Week 6. Code D. Identification Flashcards
Any procedure in this code involving the participation of a witness who is mentally disordered, mentally vulnerable, or a juvenile … must take place in the presence of an appropriate adult.
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If a procedure in this code requires a persons consent, how would we obtain the consent of a mentally disordered/vulnerable person or a juvenile?
Mentally vulnerable - in presence of an AA
Juvenile - only valid if consent of parent/guardian also obtained
If juvenile under 14 then consent of parent/guardian is enough on its own
What if parent/guardian of juvenile does not consent to ID prodecures?
The S3.21 can apply - when suspect ia not avail/ ceased to be avail and video or group ID procedures can be done with use of still images
Examples of when it is not practicable to obtain a detainees consent to search, examine or take a photo of an identifying mark on a person…
And also when not practicable to obtain persons consent to a photo being taken….
When the person is drunk or otherwise unfit
When there are reasonable grounds to suspect that the person would take steps to prevent it happening eg by violently resisting, covering or concealing the mark and it would not otherwise be possible
Re juvenile - if parent/guardian cannot be contacted in sufficient time to allow the search/examination/photograph to be carried out
Re taking photo - all above, plus, when in order to obtain suitable photo it is necessary to take it covertly
Where an appropriate adult for a juvenile is not the parent/guardian/representative of local authority (if in care).. then the parent/guardian/local authority do NOT need to be present to give consent …..
They DO however need to be fully informed before being asked to give consent and must be given the same information about the procedure and the juveniles suspected involvement as has been given to the juvenile and AA.
Consent may be obtained at anytime before the procedure takes place.
The parent/guardian must be allowed to speak to the juvenile and AA if they so wish.
ABE guidelines (youth justice and criminal evidence act) re guidance on interviewing victims and witnesses indicate that a pre trial support person should accompany a vulnerable witness during any ID procedure
This support person should not be a witness in the investigation (or likely to be)
Key factor to consider when deciding if to hold an ID parade?
Whether a failure to hold a parade could be a matter of genuine potential prejudice to the suspect
All reasonable steps should be taken to investigate the possibility of one ID option before moving on to another…
An offer by a suspects solicitor to find volunteers to stand on parade is such a reasonable step
R v britton & richards
What if suspect does not consent to ID procedures?
Refusal can be given in evidence at court.
Can use still images of the suspect taken from custody, cctv, video recorder interviews
Power under S61(6a) PACE paragraph 4.3 (e) allows what?
Fingerprints to be taken of a suspect who has not yet been arrested, to check as to the identity of that person…
if their identity cannot be readily ascertained, or the constable has reasonable grounds for doubting wether a name given is their real name
Can use a mobile device to so a street check of fingerprints against the database
Fingerprints must be destroyed after they have been checked
What can a Speculative search be done on
Fingerprints
DNA
Footwear impressions
For persons suspected of committing and offence but not arrested, charged or informed they will be charged, may be subject to a speculative search only if they consent in wriring.
Recordable offence…
Offences for which Convictions, reprimands and warnings may be recorded in national police records.
Any offences which carry a sentence of imprisonment on conviction
(Plus non imprisonable offences under vagrancy act, street offences act, RTA and more)
A qualifying offence…
Offences which involve the use or threat of violence or unlawful force against persons, sexual offences, offences against children and others such as murder, manslaughter, false imprisonment, kidnapping, threats to kill, consipracy to murder, GBH and ABH, posession of firearms, robbery, burglary, taking/posessing indecent images, rape, sexual assault, exposure, child sex offences
A search/ examination of a detainee to find marks in order to establish identity may be carried out without consent if authorised by who?
Inspector
S54a pace
Extent of search is no more than the officer considers necessary to achieve the required purpose
Such marks located may be photographed with or without consent
Officer may use reaosnable force if required where a person is unwilling to cooperate
A detainee may only be searched/ examined or photographed by an officer of the same sex
S54a PACE
S64 PACE…
An officer may photograph any person detained at a police station…
And any person detained elsewhere than a police station who has been arrested, given direction under s27 violent crime reduction act, given a pnd
Taken with or without consent
Officer may require the person to remove any item or substance worn on, or over, all or part.of their head or face
If a suspect is at station voluntarily and not detained, force MAY NOT be used to do what?
Search/examine for marks to identify them
Take photos of identifying marks
Take a photo of the person
Code d s5.22: Photos of persons or of their identifying marks not taken in accordance with pace code d s5.1 (detained persons) or s5.12 (persons detained elsewhere ie given pnd etc)… must be destroyed unless…
The person is charged or informed they may be prosecuted
Is prosecuted
Is cautioned
Or gives consent for photos to be retained
When a photo is to be destroyed under code D S5.22 (person not detained), the person must be given an opportunity to witneas the destruction
Or to have a certificate confirming destruction…
When request certificate?
They must request the certificate within 5 days of being informed the destruction is required
A photograph taken under S54a PACE may be used or disclosed to any person, for any purpose relating to what….
The prevention or detection of crime
The investigation of an offence
The conduct of a prosecution
The use of the photo is for any conduct which constitutes a criminal offence
There is NO power to arrest someone convicted of an offence solely to take their photograph.
The power only applies when they are in custody as a result of exercising another power.
Identification by body samples…
Intimate sample
Non imtimate sample
Intimate.. dental, blood, semen, tissue, fluid, urine, pubic hair, or swab from genitals or a person’s body orifice (other than mouth)
Non imtimate …. sample of hair (non pubic), nail sample, swab body part (excluding those classed as intimate parts), saliva, skin impression (i.e of foot)
In using intimate/non imtimate samples in evidence… DNA alone is not sufficient for a conviction.. need supporting evidence.
In using such examples to prove ID, the prosecution will give evidence of..
The probability of such a match happening by chance and
The liklihood that the person responsible was in fact the defendant
Non imtimate samples.
Consent required from detainee.. unless …
If arrested for recordable offence and has not had a non intimate sample of the same type and same body part taken in the course of the investigation
Had sample taken before and it proved insufficient
If person held on authority of a court and and inspector authorises it (as suspects detainee may be involved in recorded offence and believe sample will prove or disprove
Or if person had sample before but nfa’d and samole destroyed, then arrested again for same offence
Pace s63a (4) provide powers to make a requirement for attend to attend police station for non intimate samples..
Time limits …
6mths from day the investigating officer was told the previous sample was insufficient/not suitable
For DNA that has been destroyed prior to resuming an investigation… not more than 6 mths from date the investigation resumed.
Person charged with recordable offence - not more than 6mths from day the person was charged /informed reported
Code D annex G deals with requirement for person to attend police station for fingerprints and samples
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Code D annex F deals with destruction and speculative searches
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Video identification
Arrangements for obtaining and ensuring suitable set of images… responsibility of who?
How mang people involved in video ID?
Responsibility of identification officer with no direct involvement in case
Suspect plus at least 8 other people who resemble the suspect in age, general appearance , and position in life.
Only 1 suspect may be shown in any set of images unless ….
There are 2 suspects of roughly similar appearance…
In which casw they may be shown together with at least 12 other people
Suspects solicitor may only be present ar the video identification on request and with prior agreement of the identification officer.
The ID officer can refuse the solicitors presence if they feel their presence will deter or detract any eye witness
The suspect, or their solicitor, friend or AA must be given reasonable opportunity to see the complete set of images before it is shown to any eye witness
The suspect can make a reasonable objection to the set of images or any participant and must state their reasons for objection. Steps shall be to remove the grounds for objection and if this cant be done the reason for this will be given
Video ID….
The people in the set of 8 (plus suspect) shall resemble the suspect.
They do not have to be identical or extremely similar
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Before ID parade.. the suspect or their solicitor will be given details of the 1st description by any witness attending the ID parade
Where a broadcast or publication is made, the suspect or their solicitor should be allowed to view any material released to the media for purposes of identifying and tracing the suspect (provided it is practicable to do so and won’t delay the investigation unreasonably )
Group identifications can take place with the suspects consent and cooperation, or covertly without their consent
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Code D Annex C - group identification
Code c annex a b c d e f g …..
What do the annex’s cover?
A - video identification B - identification parade C - group identification D - confrontation by eye witness E- showing photographs to eye witness F- fingerprints , samples and footwear G - requirement for person to attend police station for fingerprints and samples
Group identification…
If a suspect unreasonably delays joining the group or deliberately conceals themselves from the sight of the witness, this may be treated as a refusal to cooperate.
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Group ID without suspects consent…
Suspect has no right to have solicitor, AA or friend present as the ID will take place without then knowledge of the suspect
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Group ID should only take place in a police station for reasons of safety, security or because it is not practicable to hold them elsewhere
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Annex d confrontation by eye witness
Confrontation must take place in the presence of the suspects solicitor, friend or interpreter unless this would cause reasonable delay
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Annex E -showing photographs to eye witness
Who responsible for supervising this?
Sergeant or above- responsible for supervising and directing the showing of photographs (the actual showing can be done by another officer or police staff)
Showing photographs to Eye witness
Shall be shown no more than 12 photographs at a time
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Where the police have NO suspect, code D provides for witnesses (incl police officers) to be shown photos.
If photos are shown then the procedure in annex E applies.
A police officer who is a witness for the purposes of this part of the code is subject to the same principles and procedures as a civilian witness
Code D annex F
A dna sample is to be destroyed within 6mths of being taken ….
Unless the sample is required for disclosure as evidence, in which case it may be retained for as long as this need exists under the CPIA (crininal investigations and procedures act 1996).
The DNA profile is then stored on the national DNA database - the retention period for the profile depends on the persons age, the outcome of the investigation and if the recordable offence is a qualifying offence / excluded offence
Annex F - samples and fingerprints
Retention periods for convictions and non convictions…
CONVICTIONS
Any age - convicted or given caution for recordable offence which IS also a qualifying offence - retain for INDEFINITE period
18 or over- convicted / caution for recordable offence that IS NOT a qualifying offence - retain for INDEFINITE period.
Under 18 - convicted / caution for recordable offence which IS NOT a qualifying offence:-
- if 1st conviction /caution then retain for 5yrs plus length of any prison sentence.
- if 1st conviction and prison sentence is 5 years or more then retain INDEFINITELY
- if 2nd conviction/ caution then retain INDEFINITELY
NON CONVICTIONS:
Any age - charged but NOT convicted of recordable or qualifying offence - retain for 3 years (plus 2 yr extn if granted by district judge).
OR retain INDEFINITELY if person has previous conviction for recordable offence that is not excluded
Any age - arrested but NOT charged with recordable qualifying offence - retain for 3yrs if granted by biometrics commissioner. Plus 2 yrs extn if granted by district judge
OR INDEFINITE if person has previous conviction for recordable offence which is not excluded
Any age - arrested or charged with recordable offence which is NOT a qualifying offence - INDEFINITE if the person has a previous conviction for a recordable offence which is not excluded. Otherwise NO RETENTION
18 or over- given pnd for recordable offence - retain for 2 yrs
A recordable offence is one for which the police are required to keep a record
Generally speaking these are imprisonable offences
But also include some non imprisonable offences such as begging and taxi touting.
Police are NOT able to take or retain DNA or fingerprints of an individual who is arrested for a NON RECORDABLE offence
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A qualifying offence is one listed under S65a of PACE (comprises of sexual, violent, terrorism and burglary offences)
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An excluded offence is a recordable offence which is NOT a qualifying offence, was committed when the person was under 18 for which they received a sentence of less than 5 years and is the only recordable offence for which the person has been convicted.
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What is a recordable offence ?
A recordable offence is one for which the police are required to keep a record
What is a qualifying offence ?
A qualifying offence is one listed under S65a of PACE (comprises of sexual, violent, terrorism and burglary offences)
What is a qualifying offence?
A qualifying offence is one listed under S65a of PACE (comprises of sexual, violent, terrorism and burglary offences)
What is an excluded offence?
An excluded offence is:
- a recordable offence which is NOT a qualifying offence &
- which was committed when the person was under 18 for which they received a sentence of less than 5 years &
- is the only recordable offence for which the person has been convicted.
Where the retention framework requires the deletion of a persons DNA profile and fingerprints, the act first allows a Speculative search against dna and fingerprints obtained from crime scenes which are stores on databses ndnad and ident1.
Once the speculative search has been conducted the profile and fingerprints are deleted.
UNLESS there is a match and then they will be kept for the duration of the investigation and thereafter in accordance with the retention framework
For qualifying offences pace allows for an extension to the retention periods to be applied for…
Who must apply? And under what circs?
Chief constables
If considered necessary for the prevention and detection of crime
Where an individual is arrested but NOT charged with a qualifying offence, their dna an fingerprints will normally be deleted.
However the police can apply to the biometrics commissioner for permission to retain for a period of 3 years (from date sample taken)
In what timescale must the application be made?
Within 28 days of the decision not to proceed with a prosecution
At end of 3 year period, police can apply to a district judge for a single 2yr extn
Footwear impressions taken in accordance wirh s61a PACE can be retained for how long?
As long as necessary for purposes related to the prevention or detection of crime, the investigation of an offence, or the conduct of a prosecution
Fingerprints, DNA samples and footwear impressions taken for elimination purposes
(Taken from someone NOT suspected of committing an offence - i.e victim/witness)
When must they be destroyed?
As soon as they have fulfilled the purpose for which they were taken
Unless:
They were taken for the purpose of investigation whereby a person has been convicted of an offence OR
Fingerprints, footwear or samples were also taken from a convicted person for the purpose of that investgation
Elimination prints/samples given voluntarily by persons not suspected of committing an offence…
The person may may give consent for their sample/ prints to be retained for use after the investigation ends… the person must be fully informed orally and told they can withdraw consent at anytime.
The consent must be obtained in writing using nationally agreed forms
Annex G - requirement for a.person to attend a police station for fingerprints and samples..
Timescale…
Must give the person at least 7 days within which to attend the station
May direct them to attend at a specified time of day or between specified times
An inspector may authorise a period of less than 7 days if there is an urgent need for the persons prints/samples for the purpose of investigation. - Authorisation must be recorded as soon as practicable
Code D
Requires that 1st description must be recorded (regardless of time given)
1st description of suspect must be disclosed to the defencd in a pre trial disclosure in ALL cases
Record must be kept in a form that enables details of the description to be accurately produced from it - in a visible and legible form
1st description may be recorded electronically or on paper
When the media has been use to gain ID of a suspect , when a broadcast or publication is made and a copy of the material is released to the media for recognising/tracing suspect… should a copy of the material be kept?
Yes. A copy MUST be kept.
when a broadcast or publication is made and a copy of the material is released to the media for recognising/tracing suspect… is the suspecr/solicitor required to view the material released before an id procedure?
They must be allowed to view the material prior to any identification procedure provided it is practicable and would not unreasonable delay the investigation.
In code D what does the phrase ‘KNOWN’ refer to?
KNOWN means that there ia sufficient information known to police to establish reasonable grounds to suspect a person of involvement in the offence
Code D.. deals with what types of identification? I.e Not just visual
Visual samples (intimate/non intimate) fingerprints footwear Aural
Types of visual identification
Video ID
ID parades
group ID
confrontation ID
Intimate samples.
Can they ever be taken by a police officer?
Can they be taken when the suspect is not in police detention?
Uribe is an intimate sample and therefore can be taken by a police officer
Yes.. they may be taken from a person not in police detention
Is a dental impression an intimate sample?
Is a sample of salvia a non intimate sample?
Is a sample of tissue fluid Intimate?
Yes. Dental impression is intimate
Saliva is non intimate
Yes. Tissue fluid is intimate.
Power To search or examine detainee for marks to identify them?
What if they refuse to cooperate with such an examination/search?
S54a PACE
Can search without consent.. authorised by an inspector
Issuing a detainee with the explanation of Id procedures and the notice in relation to it… auhtorised by who?
And when may that differ?
Inspector not involved in investgation.
May be performed by custody officer or other police officer or staff not involved in investgation if inspector not available
Re id procedures.. if suspect is ‘known’… what does known mean?
There is sufficient info that police have reasonable grounds to suspect a persons involvement in offence
Re id procedures , if a suspect is ‘available ‘
. What does available mean?
Available immediately for id procedures or will be available in reaonably short time
If suspect is known and available, what id procedures are available?
Video
Id parade
group id
