Advising clients at the police station - Procedures for carrying out identification

Learning Outcomes

This article explains the requirements and procedures for conducting identification procedures involving suspects detained at the police station. After reading this article, you will understand when an identification procedure must be held, the different types available (video identification, identification parade, group identification, confrontation), the key procedural safeguards under PACE Code D, the rights afforded to suspects during these procedures, and the role of the legal adviser in ensuring fairness and compliance. This knowledge is essential for advising clients effectively at the police station.

SQE1 Syllabus

For SQE1, you must understand the practical application of PACE Code D concerning identification procedures. Your revision should focus on:

  • 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 potential consequences of breaches of Code D for the admissibility of identification 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. 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.

There are exceptions to this rule. An identification procedure is not required if it is not practicable, or if it would serve no useful purpose. For example, if the suspect admits being at the scene and their account matches the witness's observation, or if the suspect is already well-known to the witness who claims to recognise them, a formal procedure may be deemed unnecessary.

However, even if not strictly mandatory, an identification officer may still decide to hold a procedure if they believe it would be useful in the circumstances (Code D, para 3.13).

TYPES OF IDENTIFICATION PROCEDURE

PACE Code D outlines four main types of formal identification procedures. The police must usually offer video identification first.

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 images must show the suspect and others under similar conditions. If the suspect has distinctive features (eg, tattoos, scars), these must be concealed or replicated on the other images. The suspect and their solicitor have the right to view the set of images beforehand and raise reasonable objections. The procedure is conducted by an identification officer, and the suspect's solicitor may be present when the witness views the images.

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 suspect can choose their position in the line-up and may object to the composition of the parade if it is unfair. The witness views the line-up (usually through a one-way screen) and is asked if they can identify the person they saw. As with video identification, strict rules apply regarding the conduct of the parade and the separation of witnesses.

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).

This can be done with or without the suspect's consent. The location must be such that other people present are broadly similar in appearance to the suspect, ensuring the suspect does not stand out unfairly.

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 only used when other methods (video, parade, group) are impracticable. The suspect's solicitor should normally be present.

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.
  • 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).
  • First Description: The witness's first description of the perpetrator must be recorded and provided to the suspect or their solicitor before the procedure.
  • Witness Separation: Witnesses must be kept separate before and during the procedure and must not be allowed to communicate.
  • Warning to Witness: Witnesses must be told that the person they saw may or may not be present in the images/parade/group.
  • Record Keeping: A detailed record (often including video/photographs) must be kept of the procedure, including any objections raised.

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.
  • View the video images or inspect the arrangements for a parade/group identification.
  • Advise the client on whether to consent (usually advisable, as refusal can lead to adverse inferences or less favourable procedures).
  • 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).

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.
  • Object immediately to the identification officer if any irregularities occur (eg, police officer prompting the witness).
  • Keep a detailed note of the procedure and any objections raised.

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.

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.

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.
  • Suspects have the right to legal advice and for their solicitor to be present.
  • Refusal to cooperate can lead to adverse inferences or less favourable procedures.
  • Solicitors play a key role in advising clients and ensuring procedural fairness.
  • Significant breaches of Code D can 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
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