Criminal Litigation - Identification Procedure (4) Flashcards
When is an identification procedure necessary?
Identification Procedure: Police should have witnesses formally identify the suspect if they dispute presence, to provide safeguards against mistaken identity. The police may also use locals to identify persons unknown to the police.
(1) Mandatory ID: The police must conduct identification in three instances:
Positive ID: Witness says they can identify a suspect who is unknown to them.
Possible ID: Witness thinks they can identify a suspect, and suspect disputes this claim.
Later ID: Witness to a crime purports to have identified suspect at a later date, i.e. on the street.
(2) Discretionary ID: The police may conduct identification if deemed to be ‘useful’ in some other way.
(3) Prohibited ID: Identification procedures are prohibited in two instances:
Undisputed: Suspect does not dispute presence (merely involvement).
Known: Suspect is known to witness (and suspect does not dispute this) (R v Harris; H v DPP).
What is the procedural code that the police must follow for an identification procedure?
Procedural Requirements: Police must adhere to Code D when conducting an identification procedure.
In what time frame does an identification procedure need to be conducted?
Time Frame: Procedures must be held as soon as practicable (D 3.11).
What record with regarding to witnesses need to be recorded prior to identification?
Record of Witness Description: Formal records of witness descriptions must be recorded prior to identification (D 3.1).
What are the requirements for impartiality and contamination in an identification procedure?
Impartiality and Contamination: Police must ensure witnesses are not influenced or contaminated in any way.
(1) Suspect Appearance: Police should account for reasonable objections made by the suspect regarding the appearance of other persons in the identification procedure.
(2) Separate Witnesses: Witnesses should be separated from each other and the suspect prior to, during and for some time after identification.
(3) Warning of Non-Presence: Witnesses must be warned that the suspect might not be present.
Who is the identification officer?
Identification Officer: Investigating officers must have no involvement in the procedure, to avoid conflict of interest. An impartial uniformed officer ranking inspector must conduct the procedure and be present throughout (D 3.11).
(1) Informing Procedure: The officer must inform the suspect of: a) the purpose; b) right to legal advice; c) type of procedure used; d) right to solicitor/friend’s presence; e) means to alter appearances; f) knowledge of witnesses; and g) first description of witnesses.
(2) Informing Consequences: The officer must explain to the suspect the consequences of:
Refusing Consent: Refusing to consent to a procedure may result in covert identification.
Altering Appearance: Adverse inferences may be drawn from an attempt to alter appearance.
What is a photograph showcase?
Photograph Showcase: Where a suspect has not yet been positively identified, the police can conduct a preliminary photograph showcase with a witness (after recording their first description).
(1) Showcase: Witnesses are shown 12 photographs at a time.
(2) Identification: Once a witness makes a positive ID, no other witness is shown photographs. One of the four formal procedures must be conducted.
(3) Notify Suspect: The suspect/their solicitor must be informed if their photograph or sketch has been used.
(4) Trial: Witnesses cannot state that they first identified a suspect by photograph at trial (Charles v The Queen).
What are the types of formal procedure?
Types of Formal Procedure: There are four formal identification procedures. They should be used in the order of priority.
(1) Video: Moving images of the suspect and others resembling him.
(2) Parade: Suspect stands in a line with others resembling him.
(3) Group: Suspect is amongst a general group of people in public.
(4) Confrontation: Suspect is brought face-to-face with witness at station.
What is the video identification procedure?
Video Identification: Witnesses are shown moving images of the suspect alongside others resembling him.
(1) Pre-Procedure: Witnesses cannot communicate prior to the procedure, see or be reminded of the suspect’s description, or talk to witnesses who have previously seen the material.
(2) Procedure: Witnesses are shown the video one at a time. They may freeze and replay the video as many times as they require. They are not required to make a positive identification.
What are the procedural requirements for video requirements?
Procedural Requirements: Video identifications must adhere to a number of requirements.
(1) Other Persons: The video must include at least 8 other persons. If there are two suspects, there must be 12 others.
(2) Similar Appearance: Other persons must resemble the suspect in ‘age, general appearance, and position in life’.
Unusual Appearances: Unusual appearances may be concealed or replicated (witnesses can request concealment or replication to be removed).
(3) Similar Movements: Videos must involve the suspect and all others in similar positions or movements.
What is suspect involvement in video identification?
Suspect Involvement: Suspects must consent to this process (else it would be impossible to conduct).
(1) Consultation: Suspects or their solicitors must be given reasonable opportunity to consult the video pre-procedure.
Objections: Police must take practicable steps to satisfy any reasonable objections.
(2) Presence: Suspects cannot be present for the procedure. Solicitors may be present, and must be given reasonable notice of its occurrence.
What is parade identification?
Parade Identification: Witnesses observe a line of persons resembling the suspect, including the suspect.
(1) Pre-Procedure: Same as video.
(2) Procedure: Witnesses observe the line one-by-one, and must state whether they can make a positive identification after looking at each person twice.
Warning: Witnesses must be warned that the suspect might not be present.
Movement: Witnesses can request persons to move (after confirming whether they can ID).
Speech: Witnesses can request persons speak (but ID must be on appearance, and this impacts trial).
What are the procedural requirements for parade identification?
Procedural Requirements: Other than movement, the requirements are the same as video.
How are parade identifications recorded?
Recording: A colour photograph or video recording of the parade must be made.
What is group identification?
Group Identification: Witnesses observe the suspect amongst a crowd of people (with or without their knowledge).
(1) Procedure: Suspect is amongst a crowd of people, and must be observable by the witness at that time.
(2) Location: Generally a location in which the suspect will resemble other people (no formal resemblance rules).
(3) Covert Identification: Identification may be without the suspect’s knowledge, such as at their place of work.
