Advising clients at the police station - Identification procedures (Code D)

Learning Outcomes

This article explains the framework for formal identification procedures conducted under Code D of the Police and Criminal Evidence Act 1984 (PACE). It outlines when such procedures are necessary, the different methods available, the rights afforded to suspects during these procedures, and the role of the legal adviser. For the SQE1 assessments, you need to understand these procedures to advise clients detained at the police station and identify potential breaches that could affect the admissibility of identification evidence. This knowledge will enable you to apply the relevant legal rules and principles to SQE1-style single best answer MCQs.

SQE1 Syllabus

For SQE1, a practical understanding of identification procedures under PACE Code D is required. You will need to identify when such procedures are mandatory, the types of procedures available, the suspect's rights, and the implications of procedural breaches. This knowledge is essential for advising clients effectively at the police station stage.

As you work through this article, focus your revision on:

  • The circumstances requiring an identification procedure (Code D, para 3.12).
  • The main types of identification procedures: video identification, identification parades, group identifications, and confrontations.
  • The rights of suspects during these procedures, including the right to legal advice and information.
  • The role of the legal adviser in overseeing identification procedures.
  • Potential consequences of breaches of Code D, including the exclusion of evidence.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

  1. In which of the following situations must the police hold a formal identification procedure under PACE Code D?
    1. The suspect admits being at the scene but denies involvement, and the witness's account does not contradict this.
    2. The witness claims to recognise the suspect, whom they know well, and the suspect does not dispute this recognition.
    3. A witness claims they can identify a suspect who disputes their involvement, and the witness has not previously had an opportunity to identify the suspect in a formal procedure.
    4. The police have CCTV footage clearly showing the suspect committing the offence.
  2. Which type of identification procedure is generally preferred under Code D?
    1. Identification parade
    2. Group identification
    3. Confrontation
    4. Video identification

  3. True or False? A suspect has the right to refuse to take part in an identification parade, and this refusal cannot be mentioned at trial.

  4. What is the minimum number of other people who should resemble the suspect included in a standard video identification set of images?
    1. 6
    2. 8
    3. 10
    4. 12

Introduction

When a suspect is detained at a police station, the police may seek to confirm their identity through formal identification procedures. These procedures are strictly regulated by Code D of the Police and Criminal Evidence Act 1984 (PACE) to ensure fairness and accuracy. Understanding Code D is essential for advising clients detained at the police station, as breaches can lead to identification evidence being challenged and potentially excluded at trial. This article focuses on the key provisions of Code D relevant to SQE1.

When Identification Procedures Must Be Held

Code D, paragraph 3.12 outlines the circumstances where the police must hold a formal identification procedure as soon as practicable. This applies when:

  • an eyewitness has identified a suspect or states they could identify the person they saw committing the offence; and
  • the suspect disputes being the person the witness claims to have seen; and
  • the eyewitness has not yet been given an opportunity to identify the suspect in a formal identification procedure held under Code D.

However, Code D also provides exceptions where a procedure is not required:

  • If it is not practicable to hold a procedure.
  • If such a procedure would serve no useful purpose.

Code D gives examples of when a procedure would serve no useful purpose:

  • Where the suspect admits being at the scene of the crime and gives an account that is consistent with the eyewitness's observation.
  • Where it is not disputed that the suspect is already well-known to the eyewitness who claims to have recognised them.

Key Term: Identification Procedure
A formal method used by the police under PACE Code D to enable an eyewitness to identify a person suspected of involvement in an offence.

Types of Identification Procedures

PACE Code D outlines four main types of formal identification procedures. The police must initially offer video identification unless specific circumstances make another method more suitable or practicable.

Video Identification (Code D, Annex A)

This is the preferred method. The witness is shown moving images of the suspect along with images of at least eight other individuals who resemble the suspect.

Key features include:

  • Resemblance: The other individuals shown must resemble the suspect in age, general appearance, and position in life.
  • Distinguishing features: Any unique features of the suspect (e.g., scars, tattoos) must be concealed or replicated on the other images.
  • Viewing: The witness views the images at least twice and is told the person they saw may not be among the images.
  • Solicitor's role: The suspect's solicitor has the right to view the images beforehand and object if the selection is unsatisfactory. They can also be present when the witness views the images.

Identification Parade (Code D, Annex B)

This involves the suspect standing in a line with at least eight other people who resemble them.
Key features include:

  • Resemblance and distinguishing features: Similar rules apply as for video identification.
  • Suspect's choice: The suspect can choose their position in the line.
  • Witness procedure: Witnesses view the parade individually and are told the person they saw may not be present.
  • Recording: A colour photograph or video of the parade must be taken.

Group Identification (Code D, Annex C)

The witness sees the suspect in an informal group of people (e.g., in a public place like a shopping centre or station).
Key features include:

  • Consent: Can take place with or without the suspect's consent (covertly if refused).
  • Location: Must be chosen so that the suspect is seen amongst others who are broadly similar in appearance.
  • Recording: A photograph or video should be taken immediately after any identification.

Confrontation (Code D, Annex D)

This involves showing the suspect directly to the witness and is only used as a last resort when other methods are impracticable.
Key features include:

  • Warning: The witness must be told the person they saw may or may not be the person they are about to see.
  • Presence of solicitor: The suspect’s solicitor or friend should normally be present.

Key Term: Video Identification
The primary identification method under Code D where a witness views moving images of the suspect alongside at least eight other similar individuals.

Key Term: Identification Parade
An identification procedure where the suspect stands in a line with at least eight other similar individuals for viewing by a witness.

Key Term: Group Identification
An identification procedure where a witness attempts to identify a suspect within an informal group of people, often in a public setting.

Key Term: Confrontation
An identification procedure of last resort where a witness is directly shown the suspect.

The Suspect's Rights During Identification Procedures

Code D provides several important rights for suspects facing identification procedures. These are essential for ensuring fairness and form a key part of the advice a legal adviser must give.

Right to Legal Advice

A suspect is entitled to free and independent legal advice before consenting to, and during, any identification procedure (Code D, para 3.1). The procedure should not normally take place without the solicitor present if requested, unless specific exceptions apply (e.g., causing unreasonable delay).

Information Before the Procedure

The identification officer must explain the procedure, the suspect’s rights (including legal advice), and the consequences of refusal before the procedure takes place (Code D, para 3.17). The suspect or their solicitor must also be given details of the first description of the suspect provided by the witness (Code D, para 3.1).

Key Term: Identification Officer
A police officer, usually an Inspector or above and independent of the investigation, responsible for conducting and overseeing the identification procedure according to Code D rules.

Right to Object

The suspect or their solicitor has the right to make reasonable objections to the arrangements for the procedure or the other participants/images used (e.g., if others do not resemble the suspect). The identification officer must consider these objections and, if reasonable, take steps to remedy them if practicable (Code D, Annex A para 7, Annex B para 13).

Refusal to Cooperate

A suspect cannot be forced to take part in a video identification (where their image needs to be taken) or an identification parade. However, refusal has consequences:

  • It can be mentioned in court, and the court may draw adverse inferences.
  • The police may proceed with a covert video identification (if images are available) or group identification, or use confrontation.

Worked Example 1.1

David is arrested for robbery. The witness gave a description including a prominent scar on the suspect's left cheek. The police propose a video identification. David's solicitor inspects the proposed set of images and notes that none of the other eight individuals have facial scars.

What should David's solicitor advise the identification officer?

Answer: David's solicitor should object to the set of images under Code D, Annex A, para 7. The solicitor should state that the images are unsuitable because David's distinguishing feature (the scar) is not replicated or concealed on the other images, making the procedure unfair. The solicitor should request that the identification officer either finds other participants with similar scars or arranges for David's scar to be concealed in the image and similar concealment applied to the others.

Exam Warning

Be aware of the consequences of a suspect refusing to cooperate with an identification procedure. While they cannot be forced, their refusal can be used as evidence against them at trial, and alternative, potentially less favourable procedures may be used instead.

Worked Example 1.2

A solicitor attends an identification parade for their client, Alex. The solicitor notices that two witnesses who are waiting to view the parade are talking in the waiting area.

What should the solicitor do?

Answer: The solicitor should immediately inform the identification officer of the potential breach of Code D, Annex B, para 14 (which requires witnesses to be segregated). The solicitor should request that the identification officer investigates whether the witnesses discussed the case and should ensure this potential contamination is formally recorded. The solicitor should advise Alex that the fairness of the parade may have been compromised.

Breaches of Code D and Consequences

Significant and substantial breaches of Code D can lead to the exclusion of the identification evidence at trial under s.78 PACE 1984. The court will consider whether admitting the evidence, given the breaches, would have such an adverse effect on the fairness of the proceedings that it ought not to be admitted. Minor breaches are less likely to lead to exclusion.

Revision Tip

Focus on the core requirements for when an ID procedure must be held (Code D, para 3.12) and the main features distinguishing the four types of procedures. Understanding the suspect's rights and the solicitor's role is key for advising clients.

Key Point Checklist

This article has covered the following key knowledge points:

  • Formal identification procedures are governed by PACE Code D.
  • A procedure must generally be held if identity is disputed by the suspect and an eyewitness believes they can identify the perpetrator (Code D, para 3.12), unless exceptions apply.
  • The main types of procedure are video identification (preferred), identification parade, group identification, and confrontation (last resort).
  • Suspects have key rights, including the right to legal advice, information, and the ability to make reasonable objections.
  • Refusal to cooperate can lead to adverse inferences and alternative procedures.
  • Specific safeguards apply to vulnerable suspects and juveniles, including the requirement for an appropriate adult.
  • The legal adviser plays a critical role in ensuring fairness and adherence to Code D.
  • Significant breaches of Code D may lead to the exclusion of identification evidence under s.78 PACE 1984.

Key Terms and Concepts

  • Identification Procedure
  • Video Identification
  • Identification Parade
  • Group Identification
  • Confrontation
  • Identification Officer
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