2) Identification procedure

Question 1

What code is the procedure in

Answer 1

Code D

Question 2

What is the purpose of an identification procedure

Answer 2

To test the reliability of the eyewitness’ identification

Question 3

What if the police do not know the identity of suspect

Answer 3

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

Question 4

When must an identification procedure be held

Answer 4

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

Question 5

Failing to hold an identification procedure

Answer 5

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

Question 6

Things the identification officer must explain before an identification procedure

Answer 6

1) The purpose of the IP to be used
2) Suspect’s entitlement to free legal advice
3) Procedure to be followed including their right to have a solicitor or friend present

Question 7

Different types of Identification Procedure

Answer 7

1) Video Identification
2) Identification parade
3) Group identification
4) Confrontation by a witness

Question 8

Which procedure should be used

Answer 8

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

Question 9

Showing a witness photographs before an identification procedure is held

Answer 9

• 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 shows at least 12 photos at a time (Code D)

Question 10

If a witness identifies an identification from a photograph

Answer 10

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

Question 11

What is a Video Identification

Answer 11

Occurs when the witness is shown moving images of a known suspect together with similar images of others who resemble the suspect

Question 12

Procedure - Video Identification Procedure

Answer 12

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

Question 13

Procedure - Video Identification - Suspect and solicitor seeing images before witness

Answer 13

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

Question 14

Procedure - Video Identification - Unusual features

Answer 14

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

Question 15

Procedure - Video Identification - Does the suspect attend

Answer 15

A suspect will not be present at the video identification, although the suspect will have
attended the police station on an earlier date to be video recorded for the purpose of the video identification. The suspect’s 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

Question 16

Procedure - Video Identification - Witness viewing video

Answer 16

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

Question 17

Can a suspect refuse to take part in a video identification procedure

Answer 17

Yes. Another procedure may be followed

Question 18

What is an Identification parade

Answer 18

Occurs when a witness sees the suspect in a line of others persons who resemble the suspect

Question 19

Identification Parade - Procedure

Answer 19

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.

Question 20

Identification Parade - Procedure - What are witnesses not able to do

Answer 20

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

Question 21

Identification Parade - Recording

Answer 21

A colour photograph or video recording of the identification parade must always be taken - Code D

Question 22

Can a suspect refuse to take part in a video identification procedure

Answer 22

Yes. Another procedure will be chosen

Question 23

What is a Group Identification

Answer 23

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

Question 24

Where should a Group Identification be held

Answer 24

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

Question 25

Selecting a location for Group Identification

Answer 25

In selecting the location for the holding of a group identification, the police must reasonably expect that the witness will see some people whose appearance is broadly similar to that of the suspect. . Beyond that, however, there is no requirement that the other persons whom the witness sees in addition to the suspect have any particular likeness to
the suspect

Question 26

Refusing a group identification

Answer 26

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

Question 27

What is a confrontation

Answer 27

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.

Question 28

Confrontation - Procedure

Answer 28

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.

Question 29

Excluding identification procedure

Answer 29

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

Question 30

When to use Turnbull Guidelines

Answer 30

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

Question 31

S. 78 Definition

Answer 31

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

Question 32

S. 78 - what will they need to think of

Answer 32

-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

Question 33

Overall S.78

Answer 33

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

Question 34

Who is responsible for running an identification procedure

Answer 34

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

Question 35

Steps to be taken by identification officer

Answer 35

Before an identification procedure the officer must explain the following matters:
- the purpose of the identification procedure to be used
- the suspect’s entitlement to free legal advice
- the procedure to be followed including their right to have a solicitor present
- if a suspect refuses to consent that such refusal might be used as evidence
- Whether before the suspect’s identity became known the witness was shown photographs

Question 36

Why is a group identification or confrontation less satisfactory than a video identification or identification parade

Answer 36

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.

Question 37

Refusal to take part

Answer 37

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.

Question 38

What does the solicitor need to do

Answer 38

Before procedure takes place should ensure that the police provide them with details of the first description of the suspect given by the potential witness

Question 39

Can the suspect stand where they want in an identification parade

Answer 39

Yes

Question 40

When will the Turnbull Guidelines

Answer 40

These apply when a witness who gives evidence for the prosecution visually identifies the defendant as the person who committed the crime and the defendant disputes that identification.

Question 41

Turnbull Guidelines - Crown Court

Answer 41

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

Question 42

Turnbull Guidelines - Crown Court - Factors they will look at

Answer 42

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?

Question 43

Turnbull Guidelines - Identification is good quality

Answer 43

If the judge considers the quality of the original sighting made by the eyewitness to be good,
when the judge sums up the case to the jury before they retire to consider their verdict, the Judge will point out to them the dangers of relying on identification evidence, and the special
need for caution when such evidence is relied on.

Question 44

Turnbull Warning

Answer 44

The judge will tell the jury that it is very easy for an honest witness to be mistaken as to identify and will direct the jury to examine closely the circumstances of the original sighting and take into account the factors when considering the quality of the identification evidence

Question 45

Turnbull Guidelines - Identification poor but supported

Answer 45

Turnbull warning will be given. The judge will point out the dangers of relying on identification evidence and the special need for caution when the jury are considering such evidence. The judge will also draw to the specific attention of the jury the weaknesses in the identification evidence which has been given. The judge will normally warn the jury about the dangers
of convicting on the basis of the identification evidence alone and tell the jury to look for other supporting evidence.

Question 46

Turnbull Guidelines - Identification poor and unsupported

Answer 46

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.

Question 47

Turnbull Guidelines -
Magistrates Court

Answer 47

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.