Evidence Act 2011

In this section:

Picture identification evidence presented by the prosecutor is not admissible if the pictures examined suggest that they are pictures of people in police custody.

Subject to subsection (4), picture identification evidence presented by the prosecutor is not admissible if—

when the pictures were examined, the defendant was in the custody of a police officer of the police force investigating the commission of the offence with which the defendant has been charged; and

the picture of the defendant that was examined was made before the defendant was taken into police custody.

Subsection (3) does not apply if—

the defendant’s appearance had changed significantly between the time the offence was committed and the time the defendant was taken into the custody; or

it was not reasonably practicable to make a picture of the defendant after the defendant was taken into the custody.

Picture identification evidence presented by the prosecutor is not admissible if, when the pictures were examined, the defendant was in the custody of a police officer of the police force investigating the commission of the offence with which the defendant has been charged, unless—

the defendant refused to take part in an identification parade; or

the defendant’s appearance had changed significantly between the time the offence was committed and the time the defendant was taken into the custody; or

it would not have been reasonable to have held an identification parade that included the defendant.

Sections 114 (3) to (6) (Exclusion of visual identification evidence) apply in deciding, for subsection (5) (c), whether it would have been reasonable to have held an identification parade.

If picture identification evidence presented by the prosecutor is admitted into evidence, the judge must, on the defendant’s request—

if the picture of the defendant was made after the defendant was taken into the custody—tell the jury that the picture was made after the defendant was taken into the custody; or

otherwise—warn the jury that they must not assume that the defendant has a criminal record or has previously been charged with an offence.

Section 116 (Directions to jury) and s 165 (Unreliable evidence) also deal with warnings about identification evidence.

This section does not render inadmissible picture identification evidence presented by the prosecutor that contradicts or qualifies picture identification evidence presented by the defendant.

This section applies in addition to section 114 (Exclusion of visual identification evidence).

In this section:

a reference to a picture includes a reference to a photograph; and

a reference to making a picture includes a reference to taking a photograph.