Visual Identification Procedure - Investigative Stage

Question 1

Who and what is the burden of proof in a criminal trial?

Answer 1

• The prosecution must prove beyond reasonable doubt that the person in the dock committed the offence.

Question 2

How can identification be established when it is disputed?

Answer 2

• DNA evidence
• Telephone evidence
• Fingerprint evidence
• Testimony from witnesses

Question 3

What is visual identification by an eyewitness?

Answer 3

• An eyewitness recognises a suspect as someone they have seen before (e.g., a family member, acquaintance, or a stranger seen regularly).
• An eyewitness may never have seen the suspect before but can describe them and identify them again.

Question 4

What does NOT count as visual identification evidence?

Answer 4

• A description of clothing or a vehicle.
• A suspect’s association with a particular place (e.g., “I thought it was Maria because she is always at the café on Saturdays”).
• A general description of the suspect (e.g., “6’0” with brown hair and green eyes”).

Question 5

Why is caution required in visual identification?

Answer 5

• Eyewitness testimony has led to historical miscarriages of justice.
• Legal protections exist to prevent wrongful identification.

Question 6

What protections exist for visual identification?

Answer 6

• PACE Code D (for the investigative stage).
• Turnbull guidelines (for trial).

Question 7

What is PACE Code D?

Answer 7

• It sets out the police procedures for dealing with witness identifications.
• It aims to:
  o Protect innocent suspects from mistaken identification.
  o Make valid identifications more reliable and challenge-proof.

Question 8

How can police handle cases where a suspect is not known?

Answer 8

• Taking the witness to a neighbourhood or location to see if they recognise someone.
• Showing photographs in accordance with Code D, Annex E.

Question 9

When is an identification procedure required?

Answer 9

• When a witness has:
  o Identified a suspect or claims to have done so.
  o Expressed the ability to identify the suspect.
  o A reasonable chance of being able to identify the suspect.
• When the suspect disputes being the person identified.

Question 10

When is an identification procedure NOT required?

Answer 10

• When it is not practicable or would serve no useful purpose.

Question 11

What are the main types of identification procedures?

Answer 11

• Video Identification – A witness views a video with the suspect among others.
• Identification Parade – A traditional line-up.
• Group Identification – The suspect is placed in an informal group.

Question 12

Who oversees identification procedures?

Answer 12

• An officer of at least inspector rank who is not involved in the investigation.

Question 13

When should video identification be used?

Answer 13

• By default, unless:
  o It is not practicable.
  o An identification parade is more suitable.
• If the suspect refuses, an alternative method can be used.
• Covert procedures are a last resort.

Question 14

What must the police do before conducting an identification procedure?

Answer 14

• Record the description first given by the witness.
• Provide a copy to the suspect or their solicitor before the procedure.
• Inform the suspect about:
  o The purpose of the procedure.
  o Their right to legal advice.
  o The procedure steps, including their right to have a solicitor or friend present.
  o The fact that they do not have to consent or cooperate.
  o The potential use of covert identification if they refuse.

Question 15

What is the VIPER system?

Answer 15

• A system with over 10,000 video clips used for video identification.
• The suspect is filmed facing the camera and from left, right, and centre.
• The suspect’s image is placed among at least 8 others who resemble them in age, appearance, and social position.

Question 16

What must be done before showing video identification to witnesses?

Answer 16

• Unusual features of the suspect should be concealed or replicated.
• The solicitor/friend/appropriate adult must review the images first.
• If the suspect has objections, they must state their reasons.
• Witnesses must be told that the suspect may or may not be in the video.

Question 17

What are the key rules for showing video identification to witnesses?

Answer 17

• Only one witness at a time.
• Witnesses must not communicate with each other.
• The suspect’s solicitor may only attend if pre-approved.
• The video identification must be recorded with sound and show:
  o Everyone present within sight or hearing of the witness.
  o Everything the witness says.
  o Everything said to the witness.

Question 18

What is an identification parade?

Answer 18

• A traditional line-up of at least 8 people who resemble the suspect.
• Takes place in a normal room or behind a one-way screen.
• Everything must be conducted in front of the suspect and their solicitor/friend.

Question 19

What must happen before an identification parade?

Answer 19

• A video/photo of the parade must be recorded and supplied to the solicitor if requested.
• The suspect may choose their position in the lineup.

Question 20

What safeguards are in place for an identification parade?

Answer 20

• Witnesses must not see the suspect before or after the parade.
• Witnesses must not communicate with each other.
• Witnesses must be told that the suspect may or may not be in the lineup.
• Witnesses can ask to:
  o Hear the suspect speak.
  o See the suspect adopt a posture.
  o See the suspect move.

Question 21

What is group identification?

Answer 21

• A suspect is identified in a natural setting rather than in a lineup.
• It can be done with consent or covertly without consent.
• A photo or video of the scene must be taken.
• Witnesses must not communicate with each other.

Question 22

What is a confrontation by an eyewitness?

Answer 22

• The eyewitness sees the suspect in person.
• The suspect is told that the person they saw may or may not be them.
• It should take place at a police station, either in a normal room or with a one-way screen.

Question 23

What happens if there is a breach of Code D?

Answer 23

• The court will determine the breach via a voir dire (a mini-trial within a trial).
• A breach does not automatically exclude evidence.
• The court must assess if there was significant prejudice.
• If the breach adversely affects fairness, the evidence may be excluded.

Question 24

What happens if the court allows evidence despite a breach?

Answer 24

• The defence can comment on the breach.
• The trial judge must direct the jury on the breach.
• The jury must assess its impact.