The Court of Appeal has dismissed Mark Carlisle’s appeal against his conviction, ruling that an informal identification procedure was not fundamentally unfair and that the trial judge was right to admit the resulting evidence.
The appeal concerned identification evidence given by Derek Conway, the brother of injured man Mark Conway. Carlisle had declined to take part in a formal identification parade. Gardaí then arranged an informal procedure in which volunteers and Carlisle walked along a corridor in front of Derek Conway.
The trial evidence was that Derek Conway identified Carlisle as the third person to walk past. He said he recognised him as the man who had kicked his brother and was 100% certain. At that point, Conway had seen only two of the nine volunteers.
The defence argued that the procedure was unfair because the volunteers wore shoes while Carlisle did not. It said the difference could have singled him out and that admitting the identification evidence had made the conviction unsafe. The prosecution argued that Conway identified Carlisle immediately as he turned towards him, before seeing the remaining volunteers, and that footwear played no part.
The trial judge accepted that Carlisle had no shoes on and considered whether this would have made him an obvious suspect. The judge acknowledged that the informal procedure was imperfect but ruled it fair and admitted the evidence.
The Court of Appeal said it was suboptimal that Carlisle lacked footwear while all the volunteers wore shoes. But it found no evidence that this affected the identification: Conway had seen only two volunteers, and the others might also have had no footwear. The court considered the identification’s instantaneous nature, as Carlisle turned towards Conway, significant. It concluded that the identification was based firmly on facial recognition.
The court found no error of principle in the trial judge’s decision and dismissed the appeal. The judgment addressed the admissibility challenge; it did not set out a fresh determination of the underlying trial evidence.
Carlisle had been convicted by a jury after a three-day trial in July 2018 of assault causing harm and violent disorder. The trial judge imposed a seven-and-a-half-year prison sentence for violent disorder, backdated to 27 May 2018, and took the assault count into consideration. The Court of Appeal’s judgment does not alter those outcomes.