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

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Overview

Identification procedures under Code D of the Police and Criminal Evidence Act 1984 (PACE) are essential in criminal investigations and required knowledge for the SQE1 FLK2 exam. These procedures balance the need for accurate suspect identification with the protection of individual rights. This guide reviews Code D provisions, identification methods, legal advisor roles, and relevant case law, equipping aspiring solicitors with the knowledge needed to handle complex scenarios in practice and excel in their exams.

Legal Framework of Code D

Code D provides the regulatory structure for identification procedures based on key principles:

  1. Accuracy: Ensuring correct identification.
  2. Fairness: Treating suspects and witnesses equitably.
  3. Consistency: Standardising procedures across areas.
  4. Transparency: Keeping clear documentation for review.

These principles are essential for challenging identification evidence, as seen in cases like R v Forbes [2001] UKHL 40, where significant deviations from Code D can make evidence inadmissible.

Identification Procedures: Methods and Applications

Video Identification

The preferred approach in many areas includes:

  1. Showing a series of moving images with the suspect and at least eight others.
  2. Ensuring all individuals resemble the suspect's general look.
  3. Allowing witnesses to view each image twice before deciding.

Example: In a robbery case with a suspect having a unique tattoo, the legal advisor must ensure all lineup individuals have similar tattoos or that the suspect’s tattoo is hidden for fairness.

Identification Parades

Though less common, these remain valid under Code D and require:

  1. At least eight individuals resembling the suspect.
  2. Allowing the suspect to choose their lineup spot.
  3. Permitting the presence of the suspect’s legal representative.

Case Study: R v Boardman [1975] AC 421 highlighted the importance of fair identification parades, especially with suspects having distinctive features.

Group Identification and Confrontation

Used in specific situations:

  • Group Identification: When other methods are not possible.
  • Confrontation: A last resort, adhering to strict conditions.

Both methods require careful management to follow Code D principles.

Role of the Legal Advisor

Legal advisors play a key role in identification procedures:

  1. Client Consultation: Explaining procedures and rights.
  2. Procedural Oversight: Ensuring compliance with Code D.
  3. Challenging Irregularities: Objecting to deviations from procedures.
  4. Documentation: Recording details of the process and objections.

Practical Application: If an officer suggests which image has the suspect during a video identification, the advisor should object, request a new procedure, and document the issue for potential challenges to admissibility.

Legal Considerations and Case Law

Faulty identification procedures can have major consequences, potentially making evidence inadmissible. Key decisions include:

  1. R v Turnbull [1977] QB 224: Provided guidelines for assessing identification reliability.
  2. R v Fergus (Ivan) [1994] 98 Cr App R 313: Highlighted the risks of mistaken identification.
  3. R v Brophy [1981] 2 All ER 705: Applied visual identification principles to voice recognition.

Courts often stress that while technical breaches may not automatically exclude evidence, serious violations affecting fairness are likely to lead to exclusion under s.78 of PACE.

Technological Advancements and Challenges

New technologies are transforming identification procedures:

  1. Facial Recognition Software: Offers higher accuracy but raises privacy issues.
  2. AI-Assisted Lineup Creation: Provides consistency but may introduce biases.
  3. Virtual Reality Reconstructions: Enables immersive crime scene recreations.

Legal advisors must understand these developments' benefits and challenges, ensuring compliance with data laws and Code D.

Examples and Applications

Example 1: Video Identification Fairness

In a theft case, the suspect has a noticeable facial scar. The legal advisor must ensure that everyone in the video lineup has similar scars or that the suspect’s scar is hidden to ensure fairness.

Example 2: Challenging Procedural Errors

During an identification parade, the officer inadvertently mentions the suspect’s name to the witness. The legal advisor should stop the procedure, document the error, and request a new process with another witness.

Example 3: Applying Turnbull Guidelines

In a night-time assault case, the witness claims they saw the suspect for just a few seconds in poor lighting. The legal advisor should examine this identification using the Turnbull guidelines, possibly questioning its reliability given the short observation time and poor visibility.

Example 4: Technological Considerations

A facial recognition system is used to identify a suspect from CCTV footage. The legal advisor must evaluate potential challenges to this evidence, including the system's accuracy, potential biases, and data protection compliance.

Conclusion

Handling Code D identification procedures is vital for SQE1 FLK2 exam success and effective legal practice. Key points include:

  1. Understanding the legal framework and principles of Code D.
  2. Familiarity with various identification methods and their requirements.
  3. Recognising the role of legal advisors in ensuring fairness.
  4. Knowledge of case law to challenge identification evidence.
  5. Awareness of technological advances and their impact.

By understanding these aspects, aspiring solicitors can develop the skills needed to manage complex identification scenarios, prepare for the SQE1 FLK2 exam, and establish a competent and ethical legal practice in criminal defense.