115Exclusion of evidence of identification by pictures

115 Exclusion of evidence of identification by pictures (1) In this section, picture identification evidence means identification evidence relating to an identification made wholly or partly by the person who made the identification examining pictures kept for the use of police officers. (2) Picture identification evidence adduced by the prosecutor is not admissible if the pictures examined suggest that they are pictures of persons in police custody. (3) Subject to subsection (4), picture identification evidence adduced by the prosecutor is not admissible if— S. 115(3)(a) amended by No. 68/2009 s. 97(Sch. item 55.33(a)). (a) when the pictures were examined, the accused was in the custody of a police officer of the police force investigating the commission of the offence with which the accused has been charged; and S. 115(3)(b) amended by No. 68/2009 s. 97(Sch. item 55.33(a)). (b) the picture of the accused that was examined was made before the accused was taken into that police custody. (4) Subsection (3) does not apply if— S. 115(4)(a) amended by No. 68/2009 s. 97(Sch. item 55.33). (a) the appearance of the accused had changed significantly between the time when the offence was committed and the time when the accused was taken into that custody; or S. 115(4)(b) amended by No. 68/2009 s. 97(Sch. item 55.33(a)). (b) it was not reasonably practicable to make a picture of the accused after the accused was taken into that custody. S. 115(5) amended by No. 68/2009 s. 97(Sch. item 55.33(a)). (5) Picture identification evidence adduced by the prosecutor is not admissible if, when the pictures were examined, the accused was in the custody of a police officer of the police force investigating the commission of the offence with which the accused has been charged, unless— S. 115(5)(a) amended by No. 68/2009 s. 97(Sch. item 55.33(a)). (a) the accused refused to take part in an identification parade; or S. 115(5)(b) amended by No. 68/2009 s. 97(Sch. item 55.33). (b) the appearance of the accused had changed significantly between the time when the offence was committed and the time when the accused was taken into that custody; or S. 115(5)(c) amended by No. 68/2009 s. 97(Sch. item 55.33(a)). (c) it would not have been reasonable to have held an identification parade that included the accused. (6) Sections 114(3), (4), (5) and (6) apply in determining, for the purposes of subsection (5)(c) of this section, whether it would have been reasonable to have held an identification parade. S. 115(7) amended by No. 68/2009 s. 97(Sch. item 55.33(a)). (7) If picture identification evidence adduced by the prosecutor is admitted into evidence, the judge must, on the request of the accused— S. 115(7)(a) amended by No. 68/2009 s. 97(Sch. item 55.33(a)). (a) if the picture of the accused was made after the accused was taken into that custody—inform the jury that the picture was made after the accused was taken into that custody; or S. 115(7)(b) amended by No. 68/2009 s. 97(Sch. item 55.33(a)). (b) otherwise—warn the jury that they must not assume that the accused has a criminal record or has previously been charged with an offence. Note to s. 115(7) substituted by No. 14/2015 s. 72. Division 4 of Part 4 of the **Jury Directions Act 2015** also deals with warnings about identification evidence. S. 115(8) amended by No. 68/2009 s. 97(Sch. item 55.33(a)). (8) This section does not render inadmissible picture identification evidence adduced by the prosecutor that contradicts or qualifies picture identification evidence adduced by the accused. (9) This section applies in addition to section 114. (10) In this section— (a) a reference to a picture includes a reference to a photograph; and (b) a reference to making a picture includes a reference to taking a photograph.