed camera,
although a police witness is often required to testify and tender the evidence of the speed
camera in court.
However, the speed camera device must be an ‘approved’ device for its evidence to be relied
upon in court.
In Crossland v DPP [1988] 3 All ER 712 at 714, the court stated that –
‘It is plain … that the subsection is intended to prevent the conviction of a
defendant on evidence given by a single witness of his unsupported visual
impression of a defendant’s speed.’
In this case, the witness’ testimony as to his opinion of the speed of the defendant was
corroborated by an unapproved speed tracking device. The court held this to be sufficient
corroboration.
This case established that the requirement of corroboration is restricted to a witness’ visual
testimony as to the speed of the defendant. Thus, police radars and other speed-tracking
devices that have been properly calibrated will constitute evidence of fact and do not require
corroboration.
In a plethora of cases, the courts have applied the mandatory requirement of corroboration in
speeding offences. See Roberts v DPP (1994) RTR 31; DPP v Thornley (2006) 170 JP 385;
Iaciofano v DPP [2011] RTR. 15.

Treason

Section 1 of the Treason Act 1795 had required corroboration of the testimony of a witness
on a charge of treason.
However, this statute has been repealed by the Statute Law Revision Act 1948.

Note that, under s 2(2)(g) of the Criminal Attempts Act 1981, corroboration is also required
for any charge for an attempt to commit any of the above offences requiring corroboration.
Thus, a charge of an attempt to commit perjury or a speeding offence also requires
corroboration of the witness testimony to ground a conviction.

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Discretionary Judicial Warnings
Before 1994, there were three categories of witnesses that, although corroboration was not
required for their testimony as a matter of law, the judges where required to issue judicial
warnings to the jury on the dangers of the uncorroborated evidence of these witnesses.
These witnesses were –
a. A co-accused in criminal proceedings,

b. The complainant in sexual offences, and

c. Evidence of children.

Thus, for these categories of witnesses, judges were mandated to warn the jury that it was
dangerous to convict on the uncorroborated evidence of the ‘suspect’ witness, but they could
convict if they were certain as to the truth of their testimony.
This was a form of quasi-corroboration requirement, as the jury would be warned to be very
cautious of the testimony without any corroboration.
However, the requirement for a judicial warning in the first two categories (accomplice and
complainant in sexual offences) was abolished by section 32 of the Criminal Justice and
Public Order Act 1994.
The requirement for a judicial warning in the third category – evidence of children – was
earlier abolished by s 34(2) of the Criminal Justice Act 1988 which stipulates that –
‘Any requirement whereby at a trial on indictment it is obligatory for the
court to give the jury a warning about convicting the accused on the
uncorroborated evidence of a child is abrogated.’
In R v MH [2013] Crim LR 849, the complainant/witness was just 3 years old (thus falling
under two of the three categories). The Court of Appeal firmly rejected a suggestion that the
judge should have directed the jury of the danger of relying on her uncorroborated evidence,
holding that such requirement has been abolished by the Criminal Justice and Public Order
Act 1994 and Criminal Justice Act 1988.
Notwithstanding the abrogation of the obligation to issue the judicial warning in these
categories of witnesses, the Court of Appeal has held in R v Makanjuola [1995] 2 Cr App R
469 that it remains discretionary on the judge to issue this judicial warning if the judge deems
it fit based on the peculiar circumstances of the case and the witness.
In essence, the abrogation of judicial warning for these categories of witnesses only removes
the obligation on judges to issue the warning but does not remove the discretion on judges to
do so.

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The implication is that judges have the discretion to issue a judicial warning to the jury in
relation to the uncorroborated testimony of a witness in any of the above three categories.
In R v M (CACD - 14 March 2017) where the complainant was a child and her testimony was
relayed by her grandmother, the Court of Appeal warned that in some cases such as this it was
appropriate that the jury should be directed/warned as to the weight that may be attached to
such evidence.
Thus, the principle is that while warnings are no longer mandatory, they may still be
considered desirable in certain circumstances. Thus, they are discretionary!
Asides from the three categories above, there are other categories of witnesses where judges
have the discretion to issue a judicial warning as to the dangers of convicting on the
uncorroborated testimony of the witness. These include-
i. Co-defendants engaged in cutthroat defences i.e. pinning the crime on each other.

ii. ‘Cell confessions’ – the testimony of a witness about a confession made to him by
the accused when they were both in custody ( ‘cell confession’). In Pringle v R
[2003] UKPC 9 it was held that whenever the testimony of a witness appears to be
tainted by improper motives the judge may issue a judicial warning to the jury.
E.g. in cell confessions, the witness may be motivated by the need to get an early
release from custody for his testimony and is thus capable of exaggerating it.

iii. Anonymous Witnesses – because the accused would have been deprived of
making enquiries about the background and reputation of the witness that might
raise questions about his reliability and credibility - R v Davis [2008] 1 AC 1128,
HL

iv. Confessions of Mentally Impaired Persons - s 77 of PACE 1984 provides that

the judge may issue a judicial warning to the jury on the danger of convicting an
accused person suffering from a mental handicap on his uncorroborated
confession.

v. Witness of Bad Character – where a witness has a bad character or poor

credibility, the judge will often exercise their discretion to issue a judicial warning
to the jury on the dangers of relying on the uncorroborated testimony of such
witness – R v Spencer [1985] QB 771.

Corroboration Chart
Subject Principle

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 General Principle No requirement for corroboration under English
law.

o Perjury
o Speeding Offences
Exceptions
o Attempts to commit any of the
above offences

o Must be independent evidence

o Must confirm some material aspects of
Elements of Corroborative Evidence original evidence
o Must be admissible

o Previously obligatory for the testimony of

accomplices, complainants in sexual
offences and children.

Discretionary Judicial Warnings o Currently, merely discretionary.

o Discretionary warnings also apply to cell

confessions, the testimony of anonymous
witnesses, mentally handicap persons and
witnesses with bad character.

Identification Evidence
Evidence of the identification of an accused person by a witness is the second major category
of ‘suspect evidence’ and principles have been developed to safeguard against a miscarriage
of justice arising from a false identification of an accused by a witness.
There is a high risk associated with the visual identification of an accused by a witness and
there have been numerous instances of wrongful convictions based on such evidence.

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The concerns about identification evidence culminated in the decision of the Court of Appeal
in R v Turnbull [1977] 3 All ER 549 (CA) where the court issued wide-reaching directives
and guidelines that have become binding and applicable in all criminal trials.
These guidelines have become known as the ‘Turnbull Guidelines’.
Note that the guidelines apply to both visual and voice identification!

Turnbull Guidelines
The ‘Turnbull guidelines’ apply whenever –
a. The evidence against an accused in a trial depends wholly or substantially on the
correctness of the identification of the accused by a witness,

AND

b. The defence alleges that the identification is mistaken

The Turnbull guidelines require that the judge issue a judicial warning to the jury on the need
for special caution in relying on the identification by the accused.
The requirement of a judicial warning is mandatory and the judge must warn the jury of the
dangers of relying solely on the identification of the accused by the witness.
In R v Curry; Keeble [1983] Crim LR 737, the accused complained, on appeal, that the trial
court failed to follow the Turnbull guidelines. The Court of Appeal held that the Turnbull
guidelines were not applicable to cases where identification is not a major part of the case
against the accused.

Guideline 1

The judge should warn the jury of the need for caution in relying solely on the identification
of the accused by the witness and the reasons for such caution.
The judge should instruct the jury on the relevant factors to take into account in assessing the
identification evidence.
Some of the factors to be considered by the jury include how long was the suspect under
observation? At what distance? In what light? Was the observation impeded? Had the witness
seen the suspect before? (Is the identification one of pure recognition rather than the
identification of a stranger?) How often? If only occasionally, had the witness any special
reason for remembering the accused? How long elapsed between the original observation and
the subsequent identification to police? Were there any particular reasons for noting the
suspect?

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Guideline 2

The judge should instruct the jury that recognition of an acquaintance is more reliable than
identification of a stranger for the first time. However, even when the witness is purporting to
recognise someone whom he knows, the jury should be reminded that mistakes in recognition
of close relatives and friends are sometimes made.

Guideline 3

When the identification evidence is poor e.g. poor lighting, there was a long distance to the
scene, impediments to viewing the accused, a fleeting glance etc, the judge should withdraw
the case from the jury and acquit the accused unless there is other evidence which supports
the identification.
Thus, where the identification of the accused is done in poor visibility or other impediments
which reduce its reliability, the judge should direct an acquittal without sending it to the jury
except there is corroboration of the identification.

Guideline 4

Where the identification evidence is good, the jury should be left to assess the weight to be
given to the evidence but appropriate caution should still be issued to the jury.

Guideline 5

In all cases, the judge should instruct the jury on what constitutes appropriate corroborating
or supporting evidence of the identification evidence.
These guidelines have been incorporated in the Crown Court Compendium (July 2019) to
guide prosecutors in utilising identification evidence in criminal trials.

Voice Recognition or Earwitness Evidence

The prosecution sometimes relies on the voice identification of the accused as evidence
against him.
Voice identification can be by experts (specialists in comparing people’s voices) or a non-
expert (an acquaintance familiar with the accused’s voice).
Whenever voice identification is a substantial part of the evidence against the accused, the
Turnbull guidelines must also be followed by the judge, and a more stringent version of it is
required because it is more unreliable than visual identification.
The leading case on voice identification is R v Flynn [2008] 2 Cr App R 266 (20), CA where
the Court of Appeal held that voice identifications are even more fraught with danger than
visual identifications. Thus, except in exceptional cases where reliable expert evidence of
voice identification is admitted, the court will often exclude such identification evidence
because its prejudicial effect will outweigh its probative value.

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However, voice identification evidence is admissible and the judge must follow a more
stringent version of the Turnbull guideline in directing the jury.
The Court of Appeal held that some of the factors that the jury must be instructed to consider
include –
 the quality of the recording of the disputed voice;
 the gap in time between the listener hearing the known voice and their attempt to
recognise the disputed voice;
 the ability of the individual to identify voices in general,
 the nature and duration of the speech which is sought to be identified; and
 the familiarity of the listener with the known voice.

Code of Practice D

The Code of Practice D was issued under PACE 1984.

The latest version was released in 2017.
It is aimed at preventing any miscarriages of justice arising from mistaken identifications.
It lays down rules and procedures relating to police conduct in pre-trial identification
procedures.

Effect of Non-Compliance with Turnbull Guidelines

A failure to follow the Turnbull guidelines in admitting identification evidence would
invariably lead to a conviction being quashed. - R v Hunjen (1979) 68 Cr App R 99.
In R v Willoughby (1989) Cr App R 91, the accused was identified by the victim on the basis
that her attacker had spots on his face and the accused has similar spots on his face. The
victim saw her attacker briefly. The judge failed to follow the Turnbull guidelines. The
conviction was quashed by the Court of Appeal on the basis that the identification was poor
and was inadmissible and there was a failure to follow Turnbull guidelines.
However, failure to follow the Code of Practice D will not automatically lead to an acquittal
or expunging of the identification evidence - R v Quinn [1995] 1 Cr App R 480.
The impact of non-compliance will depend on –
a. Its impact on the fairness of the trial,
b. Whether there was sufficient evidence on which the jury was entitled to rely in
convicting the accused, and
c. Whether the probative value of the identification evidence outweighs its prejudicial
value.
In R v Forbes [2001] 1 AC 473 and R v Bryne [2016] All ER (D) 129, the Court of Appeal
decided that, in exceptional cases, failure to comply with the Code of Practice D would not

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automatically lead to an acquittal or expunging the evidence, provided the jury were given
adequate opportunity to assess the evidence and are convinced as to its reliability.
In Forbes’ case, the police failed to conduct an identification parade as required by Code of
Practice D but instead relied on a street identification of the accused by the witness.
In Bryne’s case, the police also failed to follow the Code of Practice D but the judge had
followed the Turnbull guidelines and properly directed the jury on the need to be cautious in
assessing the identification evidence.
In both cases, the Court of Appeal decided that the failure to follow the Code of Practice D
was not fatal to the prosecution’s case as Turnbull's guidelines were followed and the jury
would have come to the same conclusion considering the evidence before it.

Identification Evidence Chart

Subject Principle
o Visual identification
Scope o Voice Identification

o Where the evidence against the accused

depends wholly or substantially on
identification evidence,
Application
AND

o The accused claims the identification is

mistaken.

The judge must warn the jury of the dangers of

Requirement relying solely on the uncorroborated identification of
the accused.

Guideline 1 Warn the jury of the need for caution in relying

solely on the identification of the accused by the
witness and the reasons for such caution

Guideline 2 Instruct the jury that recognition of an acquaintance

is more reliable than identification of a stranger for
the first time

Guideline 3 When the identification evidence is poor, the accused

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 should be acquitted without the case going to the
jury.

Where the identification evidence is good, the jury

should be left to assess the weight to be given to the
Guideline 4 evidence but should be cautioned as to the dangers.

Guideline 5 Instruct the jury on what constitutes appropriate

corroborating or supporting evidence of the
identification evidence.

Voice Identification More stringent rules based on Turnbull guidelines

should be followed.

Lays down rules and procedures relating to police

Code of Practice D conduct in pre-trial identification procedures.

Effect of Non-Compliance o Non-compliance with Turnbull guidelines =

reversal of the conviction on
appeal/expunging of the identification
evidence.

o Non-Compliance with Code of Practice D =

not automatically lead to a reversal of the
conviction/expunging of identification
evidence. Depends on –

a. The impact of non-compliance on the

fairness of the proceedings,

b. Whether there was sufficient evidence

on which the jury was entitled to rely,

and

c. Whether the probative value of the

evidence outweighs its prejudicial
value.

READING LISTS

 A. Keane & P. McKeown, The Modern Law of Evidence, 12th ed (Oxford

University Press, 2018), Chapter 9.

 J. Doak, C. McGourlay, M. Thomas, Evidence in Context, 5th ed (Routledge,

2018), Chapters 10.

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 C. Singh, M. Ramjohn, and M. Ramjohn, Unlocking Evidence 2nd ed, (Taylor &
Francis, 2013), Chapter 13.

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