I research, write, and lecture about international imagery law. In preparation for upcoming courses in the UK this summer, I was reviewing recent case law and came across a March 2022 case from the Court of Appeal (Criminal Division) that piqued my interest. It is consistent with previous case law but appears to be contrary to guidance provided by the UK Forensic Science Regulator (FSR) in 2019. 

The Case

In R. v. Abdi, 2022 WL 00757435 (Court of Appeal (Criminal Division)), the appellant and his co-defendant Kenfack (K) were found guilty of murder and wounding with intent. Abdi appealed his conviction to the Court of Appeal on grounds unrelated to imagery evidence. What is interesting in the appellate ruling is the summary of imagery evidence that was tendered at trial regarding K, who was not part of the Abdi appeal. It is that evidence that is the focus of this article. At trial, CCTV evidence was led which showed the vehicle involved in the murder at a petrol station about 20 minutes before the murder and 1.5 miles away. The CCTV video showed the front passenger get out of the vehicle. A police officer who knew K identified him in the video images. An expert in imagery analysis compared questioned images of the person seen in the CCTV video with known images of K and concluded that there was strong support for the proposition that K was the man seen in the video. Other evidence was led regarding K which amounted to a strong circumstantial case. The video evidence did not specifically implicate Abdi and no identification evidence was made of him in the video images. The jury ultimately convicted both Abdi and K. The CCTV video evidence would have been damaging for K.  

Image Comparison Evidence and the FSR

The expert imagery evidence led by the Crown in this case is in line with evidence that has been led for years in criminal prosecutions in the UK. The typical case involves the imagery expert conducting a detailed analysis of questioned images and then a similar analysis of known images. Thereafter, a comparison is undertaken to determine if there is any support for the proposition that the person or object of interest in the questioned images is the same as seen in the known images. What is unusual about this case is that the expert’s evidence was presented after the FSR’s 2019 Regulatory Notice 01/2019 entitled Image Enhancement and Image Comparison: Provision of Opinion, which took effect in July 2019.

In arriving at the Regulatory Notice, the FSR sought to address a series of problems regarding expert image comparison evidence that had been noted anecdotally. These problems include the following:

• Conclusions being reached on image interpretation when the quality of the images does not support such conclusions.
• Cognitive bias impacting image interpretation.
• Lack of competence, insufficient training, and qualifications.
• Peer review not being utilized.
• No meaningful proficiency testing or calibration of expertise.
• Interpretation of the meaning of image comparisons using an inappropriate scale.  
• Not considering alternative explanations.
• Measurement uncertainty not being validly assessed and incorporated.
• Using methodology that has not been scientifically validated.

For more details on the FSR’s Regulatory Notice, see an earlier article on this website entitled Recommendations for Expert Image Comparison Evidence in the United Kingdom in Light of the FSR Regulatory Notice Image Enhancement and Image Comparison: Provision of Opinion. Principle 2 of the Notice provides as follows:

Principle 2: The person proposing to give opinion evidence must be an expert in all relevant aspects they intend to give an opinion on. 

a. The proposed expert must be an expert in the subject matter on which opinion is expressed. 

b. Expertise in CCTV, video, imaging, enhancement etc. does not equate to expertise on the content of the image. 

c. Unless they are also an expert in the content of the images, imagery experts must not attempt to give expert opinion evidence on the meaning of a comparison between the objects in question. 

d. An expert in a class of comparison (e.g. facial comparison) or in a specific field (e.g. Nike training shoes or Ford cars) but who does not have expertise in imagery must ensure that, in any case where the quality or nature of the image may affect the interpretation, an imagery expert has assessed the imagery in question to identify any artefacts or issues that could affect the comparison.

The effect of this direction is that a forensic imagery expert must not give an opinion on the comparison between the content of questioned and known images unless the expert is also an expert in the subject matter being evaluated. The Abdi case (more specifically the evidence led against K) may not be in compliance with the FSR directive. I use the word “may” because the Court of Appeal provided limited detail on the imagery expert’s evidence. If the expert was also an expert in facial comparison, then there would be no conflict. However, if the expert lacked this necessary cross-training, then a conflict exists. 

Commentary

Why does this matter? Though one may disagree with the FSR’s directive, it should not be ignored. The trial took place in late 2020, more than a year after the FSR directive took effect. Assuming the imagery expert was not cross-trained in facial comparison, then the expert was either unaware of the prohibition or was aware of it and chose not to follow it. It does not appear to have been an issue raised by counsel for the defence at trial, likely because there was sufficient other evidence to support K’s guilt or perhaps because counsel was not aware of the prohibition. 

The Forensic Science Regulator Act 2021, which was not in effect at the time of the trial, provides in Section 4 that the Code of Practice is admissible in evidence in criminal and civil proceedings and the failure of a person to act in accordance with the code may be considered when determining a related question at trial. Failure to follow a FSR directive would be contrary to the Code of Practice. 

This is the first reported post-FSR Regulatory Notice image comparison case that I have come across in my research. Assuming no cross-training expertise existed, it calls into question how the FSR directives will be utilized in practice. It seems unlikely that this issue was discussed in the Abdi case as it was not mentioned by the Court of Appeal, nor was this a ground of appeal since the image comparison evidence related to the co-defendant K, not Abdi. Failure to follow the FSR directive does not lead to automatic exclusion, but it certainly gives opposing counsel an argument to challenge its admissibility. The FSR was given legal (statutory) status in 2021 and it remains to be seen how the image comparison directive will be approached by experts, counsel, and the courts.  

In my earlier article entitled Recommendations for Expert Image Comparison Evidence in the United Kingdom in Light of the FSR Regulatory Notice Image Enhancement and Image Comparison: Provision of Opinion, I provided guidance as to how imagery experts can comply with the FSR directive and still provide evidence that would be of value to the trier of fact. The expert is entitled to provide a full analytical opinion of all technical aspects of the images, as outlined in the article. This is properly expert opinion testimony. Further, the expert can point out all observations made regarding the questioned and known images. This would constitute factual testimony, not expert opinion, because the imagery expert is not an expert in the subject matter contained in the images. Using this approach, the expert does not provide any opinion as to the relationship between the questioned and known images. Often, the ultimate opinion on support becomes superfluous once the underlying work and testimony has been presented.