Advising clients at the police station - Procedures for carr...

Learning Outcomes

This article explains the requirements and procedures for conducting identification procedures involving suspects detained at the police station. It sets out when the police must arrange an identification procedure under PACE Code D, the types of procedure available (video identification, identification parade, group identification, confrontation), and the key safeguards designed to reduce the risk of mistaken identification. It also details the suspect’s rights (including the right to legal advice, disclosure of the witness’s first description, and the right to be accompanied where applicable), the formal role of the identification officer, and how a legal adviser should prepare for, attend, and challenge unfairness. Finally, it addresses the consequences of breaches of Code D, how visual identification evidence is tested in court (including Turnbull guidance), and when it may be excluded under s 78 PACE.

SQE1 Syllabus

For SQE1, you are required to understand the practical application of PACE Code D concerning identification procedures, with a focus on the following syllabus points:

• The circumstances necessitating an identification procedure (PACE Code D, para 3.12).
• The different types of formal identification procedures permitted under Code D.
• The key procedural requirements for conducting video identifications, identification parades, group identifications, and confrontations.
• The rights of suspects subject to identification procedures, including the right to legal advice.
• The role and duties of the identification officer.
• The requirement to record and disclose the witness’s first description before any procedure.
• Rules around witness separation and warnings, and handling distinctive features on images or parades.
• Special provisions for juveniles and vulnerable suspects (consent and appropriate adult involvement).
• Use of street identifications and the need for a subsequent formal procedure.
• The potential consequences of breaches of Code D for the admissibility of identification evidence, including s 78 PACE and the Turnbull guidance.
• Practical steps a solicitor should take to object to unfairness and preserve a challenge.

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. Under PACE Code D, when must an identification procedure generally be held?
   1. Whenever a suspect is arrested for any offence.
   2. Only when a witness positively identifies a suspect at the scene.
   3. When a witness claims they can identify a suspect, or there's a reasonable chance they can, and the suspect disputes being the person seen.
   4. Only if the suspect consents to the procedure.
2. Which identification procedure is generally preferred and offered first under PACE Code D?
   1. Identification parade
   2. Group identification
   3. Video identification
   4. Confrontation
3. How many other individuals (foils) should normally be included alongside the suspect in a video identification procedure?
   1. At least 5
   2. At least 8
   3. Exactly 10
   4. At least 12

4. True or false? A suspect can be compelled to participate in an identification parade against their will.

Introduction

When the police detain a suspect, part of the investigation may involve attempting to confirm their identity as the person responsible for an offence. Eyewitness identification evidence can be persuasive but is also notoriously unreliable. Therefore, strict procedures, governed primarily by the Police and Criminal Evidence Act 1984 (PACE) Code D, must be followed when the police seek to test a witness's ability to identify a suspect. As a legal adviser, you must understand these procedures to protect your client's rights and ensure any identification evidence obtained is fair and admissible.

WHEN AN IDENTIFICATION PROCEDURE MUST BE HELD

PACE Code D, paragraph 3.12, sets out the key circumstances when the police must hold an identification procedure. This requirement arises when:

• an eyewitness has identified a suspect or says they might be able to identify them, OR there is a reasonable chance the witness could identify the suspect; AND
• the suspect disputes being the person the witness claims to have seen committing the offence.

Key Term: Identification Procedure
A formal method used by police, governed by PACE Code D, to see if an eyewitness can identify a person suspected of involvement in an offence.

Where practicable, the procedure should be arranged as soon as possible. There are exceptions. An identification procedure is not required if it would be impracticable, or if it would serve no useful purpose. Examples include:

• where the suspect admits being at the scene and their account does not contradict what the witness saw; or
• where it is not disputed that the suspect is already known to the witness and the witness’s recognition (rather than identification) is the issue.

Even where a procedure is not strictly mandatory, an identification officer may still decide to arrange one if it would assist the investigation (Code D, para 3.13).

Street identification (“show-up”) may occur when the suspect’s identity is unknown and the witness is taken promptly to the vicinity of the offence to see if they can recognise the perpetrator. If this leads to an arrest and the suspect disputes being the offender, a formal identification procedure must then be carried out to test reliability under controlled conditions.

Key Term: Known and Available
A suspect is ‘known’ when the police have sufficient information to justify the person’s arrest for a specified offence. A suspect is ‘available’ if they are immediately, or within a reasonably short period, willing to take part in an identification procedure. If a suspect refuses, they are treated as known but not available, and the police may proceed with a covert procedure.

TYPES OF IDENTIFICATION PROCEDURE

PACE Code D outlines four main types of formal identification procedures. The police must usually offer video identification first, unless it is not practicable or less suitable than other methods in the circumstances.

Video Identification

This is the most common method used.

Key Term: Video Identification
A procedure where a witness is shown moving images of a known suspect along with images of at least eight other people who resemble the suspect.

The set must include the suspect and at least eight others of similar age, height, general appearance, and position in life (Annex A, para 2). If two suspects of similar appearance are shown in the same set, there must be at least 12 others. All images must present the individuals under identical conditions and performing similar movements. Where a suspect has distinctive features (eg, tattoos, scars, unusual hair), these should be either concealed or replicated on other images to avoid the suspect standing out (Annex A, para 2A).

The suspect (or their solicitor) must be given a reasonable opportunity to view the full set of images beforehand and raise reasonable objections to composition (Annex A, para 7). Witnesses must view the images at least twice and be warned that the person they saw may or may not be present. Witnesses must be kept separate and prevented from communication throughout the process. The identification officer should provide reasonable notice to the suspect’s solicitor of the time and place, and the procedure should be recorded with a detailed written note.

Identification Parades

This involves a physical line-up.

Key Term: Identification Parade
A procedure where the suspect stands in a line with at least eight other people who resemble them in appearance.

The parade must consist of at least eight others similar to the suspect’s age, height, general appearance, and position in life (Annex B, para 9). Distinctive features should be concealed or replicated across participants (Annex B, para 10). The suspect chooses their position in the line and may change positions between witnesses. Witnesses are warned that the suspect may or may not be present and should inspect each member at least twice before deciding. Witnesses must be separated and prevented from seeing the suspect before or after the parade or from communicating with other witnesses. The parade must be photographed or video-recorded in colour (Annex B, para 23).

Group Identification

This method involves observing the suspect within an informal group.

Key Term: Group Identification
A procedure where a witness attempts to identify a suspect within a group of people in a public place (eg, a shopping centre, train station).

Group identification may be conducted with or without the suspect’s consent, including covertly if the suspect refuses or is not available (Annex C, para 2). The chosen location should be one where the suspect can be seen amongst others whose appearance is broadly similar, so that the suspect does not unfairly stand out (Annex C, para 6). A colour photograph or video should be taken immediately after any identification to record the circumstances and composition of the group.

Confrontation

This is a method of last resort due to its inherently suggestive nature.

Key Term: Confrontation
A procedure where a witness is shown the suspect alone and asked if they are the person they saw commit the offence.

Confrontation is used only when other methods (video, parade, group) are impracticable. Witnesses must be told the suspect may or may not be present, and the suspect must not be restrained during the identification (Annex D). The suspect’s solicitor or friend should usually be present unless this would cause unreasonable delay.

PROCEDURAL SAFEGUARDS AND SUSPECT'S RIGHTS

Code D mandates several safeguards to ensure fairness:

• Identification Officer: An officer of at least Inspector rank, independent of the investigation, must supervise the procedure (Code D, para 3.11). They are responsible for compliance with Code D and for preparing a proper record of the procedure.

Key Term: Identification Officer
An officer not below the rank of Inspector, not involved in the case investigation, who oversees the identification procedure and ensures compliance with Code D.

• Information for Suspect: Before any procedure, the suspect must be informed of its purpose, the process, their right to free legal advice, their right to have a solicitor/friend present (unless impracticable), and the consequences of refusing to cooperate (Code D, para 3.17). If the suspect changes their appearance after notification and before the procedure, this may affect the conduct of the procedure and be raised at trial.

• First Description: The officer must record the witness’s first description of the perpetrator at the earliest opportunity. A copy must be provided to the suspect or their solicitor before any identification procedure, so the defence can assess consistency and fairness.

Key Term: First Description
The initial description of the offender given by a witness, recorded by police and disclosed to the suspect/solicitor before any identification procedure. It is an important benchmark for assessing reliability and fairness.

• Witness Separation: Witnesses must be kept separate before and during the procedure, prevented from speaking to each other or learning whether other witnesses have identified anyone.

• Warnings to Witnesses: Witnesses must be told that the person they saw may or may not be present. In video identification, they should be instructed to look at every image at least twice before deciding. In parades, they should inspect each member at least twice before deciding.

• Distinctive Features: If the suspect has distinctive features, steps must be taken to conceal them or replicate them on other participants/images, so that the suspect does not stand out unfairly.

• Record Keeping: A detailed record must be kept of the procedure (including time, composition, instructions, objections raised and how they were addressed). For parades and group identifications, colour photographs or video should be taken to capture the setup.

Special provisions: juveniles and vulnerable suspects

Additional consent requirements apply under Code D (para 2.12) where procedures require consent:

• For juveniles aged 14 or over, consent must be obtained both from the juvenile and from a parent/guardian.
• For juveniles under 14, consent must be obtained from a parent/guardian (rather than the juvenile).
• For suspects with a mental health condition or mental disorder, consent should be given in the presence of the appropriate adult.

An appropriate adult should normally attend to support and facilitate communication where the suspect is a juvenile or vulnerable person.

THE ROLE OF THE SOLICITOR

Your role as a legal adviser during identification procedures is essential for protecting your client's rights.

Before the Procedure:

• Obtain the witness's first description of the suspect from the police and compare it to your client’s actual appearance.
• Confirm which form of identification is proposed and whether video identification has been considered first, in line with Code D.
• View the video images or inspect the arrangements for a parade/group identification. Assess similarity of foils/participants and whether any distinctive features have been properly handled.
• Advise the client on whether to consent (usually advisable, as refusal can lead to covert procedures and may be raised at trial).
• Raise reasonable objections to the identification officer regarding the images, participants, or procedure if they appear unfair (eg, foils do not resemble the suspect, distinctive features not addressed, investigating officer present, witnesses not properly segregated).
• Request postponement if fairness cannot be remedied immediately, ensuring your objections are recorded.

Worked Example 1.1

Your client, arrested for robbery, has a prominent facial tattoo. The police propose a video identification. What advice should you give regarding the tattoo?

Answer:
You should advise the police (specifically the identification officer) that the tattoo is a distinctive feature. Under Code D, Annex A, para 2A, they must either find at least eight other foils with similar tattoos (highly unlikely) or take steps to conceal the tattoo on the image of your client and all other foils, for example, by pixelation or masking. You should view the final set of images to ensure this has been done fairly before the witness views them.

During the Procedure:

• Attend the procedure (or the viewing if video ID) to observe compliance with Code D.
• Ensure witnesses are properly segregated and warned.
• Confirm the suspect has had access to legal advice and is permitted a solicitor/friend to be present.
• Object immediately to the identification officer if any irregularities occur (eg, investigating officer present, witness reminded of their previous description, or foils inadequate).
• Keep a detailed note of the procedure (timings, warnings given, objections raised and responses).
• Request copies of any parade photographs/video or the video identification record.

Worked Example 1.2

During an identification parade, you notice the identification officer reminding the witness of the description they previously gave. What should you do?

Answer:
You should immediately intervene and object to the identification officer. Reminding the witness of their previous description is a breach of Code D (Annex B, para 14(c)) as it could unduly influence their identification. You should ask the officer to stop this immediately and ensure your objection and the officer's conduct are fully recorded in the parade's official record. This breach could form grounds to challenge the admissibility of the identification evidence later at trial under s 78 PACE 1984.

Worked Example 1.3

Your client refuses to take part in a video identification and says they “won’t stand in any parade either.” The investigating officer suggests a covert group identification at the client’s workplace. How should you advise?

Answer:
If the suspect refuses to participate, they are treated as known but not available, and the police may lawfully arrange a covert group identification (Annex C). Advise your client that refusal can prompt less controlled procedures (group ID or confrontation) and may be raised at trial. You should ask the identification officer to select a location where others present are broadly similar in appearance, to avoid unfairness, and request that a colour photograph/video be taken immediately after any identification. Ensure your objections and proposals are recorded.

Worked Example 1.4

A witness recognised your client in a street “show-up” shortly after the offence. The police propose to rely on that recognition only. What should you insist upon?

Answer:
Recognition in a street “show-up” is not a substitute for a formal identification procedure. Where practicable, a formal procedure should be held as soon as possible to test the witness’s ability to identify under controlled conditions. You should insist on a video identification (preferred method) unless impracticable. Obtain and review the witness’s first description and ensure Code D safeguards (warnings, separation, foils/participants) are observed.

Worked Example 1.5

Your client is 15 years old. The police propose a video identification and ask the client to consent. What additional steps are required?

Answer:
For juveniles aged 14 or over, consent must be obtained both from the juvenile and from a parent/guardian (Code D, para 2.12). An appropriate adult should normally attend, and you should ensure the juvenile understands the process, the warnings given to witnesses, and the implications of refusing. Confirm that the juvenile’s parent/guardian consents or, if unavailable, that proper steps are taken to satisfy Code D requirements.

CONSEQUENCES OF BREACHES

Significant and substantial breaches of PACE Code D can lead to the exclusion of the identification evidence at trial. The defence can make an application under s 78 PACE 1984, arguing that admitting the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it. Breaches include, for example:

• failure to hold a formal procedure when Code D requires one (eg, after street identification, where identity is disputed);
• failure to provide the witness’s first description in advance of the procedure;
• failure to use at least eight similar foils in video identification or parade;
• failure to conceal or replicate distinctive features;
• failure to keep witnesses separate or allowing communication;
• the investigating officer taking part in the procedure;
• prompting or reminding witnesses of their previous description; and
• failing to warn witnesses that the suspect may or may not be present.

Courts also assess the quality of visual identification evidence using the Turnbull guidelines. Where a case wholly or substantially depends on disputed visual identification, the judge must consider factors affecting reliability (eg, duration of observation, distance, lighting, obstructions, whether the person was known to the witness, and consistency with the first description). If the identification is poor and unsupported by other evidence, the judge should withdraw the case from the jury and direct acquittal. If admitted, the judge must give a special cautionary direction to the jury about the risk of mistaken identification.

Exam Warning

Be alert to scenarios describing identification procedures. Identify any potential breaches of Code D (eg, insufficient foils, distinctive features not handled correctly, improper communication with witnesses). Consider the impact of these breaches on the potential admissibility of the evidence under s 78 PACE.

Key Point Checklist

This article has covered the following key knowledge points:

• PACE Code D governs police identification procedures.
• An identification procedure is mandatory when identity is disputed and a witness may be able to identify the suspect, unless impracticable or pointless.
• The main types are video identification (preferred), identification parade, group identification, and confrontation (last resort).
• Strict procedural safeguards apply, overseen by an independent identification officer who is at least Inspector rank and not involved in the investigation.
• Witnesses must be warned that the suspect may or may not be present and must be kept separate before and during the procedure.
• The witness’s first description must be recorded early and disclosed to the suspect/solicitor before any procedure.
• Distinctive features on a suspect must be concealed or replicated across foils or parade participants.
• Suspects have the right to legal advice and for their solicitor/friend to be present (unless impracticable).
• Refusal to cooperate can lead to covert procedures and refusal may be raised at trial.
• Street identification should be followed by a formal identification procedure to test reliability.
• Special consent rules apply to juveniles and vulnerable suspects, and appropriate adults should be involved where required.
• Significant breaches of Code D can lead to exclusion of identification evidence under s 78 PACE 1984, or a Turnbull warning/withdrawal where evidence is poor.

Key Terms and Concepts

• Identification Procedure
• Video Identification
• Identification Parade
• Group Identification
• Confrontation
• Identification Officer
• First Description
• Known and Available