Visual identification before trial Flashcards
What must the prosecution standard of proof?
The prosecution must prove beyond reasonable doubt that the defendant is responsible for the crime.
What are not considered visual identification evidence?
- Mere description of clothing/vehicle (e.g., ‘I couldn’t see his face but he was wearing a purple jumper’).
- The suspect’s connection to a particular place or others at the scene (e.g., ‘I thought it was Maria because I know she is always at the café on a Saturday morning’).
- A description of the suspect (e.g., ‘He was 5’7’ with dark hair and blue eyes’).
Which part of PACE deals with visual identification?
PACE Code D
When shall an identification procedure be held according to PACE Code D?
An identification procedure shall be held where:
1. An offence has been witnessed and an eyewitness has identified a suspect or purported to have identified them; or
2. An eyewitness is available who expresses an ability to identify the suspect; or
3. An eyewitness has a reasonable chance of being able to identify the suspect.
unless an exception applies
When is an identification procedure not required?
An identification procedure does not need to be held if it is not practicable or would serve no useful purpose in proving or disproving the suspect’s involvement in the offence.
e.g the suspect is already known to the eye witness
What identification procedures may be used if the suspect’s identity is known to the police?
- Video identification - the eyewitness is shown moving images of a known suspect, together with similar images of others who resemble the suspect.
- Identification parade - the eyewitness sees the suspect in a line of others who resemble the suspect.
- Group identification - the eyewitness sees the suspect in an informal group of people.
Code D para 3.12
What can be done if the suspect’s identity is not known to the police?
The eyewitness can be shown photographs or taken to a particular area in an attempt to identify the alleged offender.
Who is responsible for the arrangements and conduct of eyewitness identification procedures?
An officer not below inspector rank who is not involved with the investigation (‘the identification officer’).
When should a suspect be invited to participate in a video identification procedure?
The suspect shall be invited unless a video identification is not practicable or an identification parade is more suitable.
What should be done if the suspect refuses to participate in a video identification procedure?
An alternative can be considered.
When should covert procedures be used in video identification?
Covert procedures should be used as a last resort if all other procedures have been considered and rejected.
What formalities must be followed before the video identification?
A record of the eye-witness’s description must be made and given to the suspect or their solicitor before the identification procedure.
What must be explained to the suspect before the identification procedure?
- The purpose of the procedure
- Their entitlement to free legal advice
- The procedures for holding it
- Their right to have a solicitor or friend present
- That they do not have to consent to or cooperate in the procedure
What happens if a suspect does not consent to a video identification procedure?
Their refusal may be given in evidence in any subsequent trial, and police may proceed covertly without their consent.
What is the VIPER procedure in video identification?
The suspect is videoed, and at least 8 lookalikes are chosen to resemble the suspect in age, appearance, and position in life (any unusual features are concealed or replicated)
Code D Annex A
What must be done if the suspect has a reasonable objection to the set of images in VIPER?
The suspect shall be asked to state the reasons for the objection.
Who sees the video before the eye-witnesses?
The suspect, their solicitor, friend or AA must be given reasonable opportunity to see the images before the eye-witnesses
What must be recorded during the video identification procedure?
The recording must show all persons present, what the eye-witness says, and what is said to the eye-witness by the identification officer and others.
What is the eye-witness told before seeing the videos?
That the person they saw may or may not appear in the images
When can the suspect’s solicitor be present at the VIPER procedure?
- if they request
- and the identification officer gives prior consent
What restrictions are placed on eye-witnesses during video identification?
Eye-witnesses cannot communicate with each other.
What is required for an identification parade?
It must consist of at least eight people who resemble the suspect, and unusual physical features should be concealed.
The suspect can choose their position in the line.
What must be done before the identification parade?
A video recording or color photograph must be taken and supplied to the suspect or their solicitor upon request.
What restrictions are placed on witnesses during the identification parade?
Witnesses must not communicate with each other, overhear others, see any member of the parade beforehand or see the suspect before or after the ID parade
What can witnesses request during the identification parade?
Witnesses can ask to hear any member speak, adopt a specified posture, or move.
What is required for group identification?
It can take place with or without consent, and the location should allow the suspect to be seen by the witness among others.
What should be done during group identification?
A color photograph or video should be taken of the general scene.
What must the eye-witness be told before a confrontation?
They must be told that the person they saw may, or may not, be the person they are to confront.
What is the first step when a breach of code D is suspected?
The trial judge determines if a breach has occurred, often without a voir dire.
What happens if a breach is disputed?
A voir dire may be required.
What is the remedy for a breach of code D?
Apply for exclusion of evidence under s.78 PACE.
Does a breach of the code automatically lead to exclusion of evidence?
No. Evidence will only be excluded if there has been significant prejudice to the accused.
What happens if the judge determines there is prejudice?
The judge must decide if the admission of the evidence would adversely affect the fairness of proceedings.
When is identification evidence usually excluded?
When important safeguards, such as the right to a formal identification procedure, have been flouted.
What can defense advocates do if identification evidence is admitted despite a breach?
They are permitted to comment on the breach in their closing speech.
What should the trial judge do regarding the breach when evidence is admitted?
The judge ought to draw the jury’s attention to the breach and invite them to consider the reasons for the code.
How should the jury assess breaches of code D?
The jury should assess whether the breaches cause them to have doubts about the safety of the identification.
