A man convicted of burglary on the basis of CCTV evidence won his appeal on Wednesday after the Cayman Islands Court of Appeal found fault with the way a police witness viewed the footage and identified a suspect.
In delivering the court’s decision, Justice Sir Richard Field suggested that “urgent consideration” be given to amending the Police Standing Order C4 to include a section on identification of individuals by police officers viewing CCTV footage.
Gary Steven Oliver was identified by a police officer as one of three people entering or attempting to enter three commercial premises as burglars in the early hours of Aug. 17, 2015.
The officer told a Grand Court jury in September 2017 that Mr. Oliver’s tattoo, build and limp helped him make the identification. He explained that he had known Mr. Oliver for eight years.
After the jury returned guilty verdicts on two counts of burglary and one attempted burglary, Justice Marva McDonald-Bishop sentenced him to four years’ imprisonment.
In her summing up of the case before the jury began deliberating, the judge had noted that there had been no fingerprint evidence, no DNA and no phone records. She described as “critical” the officer’s purported identification of Mr. Oliver, which Crown counsel Eleanor Fargin was relying on to prove the defendant’s guilt.
Defense attorney Philip Rule challenged the officer’s identification of Mr. Oliver because of the absence of safeguards in the process by which the CCTV was viewed.
In appealing the convictions this week, Mr. Rule based some of his grounds of appeal on the same absence of safeguards.
Justice Field listed the various defects in the process by which Mr. Oliver had been identified. He referred to the U.K. Police and Criminal Evidence Act which, as of February 2017, has an added “Code D” – a code of practice for the identification of persons by police officers. Cayman does not have such a code, “but basic fairness is matter of common law,” he said.
Footage of the incidents showed two males and a female, with the males having their facial features covered. The investigating officer asked colleagues to view the footage.
Justice Field said the CCTV should have been shown to one person at a time to avoid collusion and so the viewer would not be influenced by anyone else; there should have been a record of what was said at the viewing. The officer did not recall where he had viewed the CCTV and did not make notes at the time, but those facts should have been recorded.
Other grounds of appeal were also aired and the court found all three convictions to be unsafe.
Ms. Fargin, who replied to Mr. Rule’s arguments, said the Crown would not apply for a retrial.
After the jury’s verdicts last year, Justice McDonald-Bishop commended both counsel for their conduct of the case. She said Mr. Rule’s legacy in Cayman could be the attention he had brought to the need for a code for viewing CCTV evidence. Ms. Fargin said the matter would definitely be discussed. The appeal was heard by court president Sir John Goldring and Justice Dennis Morrison along with Justice Field.