Identification by photographs
In 1923, SJ considered the admissibility of photographs as identification evidence in the courts
The use of the photograph in legal proceedings is attended with more danger and inconvenience than might at first be imagined, and one of the uses to which the courts will not allow a photograph to be put was illustrated by the case of R. v. Goss, Times, 11th inst., in the Court of Criminal Appeal.
In that case the principal witnesses were called upon to identify the appellant, who was appealing against a conviction of housebreaking, and it appeared that before these witnesses were actually taken to identify the appellant himself, they were taken into a room and shown a number of photographs; and that from these photographs they picked out the photograph of the appellant.
The Lord Chief Justice, commenting on this procedure, said that, although there were no doubt cases where the police might legally use photographs, they should not be used for the purpose of the identification of someone whom the witnesses were going to see afterwards, and that such a course made it possible that suspicions of unfairness, however unfounded, might afterwards arise. There being other unsatisfactory points about the trial, and in view of the fact that there was strong evidence of an alibi, the conviction was quashed.
The Lord Chief Justice also intimated that he could not see what legitimate or honest purpose the preliminary showing of the photographs was intended to serve. It seems, however, conceivable that the police adopted this line of conduct for the purpose of, in some way, saving time and trouble.
Admissibility of Photographs in Evidence
In matrimonial cases, the courts seem to have shown special aversion to the admission of photographs in evidence, and in Frith v. Frith and Paice, 1896, P. 74, Gorrell Barnes, J., refused to act on the evidence of a photograph alone and said, “I am continually asked to do so; but it should be known that it is not the practice of the Court except under very special circumstances, to act upon a photograph alone. It is high time that this should be understood.”
In Hills v. Hills and Easton, 31 T.L.R. 541, a photograph was, however, admitted as evidence of identification, the learned judge observing that it was a very striking one and that there were such surrounding circumstances as to justify the court in acting upon it.
Reverting to the use of photographs in criminal proceedings, the case of R. v. Toulson, 4 F. & F. 103, provides an interesting contrast to the present case. There, on an indictment for bigamy, a photographic likeness of the first husband was allowed to be shown to the witnesses present at the first marriage in order to prove his identity with a person mentioned in the marriage certificate. In that case the subject of the photograph appears to have been in India at the time of the hearing of the action and consequently comparatively inaccessible.
In the present instance, however, the procedure of identification by means of photographs, when the person whom it is sought to identify is himself available, seems exceptionable on the principle of the general rule that secondary evidence is inadmissible until it be shown that the production of primary evidence is out of the party’s power.
It certainly seems expedient that the courts should preserve a cautious attitude with regard to the use of photographs in legal proceedings, not only in cases of the above nature, but also in cases affecting easements, accidents, etc., especially when we bear in mind that even photographic experts themselves can hardly venture to deny that a photograph frequently fails hopelessly to reproduce the correct proportion and perspective of the object which it is intended to illustrate.