Identification Flashcards
Identification at the Scene
The admissibility and value of identification evidence obtained when carrying out the procedure under para. 3.2 (taking an eye-witness to see whether they can identify the person they saw on a previous occasion) may be compromised if before a person is identified, the eye-witness’ attention is specifically drawn to that person; or if the suspect’s identity becomes known before the procedure.
Careful consideration must be given before a decision to identify a suspect in this manner is used. If there is sufficient evidence to arrest the suspect without using a witness’s identification, then it is likely that the courts will find that one of the three identification methods outlined at Code D, para. 3.4 should have been used and the evidence may be excluded. Confrontations between witnesses and suspects on the street can be useful at times, but where this takes place it defeats the formal identification process and needs to be carefully considered. The reason for this is that, even if the suspect is picked out on the identification parade by that witness, the defence will be able to argue that the identification was from the confrontation after the incident and not at the time of the commission of the offence. If there is more than one witness available and a decision is taken to use a witness to try to identify a suspect at the scene, other witnesses should be moved away, so as to reduce the possibility of a chance encounter with the suspect. Where possible, these witnesses should be kept apart until the identification parade and ideally should not discuss the matter between themselves.
Where a suspect is identified by witnesses, other evidence should still be sought to strengthen the case (or to prove the person’s innocence) as identification evidence is often challenged at court. Such supporting evidence may include admissions by the suspect that links him/her to the identification evidence; e.g. that he/she owns the vehicle that was driven at the time of the offence (R v Ward [2001] Crim LR 316).
R v Oscar [1991]
The need for ‘scene identifications’ was recognised by Lord Lane CJ in R v Oscar [1991] Crim LR 778 and by the Court of Appeal in R v Rogers [1993] Crim LR 386.
In Oscar, the court held that there had been no requirement for an identity parade in that case and Lord Lane pointed out that, in any case, a later parade where the suspect was dressed differently would be of no value at all. In Rogers, the suspect was found near a crime scene and was confronted by a witness who positively identified him. The court held that the identification in that case was necessary for an arrest to be made, although the court considered that a later parade could have been carried out.
R v El-Hinnachi [1998]
An example where a street identification was appropriate is R v El-Hinnachi [1998] 2 Cr App R 226. Here an affray took place in the car park of a public house. A witness had seen the man earlier in the pub and she’d had an unobstructed view in good light before the attack. The witness described the attacker’s clothing to the police and then identified a group of men who had been stopped by other officers a short distance away. The court accepted that due to the fast-moving incident, this correct approach should, however, be avoided where possible. The defendants were not known suspects when they were stopped by the police prior to the witness’s identification. The court also accepted that it had not been practicable for a record to have been made of the witness’s description, as required by Code D, para. 3.1, prior to the identification.
R v Nunes [2001]
A not uncommon situation is where police officers chase a suspect who is arrested by other officers on the description circulated by the chasing officer, who then attends the scene to confirm the person’s identity. The case of R v Nunes [2001] EWCA Crim 2283, covers this point and points out the dangers of this practice. The facts of the case were that a police officer saw a man inside a house and circulated a description on his radio. A person fitting the description was seen and arrested. The first officer arrived on the scene and identified the arrested person as the man he had earlier seen in the house. The Court of Appeal held that on the particular facts of this case the identification amounted to a breach of the Code. By the time of the identification, the man had been arrested for suspected involvement in the offence and, on his arrest, the identity of the suspect was known to the police. Therefore, by the time the witnessing officer arrived on the scene, the case involved ‘disputed identification evidence’ because the suspect had said that he had not done anything while the police had told him he matched the description of a suspected burglar. That said, the court did go on to hold that the judge had the discretion to allow the identification evidence to be adduced notwithstanding the breach of the Codes, but a full and careful direction regarding the breaches, together with a warning about the shortcomings in the procedure, would have been necessary.
When Must an Identification Procedure be Held?
Identification procedures should be held for the benefit of the defence as well as the prosecution (R v Wait [1998] Crim LR 68). The key factor to consider when deciding whether to hold an identification parade is whether a failure to hold a parade could be a matter of genuine potential prejudice to the suspect. In R v SBC (A Juvenile) [2001] EWCA Crim 885 the defence was one of duress but the appeal was based on the failure of the police to hold identification parades. The Court of Appeal stated that this was not a case about identification, as none of the defendants denied their presence at the scene. What they denied was their criminal participation in the activities that took place. It followed, therefore, that Code D did not apply. Other examples would be where it is not in dispute that the suspect is already well known to the witness who claims to have seen the suspect commit the crime or where there is no reasonable possibility that a witness would be able to make an identification.
Any decision to proceed without an identification parade must be capable of justification later to the relevant court. The courts have taken different approaches to justification based on practical difficulties. In an early case, the submissions of the identification officer that it was impracticable to find enough people who sufficiently resembled the defendant were treated fairly dismissively by the trial judge (R v Gaynor [1988] Crim LR 242). In other cases, however, the courts have been more lenient, accepting that the timescales involved in arranging identification parades may render them ‘impracticable’ (see R v Jamel [1993] Crim LR 52, where the court refused an objection by the defence to a group identification). A group identification was used in Jamel because a parade using mixed-race volunteers would have taken too long to arrange. All reasonable steps must be taken to investigate the possibility of one identification option before moving on to an alternative, and an offer from a suspect’s solicitor to find volunteers to stand on a parade is such a ‘reasonable’ step (R v Britton & Richards [1989] Crim LR 144).
There have been a number of Court of Appeal cases concerning the requirement to hold identification parades. It is suggested that these should be applied to the Code regardless of which form of identification procedure is used. The leading case is R v Forbes [2001] 1 AC 473, which was based on earlier versions of the Code of Practice. The House of Lords held that if the police are in possession of sufficient evidence to justify the arrest of a suspect, and that suspect’s identification depends on eye-witness identification evidence, even in part, then if the identification is disputed, the Code requires that an identification parade should be held with the suspect’s consent, unless one of the exceptions applies.
The House of Lords went on to say that this mandatory obligation to hold an identification procedure applies even if there has been a ‘fully satisfactory’, ‘actual and complete’ or ‘unequivocal’ identification of the suspect.
Despite the wording of Code D, it has been held that a suspect’s right to have an identification [procedure] is not confined to cases where a dispute over identity has already arisen; that right also applies where such a dispute might reasonably be anticipated (R v Rutherford and Palmer (1994) 98 Cr App R 191). Similarly, a suspect’s failure to request an identification [procedure] does not mean that the police may proceed without one (R v Graham [1994] Crim LR 212).
It is important to consider the distinction between identification of a suspect and the suspect’s clothing or other features. In D v DPP (1998) The Times, 7 August, a witness had observed two youths for a continuous period of five to six minutes and then informed the police of what he had seen, describing the age of the youths and the clothes that they were wearing. The court held that there had not been an identification within the terms of the Codes of Practice because the witness had at no stage identified the defendant or the co-accused. He had described only their clothing and their approximate ages, and the police, acting on that information, had made the arrests. An identification parade could have served no useful purpose, since the clothing would have been changed and those persons used for the parade would have been the same approximate age. This point was further supported in R v Haynes [2004] EWCA Crim 390, where the Court of Appeal held that as a practical point the identification parade, whether or not the suspect was regarded as a known or unknown suspect, was of little value where the witness identified the suspect by clothing and not by recognition of the suspect’s features. An identification parade would have provided little assistance.
The question for the court will be whether it is fair to admit the identification evidence. When looking at this issue the court will consider how reliable that identification evidence is.
In para. 3.5(a)(i), examples of physical changes or differences that the identification officer may wish to consider include hair style and colour, weight, facial hair, wearing or removal of spectacles and tinted contact lenses, facial injuries, tattoos and make-up.
Keynote - Selecting an eye-witness identification procedure
When an eye-witness attending an identification procedure has previously been shown photographs, or been shown or provided with computerised or artist’s composite likenesses, or similar likenesses or pictures, it is the officer in charge of the investigation’s responsibility to make the identification officer aware of this. The purpose of allowing the custody officer or other officer not involved in the investigation to undertake the role of the identification officer at Code D, paras 3.17 and 3.18 is to avoid or reduce delays in arranging identification procedures by enabling the required information and warning to be given at the earliest opportunity.
Which Identification Procedure should be Used?
Code D, para. 3.21 also apples where a suspect refuses or fails to take part in a video identification, an identification parade or a group identification, or refuses or fails to take part in the only practicable options from that list. It enables any suitable images of the suspect, moving or still, which are available or can be obtained, to be used in an identification procedure. Examples include images from custody and other CCTV systems and from visually recorded interview records.
It is only if none of the other options are practicable that the identification officer may arrange for the suspect to be confronted by the witness. A confrontation does not require the suspect’s consent. In R v McCulloch, Smith & Wheeler (1999) 6 May, unreported, the Court of Appeal made it clear that confrontations between suspects and witnesses should only be carried out if no other identification procedure is practicable.
Photographs, Image and Sound Reproduction Generally
The use of photographic and computer-generated images (such as E-Fit) to identify suspects has increased considerably over the past few years. Although the courts will exercise considerable caution when admitting such evidence (R v Blenkinsop [1995] 1 Cr App R 7), these methods of identification are particularly useful. Expert evidence may be admitted to interpret images on film (see e.g. R v Stockwell (1993) 97 Cr App R 260) and police officers who are very familiar with a particular film clip (e.g. of crowd violence at a football match) may be allowed to assist the court in interpreting and explaining events shown within it (R v Clare [1995] 2 Cr App R 333).
Logically E-Fit and other witness-generated images would be treated as ‘visual statements’, in that they represent the witness’s recollection of what he/she saw. However, the Court of Appeal has decided that they are not to be so treated (R v Cook [1987] QB 417) and therefore the restrictions imposed by the rule against hearsay will not apply (see also R v Constantinou (1990) 91 Cr App R 74, where this ruling was followed in relation to a photofit image).
Recognition Cases
Recognition cases, that is to say, those cases where the witness states that he/she knows the person who committed the offence as opposed to only being able to give a description, need to be carefully considered and Part B of section 3 of this Code adhered to. The eye-witness identification procedures in Part A should not be used to test whether a witness can recognise a person as someone he/she knows and would be able to give evidence of recognition along the lines of ‘On (describe date, time, location) I saw an image of an individual who I recognised as XY’. In these cases, the procedures in Part B of section 3 of this Code shall apply. The admissibility and value of evidence of recognition obtained when carrying out the procedures in Part B may be compromised if before the person is recognised, the witness who has claimed to know him/her is given or is made, or becomes, aware of, information about the person which was not previously known to the witness personally but which he/she has purported to rely on to support his/her claim that the person is in fact known to him/her.
R v Ridley (1999)
the Court of Appeal stated that there has never been a rule that an identification parade had to be held in all recognition cases and that it will be a question of fact in each case whether or not there is a need to do so. The view that an identification procedure is not required in these cases is supported by para. 3.12(ii).
The facts in Ridley, which it is suggested are not uncommon among patrolling officers, were that two police officers in a marked police vehicle noticed a car, which had been stolen earlier that day, drive past them. Both officers said that they recognised the defendant driving the car. The officers gave chase and gave evidence that the car was speeding and being driven dangerously. They decided that it was unsafe to continue pursuit, but arrested the suspect six days later. One of the officers claimed to have recognised the suspect because she had interviewed him for some 20 minutes five months previously and had seen him about town. She gave evidence that she had a view of the suspect in the car for about nine seconds. The other officer said that he recognised the suspect from a photograph but could not say when he had seen that photograph. He said that he had seen the suspect in the car for about two seconds. The court found that the female police officer’s identification had been complete and there was no requirement for her to have further identified the suspect.
R v Conway (1990)
The witnesses’ evidence was not as strong. There the witnesses stated that they recognised the accused simply because they knew him. The defence argument was that the witnesses did not actually know the accused and so could not have recognised him at the time of the offence. His conviction was quashed because of the prejudice caused by the absence of a parade
R v C; R v B [2003]
A case can still amount to one of recognition, even where the witness does not know the name of the suspect but later obtained those details from a third party, for example where the witness and the suspect went to the same school and the witness became aware of the suspect’s full names from other pupils at the school.
R (On the Application of H) v DPP [2003]
The court accepted that it was reasonable for the police not to undertake an identification procedure. In the circumstances of the case the police had every reason to believe that the claimant and the victim were well known to each other. The claimant had accepted that the victim knew her. There was no question of doubt as to the victim’s ability to recognise the claimant and as such this was a case of pure recognition where it was futile to hold an identification parade.
R v Harris [2003]
Care must be taken in cases where it is believed that the case is one of recognition not requiring an identification procedure. In R v Harris [2003] EWCA Crim 174 the witness stated that he recognised the suspect as being someone he went to school with. The suspect gave a prepared statement in which he disputed the suggestion that he was well known to the witness. Here the court held that an identification procedure should have been undertaken, as the circumstances of the case did not fall within the general exception of the Code, i.e. that an identification procedure would serve no useful purpose in proving or disproving whether the suspect had been involved in committing the offence. It is suggested therefore that where a suspect disputes that a witness knows him/her, an identification procedure should be considered.
When a suspect is filmed committing an offence, it may be admissible to give evidence of identification by way of recognition from a witness not present at the scene.
Attorney-General’s Ref (No. 2 of 2002) [2002]
The Court reviewed the previous case law and concluded that there are at least four circumstances in which a jury could be invited to conclude that a defendant committed an offence on the basis of photographic evidence from the scene:
- where the photographic image was sufficiently clear the jury could compare it with the defendant sitting in the dock;
- where a witness knew the defendant sufficiently well to recognise him or her as the offender depicted in the photographic image;
- where a witness who did not know the defendant spent substantial time viewing and analysing photographic images from the scene, thereby acquiring special knowledge which the jury did not have, evidence of identification based on comparison between them and a reasonably contemporary photo of the defendant could be given so long as the image and photograph were available to the jury.
Further, in R v Savalia [2011] EWCA Crim 1334 the court held that this did not just apply to facial features but could properly be extended to apply to identification of a defendant from closed-circuit television footage based on a combination of factors, including build and gait;
* a suitably qualified expert with facial mapping skills giving opinion evidence of identification based on a comparison between images from the scene and a reasonably contemporary photograph of the defendant could be given so long as the image and photograph were available to the jury.
R v Purlis [2017]
A dashboard camera captured a robber departing the scene in the car. The court allowed a facial mapping expert to give evidence that by comparing images from the dashcam with photographs of the suspect he could identify features which taken together lent powerful support to the contention that the images were of the same man. This followed the case of R v Atkins [2010] 1 Cr App R 8 where the court held that it is important to approach the evidence of facial mapping with caution. That does not mean that you cannot rely on the expert evidence. Simply that it needs to be considered with care. The court went on to say that an expert who spends many years studying this kind of evidence can properly form an opinion as to the significance of what he/she has found.
R v Lariba [2015]
Involved police officers while off duty recognising a suspect for a local ‘gang’ murder from CCTV pictures that had been circulated on the internet by their own police force. The officers were local officers who regularly came into contact with gang members; although the suspect’s face was partially covered the officers recognised him from his general demeanour, skin tone, hairline, eyebrows and clothing. At the time of the recognition the officers did not make any notes.
The Court of Appeal considered that the strength of the connection between the witnesses and the appellant was relevant to the issue whether a partial facial view of the suspect would be sufficient to permit recognition, noting that the witnesses were police officers who saw and spoke to Lariba on many occasions. The Court of Appeal stated that the more familiar in face, head, build and manner the person is to the witness the more likely it is that the witness can make a reliable identification of that person from a CCTV recording providing a similarly incomplete view of his face. In relation to formal identification procedures the Court of Appeal stated that Code D, para. 3.28 permits viewing of images with a view to recognition by a witness or police officer and tracing a suspect. Code D applies to any occasion when, for the purpose of obtaining evidence of recognition, any person including a police officer views a photographic or other recording (para. 3.34). The context of paras 3.35 and 3.36 was said to demonstrate that the procedure can in practice only apply to arrangements made by the police for specific viewing. They cannot practicably apply to invitations to the public in general to view scenes of crime or other images of suspects via television or internet outlets with a request that recognition is reported to the investigation team.
CCTV
It is important that where pictures or film are shown to specific police officers to try to identify suspects, this must be done in a controlled way. In R v Smith (Dean) and others [2008] EWCA Crim 1342, the court held that a police officer who was asked to view a CCTV recording to see if he could recognise any suspects involved in a robbery was not in the same shoes as a witness asked to identify someone he/she had seen committing a crime. However, safeguards that Code D was designed to put in place were equally important in cases where a police officer was asked to see whether he/she could recognise anyone in a CCTV recording. Whether or not Code D applied, there had to be in place some record that assisted in gauging the reliability of the assertion that the police officer recognised an individual. It was important that a police officer’s initial reactions to viewing a CCTV recording were set out and available for scrutiny. Thus, if the police officer failed to recognise anyone on first viewing but did so subsequently, those circumstances ought to be noted. If a police officer failed to pick anybody else out, that also should be recorded, as should any words of doubt. Furthermore, it was necessary that if recognition took place a record was made of what it was about the image that was said to have triggered the recognition. The case of R v JD [2012] EWCA Crim 2637 further highlights the need to keep records and comply with the Codes. As there was no record of how the police officer in this case viewed the CCTV, the court held that the defence could not test the officer’s account that he watched the footage alone and no records had been made as to what features of the image triggered the recognition and other aspects of the recognition. It had been highly suggestive of the investigating constable to tell C that she believed D to feature in the CCTV footage rather than simply asking him to watch it and waiting to see if he recognised anybody. Another case is R v McCook [2012] EWCA Crim 2817, where the court commented on some of the processes required by Code D, for example the witness’s statement did not reveal the nature of the viewing equipment, the number of times the footage was played, how the viewing arrangements were made, what the witness had been told prior to the viewing and whether or not he/she was alone.
If a film which has been shown to a witness is later lost or unavailable, the witness may give evidence of what he/she saw on that film but the court will have to consider all the relevant circumstances in deciding whether to admit that evidence and what weight to attach to it (Taylor v Chief Constable of Cheshire [1986] 1 WLR 1479).
In cases where officers view many hours of CCTV which results in them identifying suspects from these viewings, it is important that they provide an objective means of testing the accuracy of their recognition identification. This may include any initial reactions to seeing the CCTV images if the officer fails to recognise anyone on the initial viewing but does so at a later date; where there is recognition, any factors relating to the image that caused that recognition to occur (R v Yaryare, Hassan and Oman [2020] EWCA Crim 1314). In this case, the trial judge emphasised that from a practical point of view it may be unrealistic to expect an officer to note all of his or her passing thoughts whilst watching CCTV footage time and again. Any conclusions in a case such as the present are likely to emerge incrementally, and the fine detail of an improving or changing recognition may be difficult to record in a log. However, that said, the officer should record, in accordance with the approach established in Code D, at the least, the ‘Red Letter’ events—the moments, for instance, when they first begin to note similarities with a particular individual, along with any significant features that occur to them during the process of viewing. They should also note any factors that tend to indicate the suspect does not match a particular individual who is being considered.
