Advising clients at the police station - Identification proc...

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.

A practical understanding must extend to recognising when identity is genuinely in issue, distinguishing recognition cases that still require a formal procedure from those that would serve no useful purpose, and knowing the hierarchy of procedures and why video identification is preferred. You should be able to advise on the mechanics and safeguards of each method, the mandatory information that must be provided to the suspect in advance (including the first description given by a witness), and how to make and record reasonable objections. You must also be able to evaluate consequences of refusal or non-cooperation, advise vulnerable suspects and juveniles where additional consent rules apply, and assess the evidential consequences of breaches, including challenges under s.78 PACE and the interface with Turnbull guidance on disputed visual identification evidence at trial.

SQE1 Syllabus

For SQE1, you are required to understand identification procedures under PACE Code D, including when they are mandatory, the available types of procedure, suspects’ rights, and the implications of procedural breaches, with a focus on the following syllabus points:

• 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 default preference for video identification and when other procedures may be more suitable (Code D, paras 3.14–3.16).
• The suspect’s rights and entitlements, including to free legal advice, advance information, and a right to object to arrangements (Code D, paras 3.1, 3.17; Annexes A–D).
• The “first description” requirement and disclosure to the suspect/solicitor before the procedure (Code D, para 3.1; Annex E).
• The role and independence of the identification officer (Code D, para 3.11) and the solicitor’s oversight role.
• The consequences of refusal or changing appearance, including potential adverse inferences and recourse to covert or alternative procedures.
• Additional safeguards for juveniles and vulnerable suspects, including consent rules and the presence of an appropriate adult (Code D, para 2.12).
• Potential consequences of breaches of Code D, including exclusion of evidence under s.78 PACE, and how Turnbull guidance shapes the use of identification evidence at trial.

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.

The Code’s safeguards aim to test a witness’s ability to identify the suspect in controlled conditions and to minimise the risk of mistaken identification. Code D requires the police to keep and disclose the first description of the suspect provided by a witness, to deploy an independent identification officer to run the procedure “as soon as practicable,” and to select the method that is practicable and fair, defaulting to video identification unless specified exceptions apply. Formal procedures are distinct from initial investigative steps when a suspect is unknown (for example, taking a witness to the scene to see if they recognise the perpetrator locally): once a suspect is identified and disputes identity, a Code D procedure should follow so the reliability of that identification can be tested.

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.

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.

Where a witness has not yet taken part in a Code D procedure and claims ability to identify the offender, identity is in issue if the suspect disputes it. That includes many recognition cases. The duty is mandatory unless an exception applies.

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.

In recognition scenarios, the distinction between “known” and “well-known” is important. If a witness asserts prior knowledge but the suspect disputes that familiarity (for example, they attended the same school years earlier or knew each other only vaguely), a procedure will often still be required to test reliability. Courts have underlined that long gaps in time or weak acquaintance can undermine recognition and favour holding a procedure. Conversely, where prior familiarity is accepted and recent (for instance, gym acquaintances seen frequently), a formal procedure may serve no useful purpose because the witness will inevitably pick out the suspect.

Police may also hold a procedure in exceptional circumstances even when not strictly required, where the officer in charge of the investigation, after consulting the identification officer, considers it useful (Code D, para 3.13). In all cases, once the decision is taken, the procedure must be arranged as soon as practicable.

Where a suspect’s identity is unknown, officers may take the witness to the relevant area to see whether the suspect can be identified locally. If a suspect is identified in this way and then disputes identity, a formal procedure should follow to test the reliability of that street identification. Where a suspect is known but not immediately available for a controlled procedure, the identification officer may consider a covert identification method without the suspect’s consent (for example, a covert video identification using existing imagery), or a group identification or confrontation where appropriate.

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. If two similar suspects are included in the same set, there must be at least 12 other images.
• Distinguishing features: Any unique features of the suspect (e.g., scars, tattoos, distinctive hair) must be concealed or replicated on the other images. Concealment or replication can be done electronically.
• Viewing: The witness views the images at least twice and is told the person they saw may not be among the images. Playbacks may be paused or replayed. Only one witness views the set at a time, and witnesses must be segregated and prevented from seeing the images or discussing the case before viewing.
• Fairness and independence: The investigating officers must not influence the process. The identification officer, independent of the investigation, must oversee the procedure and ensure compliance with Code D.
• Recording: A full record must be kept. Negative identifications (no pick) and positive identifications must both be recorded.
• 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 to observe the process, though they must not communicate with the witness.

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.

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. Where replication is not feasible, appropriate concealment (e.g., a plaster for a scar or a hat for distinctive hair) should be used.
• Suspect's choice: The suspect can choose their position in the line and may change positions between witnesses. The order of participants (other than the suspect’s chosen position) should otherwise remain controlled by the identification officer.
• Witness procedure: Witnesses view the parade individually. They must be told the person they saw may not be present and to inspect each member at least twice before deciding. If a witness asks for a participant to speak, move, or adopt a posture, they should first be asked if they can identify by appearance alone; only then may reasonable speaking or movement requests be accommodated.
• Separation and contamination: Witnesses must be kept separate from each other, the suspect, and the parade before and after viewing, and must not be shown photographs or reminded of descriptions immediately before viewing.
• Recording: A colour photograph or video of the parade must be taken. A formal written record should capture any comments made by witnesses, objections raised, and the outcome.

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.

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 and covert use: Can take place with or without the suspect's consent. If the suspect refuses, a covert group identification may be arranged by choosing a location and time where the suspect is likely to be present among others.
• Location and similarity: The chosen place should allow the suspect to be seen among others whose appearance is broadly similar, such as people moving on an escalator, arriving at work, or waiting in a busy area.
• Practicality: There is no requirement to line up a set of foils, but the identification officer should select conditions where broadly similar persons are likely to be seen during the observation period.
• Recording: A photograph or video should be taken immediately after any identification or purported identification, and a full written record compiled.

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.

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 and should say so if they are not sure.
• Fairness: The suspect should not be restrained or presented in a suggestive way (e.g., avoid handcuffs where practicable and ensure neutral presentation).
• Presence of solicitor: The suspect’s solicitor or friend should normally be present unless this would cause unreasonable delay. A careful record must be made of the confrontation and any statements.
• Rarity: This method is uncommon and typically used where the suspect refuses to participate in other procedures or is not available for them.

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). If the suspect requests legal advice, arrangements must allow sufficient time for private consultation, and the identification officer should not proceed in a way that defeats this entitlement unless justified by Code C exceptions. The right can be exercised at any time, and the suspect should be reminded of it when appropriate.

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). This “first description” should be recorded at the earliest opportunity by the police and disclosed before the procedure so that any discrepancies between that description and the suspect’s true appearance can be assessed and, if necessary, raised later at trial. A written notice reflecting the explanation and key information should be provided to the suspect.

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). Objections should be recorded, and if not addressed, the defence should ensure the record captures the objection and the reasons for proceeding notwithstanding it. For parades, creative solutions (e.g., seating all participants if height is an issue, or using hats if hair is distinctive) may be appropriate. For video procedures, replacement images may be required.

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 about why the suspect declined to participate.
• The police may proceed with a covert video identification (if images are available) or group identification, or use confrontation.
• A refusal can cause the suspect to be treated as “known but not available,” justifying identification without their cooperation.
• If the suspect changes appearance after being notified of a forthcoming procedure (e.g., shaving a beard, dyeing hair), this may prompt concealment/replication measures and may be raised at trial as affecting fairness and weight.

Vulnerable Suspects and Juveniles

Additional consent requirements apply where a procedure requires consent:

• For a juvenile aged 14 or over, consent must be obtained from both the juvenile and a parent or guardian.
• For a juvenile under 14, consent must be obtained from a parent or guardian.
• For a suspect with a mental health condition or disorder, consent must be given in the presence of an appropriate adult.

An appropriate adult should attend the procedure for juveniles and vulnerable suspects to facilitate communication and ensure fairness. The same principles of segregation, warnings, and recorded objections apply, with particular care to avoid suggestibility.

Street Identifications and Photographs

When identity is unknown, officers may undertake a neighbourhood search with a witness. If a suspect is identified during such a search and later disputes identity, a formal Code D procedure must be held to test reliability. If photographs are used during the investigation:

• At least 12 images should be shown at a time.
• Once a witness makes a positive identification, no further witnesses should be shown photographs.
• The defence must be notified if an attending witness has previously been shown photographs or composite images.
• A witness should not tell the jury that they initially picked the suspect from photographs supplied by police; the trial focus will be on the formal procedure and subsequent identification evidence.

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.

Worked Example 1.3

Sasha is notified of a forthcoming identification parade. Before the date, Sasha shaves off a distinctive beard and cuts their long hair short. The identification officer proposes to have all participants wear similar scarves and hats to conceal facial and hair differences.

Can this approach be adopted and what advice should the solicitor give?

Answer:
Yes. Code D allows concealment or replication of distinguishing features to ensure fairness. The solicitor should agree to neutral concealment applied consistently to all participants, record that Sasha changed appearance after notification (which may be raised at trial), and confirm that the arrangements are applied even-handedly. If concealment cannot achieve parity, the solicitor should consider objecting and requesting postponement until similarity can be achieved.

Worked Example 1.4

Two brothers of similar appearance are both suspects in the same incident. The identification officer proposes a single video identification, including images of both brothers and eight other foils.

Is this compliant with Code D?

Answer:
No. Where two similar suspects appear in the same video set, Code D requires at least 12 other images in addition to the suspects. The solicitor should object and request that the set contain the minimum number of foils or that separate procedures be arranged.

Worked Example 1.5

Priya refuses to participate in a video identification, stating she does not trust the police to select fair foils. The investigating officer indicates they will proceed with a group identification outside Priya’s workplace at closing time.

What are the implications and what should the solicitor advise?

Answer:
Refusal allows the police to proceed with alternative procedures, including a group identification without consent. This may be less controlled and potentially more prejudicial because Priya could be seen among fewer people resembling her. The refusal can be led in evidence and adverse inferences may be drawn. The solicitor should explain these risks and consider advising Priya to reconsider, or, if proceeding, ensure the identification officer chooses a location and timing likely to present broadly similar individuals and records the procedure in full.

Worked Example 1.6

A witness told police they could identify the assailant. The suspect disputes identity. The police do not arrange any formal identification procedure, relying instead on CCTV stills and the witness’s statement.

What should the defence do?

Answer:
The defence should make representations that a formal Code D procedure must be held as soon as practicable because identity is disputed and the witness claims they can identify the offender. Failure to hold one may be a significant breach of Code D, para 3.12. If the case proceeds without a procedure, the defence can apply under s.78 PACE to exclude the identification evidence and argue for appropriate Turnbull safeguards at trial.

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.

Typical breaches that may warrant exclusion include:

• Failure to hold a procedure when mandatory (identity disputed and a witness can identify the offender).
• Inadequate resemblance among foils or failure to conceal/replicate distinguishing features.
• Lack of proper segregation of witnesses or exposure to the suspect before viewing.
• Failure to provide the first description to the suspect/solicitor before the procedure.
• Investigating officers improperly influencing or conducting the procedure, undermining independence.

Where a court admits identification evidence despite breaches, the judge must still direct the jury (or magistrates must direct themselves) to the dangers of mistaken identification and examine the quality of the original observation in accordance with Turnbull guidance. The quality assessment considers factors such as duration, distance, lighting, obstructions, prior familiarity, elapsed time, and discrepancies between the first description and the defendant’s actual appearance. If the identification evidence is poor and unsupported by other evidence, the case may be withdrawn from the jury; if supported, a strong warning is required. If good quality, a standard direction emphasising caution remains necessary.

Courts have, on occasion, allowed convictions where identification occurred in less controlled circumstances (for example, recognition from social media), but such cases emphasise the need for careful directions about the limitations and risks of non-Code D identification. Even where evidence is admitted, breaches can substantially reduce weight and increase the prospect of reasonable doubt.

A refusal by a suspect to take part in a procedure is admissible and may permit adverse inferences; however, the weight to be attached is fact-sensitive. If the police adopt a covert or alternative procedure in response to refusal, the court will scrutinise whether the alternative was conducted fairly and in compliance with the relevant Annex.

Finally, dock identifications at trial (first-time identifications in court) are generally discouraged because they are inherently suggestive. Where no prior formal procedure was held despite the Code requiring one, a judge may refuse to allow a dock identification or, if one occurs, will warn strongly against attaching weight to it.

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. Be ready to spot breaches that might ground an application to exclude evidence under s.78 PACE and to apply Turnbull guidance to the quality of any identification evidence that is admitted.

Key Point Checklist

This article has covered the following key knowledge points:

• Formal identification procedures are governed by PACE Code D and must be conducted “as soon as practicable” by an independent identification officer (Inspector or above).
• 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 (not practicable or no useful purpose).
• Recognition cases may still require a procedure unless prior knowledge is undisputed and recent enough to make a procedure purposeless.
• Where identity is initially unknown, street identifications may be used to locate a suspect, but a formal procedure should follow if identity is disputed.
• The main types of procedure are video identification (preferred), identification parade, group identification, and confrontation (last resort), with video identification the default unless another is more suitable or practicable.
• Video identification requires the suspect plus at least eight similar foils; if two similar suspects appear, at least 12 foils are required. The witness must be told the suspect may not be present and must view the set at least twice.
• For parades, the suspect may choose their position; witnesses must be segregated; and movement/voice requests require caution. A colour photograph or video record is required.
• Group identifications may be overt or covert; the location should allow the suspect to be seen among broadly similar persons; and a contemporaneous record (photo/video) should be made after any identification.
• For confrontations, a solicitor or friend should normally be present; the suspect should not be presented suggestively; and the witness must be warned appropriately.
• Suspects have key rights, including the right to legal advice, advance information about the procedure, the first description, and the ability to make reasonable objections to arrangements.
• Refusal to cooperate can be led in evidence and may permit adverse inferences; the police may resort to covert video identification, group identification, or confrontation.
• Special consent rules and safeguards apply to juveniles and vulnerable suspects (appropriate adult; consent rules under Code D, para 2.12).
• First descriptions must be recorded early and disclosed before the procedure; discrepancies may influence the Turnbull assessment at trial.
• Significant breaches of Code D may lead to the exclusion of identification evidence under s.78 PACE 1984; if admitted, courts apply Turnbull guidance to evaluate its reliability.

Key Terms and Concepts

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