Social Media Identification (and its admissibility in trials)

18th February 2021 Business Crime

There is no doubt that social media has sleuthed its way into all of our lives in one way or another, and in the wake of the COVID-19 pandemic which saw us close our doors to the outside world, 2020 taught us the value of staying connected more than ever. Whether we like it or not, social media helped us to virtually bridge the gap left by the absence of normal social contact.

But does it belong in our courtrooms?

There are instances of the police using social media posts as evidence of inciting violence and looting, to bring those responsible to justice (the Salford and London riots of 2011). But how far should this go? Should this extend to witnesses or victims of a crime being able to identify their assailants by using social media? How reliable is this? What about the influence of third parties directing the witness and inadvertently creating a false identification or memory of the person accused of the crime?

The recent cases of R v Phillips [2020] and R v Crampton [2020] grappled with these important questions, and ultimately paved the way for social media identification to be successfully used in criminal trials.

Police & Criminal Evidence Act 1984 Codes of Practice (PACE)

Formal identification of suspects is typically carried out in a controlled environment, which seeks to reduce the possibility of any misidentification of a suspect by a witness. This can be by either drawing the witness’ attention to the suspect, or when the suspect becomes known before the procedure (paragraph 3F, Code D of PACE).

It follows that identification of a suspect by a witness via social media is therefore not a formal procedure undertaken in a controlled environment, and this process is understandably open to criticism on reliability. However, the courts have concluded that where the jury can be directed towards the obvious pitfalls of such an identification, the evidence itself should not be excluded from trial.

R v Phillips [2020] EWCA CRIM126

In Phillips, the issue concerned witnesses being directed to the Defendant via a social media image. Here, three eyewitnesses to a stabbing were all shown a photograph of the Defendant by a third party, before any formal ID procedure took place. The judge specifically addressed this point by seeking to distinguish any confusion over the potential link between a social media photograph of the Defendant and an identification of the Defendant as the person involved from a real memory of the crime. The judge directed each witness to confirm whether the person that they identified in the formal ID procedure was the person they actually witnessed at the stabbing, or simply the person whose social media image they had been shown after the event. All of the witnesses gave evidence that the Defendant was the person they saw during the stabbing.

R v Crampton [2020] EWCA CRIM 1334

In Crampton, the issue concerned an indecent assault, and an identification of the Defendant via Facebook where no formal ID procedure took place. The complainant knew the Defendant’s first name, and was given his last name by a third party. She then found the Defendant on Facebook, and recognised him as the offender. The complainant’s mother confirmed that she had always known the Defendant’s name, and also recognised the Facebook image of him shown to her by the Complainant. There were also other witnesses, including the complainant’s father (who identified the Defendant via VIPER) and a close friend of the family who witnessed the Defendant being thrown out of the house at the time. The judge considered the evidence at length and in detail, and identified to the jury the risks with any Facebook identification. He concluded that nevertheless, the Facebook ID was admissible as evidence, and the question for the jury was to consider the weight of that evidence in the context of the other ID evidence in the case. On appeal by the Defendant, the court held that the trial judge had not erred in his decision and that the jury were properly directed so as to be able to reach a fair view.

Practical Considerations

The judgement in Phillips set out some important practical considerations when dealing with social media identification and their use in criminal trials:

1)    Particular importance should be placed on the police obtaining as much evidence as possible regarding any social media identification;

2)    Social media identifications are admissible, but the jury should have as much evidence in relation to them as possible;

3)    Careful directions need to be given to the jury about specific weaknesses caused by social media identifications which are made prior to formal ID parade; and

4)    Separate directions are required where a social media identification may have been influenced by comments made by a third party.

It is therefore clear from the case law that the use of social media to identify Defendants is admissible as evidence in criminal trials, so long as the jury is given appropriate directions by the trial judge as to the dangers of such evidence and the weight to be attached to it. This is clearly unsavoury for the defence, who in such circumstances, must rely heavily on the judge to give appropriate directions to the jury so as to not unduly prejudice them against the Defendant.   

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Kelly Hurst is a Trainee Solicitor located in Manchesterin our Trainee Solicitors department

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