2) Identification procedure Flashcards
What code is the procedure in
Code D
What is the purpose of an identification procedure
To test the reliability of the eyewitness’ identification
What if the police do not know the identity of suspect
The police are allowed to take a witness to a particular neighbourhood to see if the witness is able to identify the person they saw
When must an identification procedure be held
1) A witness has identified or purported to have identified a suspect
2) A witness thinks they can identify the suspect and the suspect disputes being the person the witness claims to have seen
3) If the officer in charge considers it would be useful
Code D - an identification procedure shall be held unless it is not practicable or would serve no useful purpose in proving or disproving whether the suspect was involved in committing the offence
Failing to hold an identification procedure
A breach of Code D will occur if whilst the defendant was detained at the police station the police failed to hold an identification procedure when such a procedure should have been held
Showing a witness photographs before an identification procedure is held
- Police will keep photographs of individuals with previous convictions to show to a witness when they are trying to identify the suspect.
- The witnesses description must first have been recorded.
- Witness MUST be shown at least 12 photos at a time (Code D)
- Must be of similar appearance of suspect
If a witness identifies an identification from a photograph
As soon as a witness makes a positive identification from photographs, no other witnesses should be shown the photographs. The witness who made the identification and any other witnesses
should then be asked to take part in one of the identification procedures. The suspect and their solicitor needs to be told that a witness has previously been shown photographs
Things the identification officer must explain before an identification procedure
1) the purpose of the identification procedure to be used
2) the suspect’s entitlement to free legal advice
3) the procedure to be followed including their right to have a solicitor present
4) if a suspect refuses to consent that such refusal might be used as evidence
5) Whether before the suspect’s identity became known the witness was shown photographs
Different types of Identification Procedure and preference
1) Video Identification
2) Identification parade
3) Group identification
4) Confrontation by a witness
Which procedure should be used
A suspect should initially be offered a video identification (Code D) unless:
- it is not practicable
- an identification parade is both practicable and more suitable
- officer in charge considers a group identification is more suitable than a video identification or identification parade
What is a Video Identification
Occurs when the witness is shown moving images of a known suspect together with similar images of others who resemble the suspect
Procedure - Video Identification Procedure
Images must include the suspect and at least 8 other people who so far as possible resemble the suspect in age, general appearance and position in life - Code D
If two suspects of roughly similar appearance are show in the same images they must be shown together with at least 12 other people. The images are then shown to the witness which show the suspect and the other people in the same positions or carrying the same sequence of movements
Procedure - Video Identification - Suspect and solicitor seeing images before witness
The suspect or their solicitor must be given a reasonable opportunity to see the full set of images before they are shown to any witness. If there is a ‘reasonable objection’ to the images or to any of the other participants, the police must take steps, if practicable, to remove the grounds for objection
Procedure - Video Identification - Unusual features
If a suspect has any unusual features which do not appear on the images of the other people, the police may take steps to conceal those features on the video or to replicate those features on the images of the other people
Procedure - Video Identification - Does the suspect attend
No but their solicitor should be given reasonable notice of the time and place of the video identification so that they may attend to ensure that it is carried out properly
Procedure - Video Identification - Witness viewing video
Only 1 witness may see the video at a time. The playback of the video may be frozen and there is no limit on the number of times the suspect may see the video. Before they see the images witnesses are not able to:
- Communicate with each other about the case
- See any of the images which are to be shown
- See or be reminded of any photograph or description of the suspect or be given any other indication as to the suspect’s identity
- Overhear a witness who has already seen the material
Can a suspect refuse to take part in a video identification procedure
Yes. Another procedure may be followed
What is an Identification parade
Occurs when a witness sees the suspect in a line of others persons who resemble the suspect
Identification Parade - Procedure
Code D - The identification parade will consist of at least eight people who, so far as possible, resemble the suspect in age, height, general appearance and position in life.
Identification Parade - Procedure - What are witnesses not able to do
Code D - Before attending the parade witnesses are not able to:
- communicate with each other about the case or overhear a witness who has already seen the identification parade
- see any member of the identification parade
- see or be reminded of any photograph or description of the suspect
- see the suspect before or after the identification parade
Identification Parade - Recording
A colour photograph or video recording of the identification parade must always be taken - Code D
Can a suspect refuse to take part in a identification parade
Yes. Another procedure will be chosen
What is a Group Identification
Occurs when the witness sees the suspect in an informal group of people. Group identifications may take place either with the consent and cooperation of the suspect, or covertly if the suspect does not consent
Where should a Group Identification be held
A place where other people are passing by or waiting around informally. The suspect should be able to join these people and be capable of being seen by the witness at the same time as others in the group
Selecting a location for Group Identification
Somewhere police must reasonably expect that the witness will see some people whose appearance is broadly similar to that of the suspect.
Refusing a group identification
If a suspect refuses to consent to a group identification and such an identification is held covertly, the police will be required to take the witness to a place where the suspect is likely to be at a given time. If, for example, the suspect is in employment, the group identification could take place outside the suspect’s place of work at the time when the suspect is known to start or finish work
What is a confrontation
Occurs when a witness is brought face-to-face with a suspect in the police
station. Confrontations are extremely rare and very much a last resort.
Confrontation - Procedure
Prior to a confrontation taking place, the witness must be told that the person they saw may, or may not, be the person they are to confront and that if they are not that person, the witness should say so. A confrontation must take place in the presence of a suspect’s solicitor in a normal room in the police station or one with a screen permitting the eye witness to see the suspect without being seen.
Excluding identification procedure
Use S.78 PACE - usually raised when the methods employed by the police to obtain evidence constitute a significant and substantial breach of Code D e.g ID procedure carried out incorrectly or no ID procedure held
When to use Turnbull Guidelines
ONLY if the court declines to exercise its discretion under s.78, should the solicitor then consider how in cross-examination, to undermine the quality of the evidence of the original sighting of the defendant which the witness claims to have made and what representations to make to the court in respect of the Turnbull guidelines
S. 78 Definition
Gives them the power to exclude evidence if the admission of that evidence would have such an adverse effect on the fairness of proceedings that it ought not to be admitted. They’ll only really do this if it is unreliable in the way it was obtained and therefore it would be unfair to use it. Any breaches of Code D or PACE need to be significant and substantial
S. 78 - what will they need to think of
-Why the evidence if admitted would have an adverse effect on the fairness of any proceedings
-Whether the evidence was obtained as a result of bad faith
-Whether the breach of any law or code in obtaining the evidence was significant or substantial
Overall S.78
1) Is the evidence relevant to the charge the defendant faces?
Yes
2) Has the evidence been improperly obtained - has there been a significant and substantial breach of PACE?
Yes
3) Does the manner in which the evidence was obtained cast doubt on the reliability of that evidence?
Yes - court has discretion to exclude evidence under S.78
Who is responsible for running an identification procedure
Officer not below the rank of inspector who is not involved with the investigation - Breach of Code D is not. Must be present throughout ad must be in uniform
Why is a group identification or confrontation less satisfactory than a video identification or identification parade
It is more likely that the suspect will be identified by the witness, as the suspect will
not be seen in a group of people who resemble them in appearance.
Refusal to take part
Adverse inference can be drawn - the suspect refused to take part in the procedure because they thought they would be recognised by the witness(es) who would
have attended the procedure.
Can the suspect stand where they want in an identification parade
Yes
Turnbull Guidelines - Crown Court
The trial judge must look at the circumstances of the original sighting of the defendant by the witness and determine how strong this evidence is
Turnbull Guidelines - Crown Court - Factors they will look at
1) Length of the observation
2) Distance
3) Lighting
4) Conditions
5) How much of the suspect’s face did the witness actually see
6) Whether the person identified was someone who was already known to the witness or someone the witness had never seen before
7) How closely does the original description given by the witness to the police match the actual physical appearance of the defendant? Are there any discrepancies in height, build, hair colour?
Turnbull Warning
Judge needs to explain to the jury that they need to assess the quality of the original sighting and also explain the dangers of relying on identification evidence and the special need for caution when the prosecution relies on such evidence. The judge should tell them that it is very easy for an honest witness to be mistaken as to identity and to examine closely all the circumstances of the original sighting.
Turnbull Guidelines - Identification poor and unsupported
The judge should stop the trial at the end of the prosecution case and direct the judge to acquit the defendant. This will normally follow a submission of no case to answer.
Turnbull Guidelines -
Magistrates Court
Defendant’s solicitor will address the Turnbull guidelines in their closing speech to the magistrates, and will point out that, however strong it might appear, identification evidence from an eyewitness is notoriously unreliable and the
magistrates should exercise caution when considering such evidence.
