Advising clients at the police station - Types of identification procedures

Learning Outcomes

This article outlines the main procedures used by the police to identify suspects, as governed by Code D of the Police and Criminal Evidence Act 1984 (PACE). For the SQE1 assessments, you need to understand when these procedures are required, the key rules governing each type (video identification, identification parades, group identification, and confrontation), the suspect's rights during these procedures, and the potential consequences of breaches. This knowledge will help you advise clients detained at the police station and identify challenges to identification evidence in SQE1 scenarios.

SQE1 Syllabus

For SQE1, you must understand the practical application of PACE Code D relating to eyewitness identification procedures. This includes advising clients on their rights and the implications of participating or refusing to participate. Focus your revision on:

  • The circumstances requiring an identification procedure to be held.
  • The main types of identification procedures: video identification, identification parade, group identification, and confrontation.
  • The key safeguards and rules governing the conduct of these procedures under PACE Code D.
  • The rights of the suspect during identification procedures, including the right to legal advice.
  • The potential consequences of breaches of Code D, including the exclusion of evidence under PACE 1984, s 78.

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, which identification procedure is generally preferred and must be offered first, assuming it is practicable?
    1. Group identification
    2. Confrontation
    3. Identification parade
    4. Video identification
  2. A witness identifies a suspect known to them from school five years ago, but the suspect disputes this recognition. Must an identification procedure be held?
    1. No, because the witness claims to know the suspect.
    2. Yes, because the suspect disputes the identification and being known to the witness.
    3. No, because five years is too long for a reliable recognition.
    4. Yes, but only if the suspect consents.
  3. Which of the following is NOT a right of a suspect during a formal identification parade?
    1. To have a solicitor present.
    2. To choose their own position in the line-up.
    3. To object to other members of the parade if they do not resemble the suspect.
    4. To demand the procedure be video recorded instead.
  4. If the police breach PACE Code D significantly when conducting an identification procedure, what is the likely legal basis for challenging the admissibility of the identification evidence at trial?
    1. PACE 1984, s 76 (Confessions)
    2. PACE 1984, s 78 (Exclusion of unfair evidence)
    3. Hearsay rules
    4. Bad character rules

Introduction

When the police have arrested a suspect following an allegation of a criminal offence, establishing the identity of the perpetrator is often an essential part of the investigation. If the suspect denies involvement and disputes identification by an eyewitness, the police may be required to conduct a formal identification procedure. These procedures are strictly regulated by Code D of the Police and Criminal Evidence Act 1984 (PACE) to ensure fairness to the suspect and reliability of the evidence obtained. Understanding these procedures is essential for advising clients detained at the police station.

When an Identification Procedure Must Be Held

PACE Code D, paragraph 3.12 sets out the circumstances when the police must hold an identification procedure. This requirement arises if a suspect disputes being the person an eyewitness claims to have seen committing the offence, and the eyewitness has either identified the suspect previously, purported to identify them, or believes they could identify them if given the opportunity.

Key Term: Known Suspect A suspect whose identity and name are known to the police and who is available to participate in an identification procedure.

An identification procedure is not required if it would serve no useful purpose. Code D gives examples, such as when the suspect admits being at the scene and their account matches the witness's observation, or when it is undisputed that the suspect is well-known to the witness who claims to recognise them.

Key Term: Identification Officer An officer, usually an inspector or above, not involved in the investigation, responsible for conducting and supervising the identification procedure according to Code D rules.

Types of Identification Procedure

PACE Code D outlines four main types of formal identification procedure. The police must first consider video identification.

Video Identification (VIPER)

This is the preferred method under Code D.

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

Key safeguards under Code D, Annex A include:

  • Composition: Foils must resemble the suspect in age, general appearance, and position in life. Any distinctive features (e.g., scars, tattoos) should be concealed or replicated on all images. If two suspects of similar appearance are shown, at least 12 foils must be used.
  • Viewing: The witness views the images sequentially, at least twice. They must be told the person they saw may or may not be present.
  • Solicitor Access: The suspect's solicitor must be given a reasonable opportunity to view the images beforehand and raise objections. The solicitor may also attend the viewing.

Identification Parade

This is a more traditional method, used if video identification is not practicable or suitable.

Key Term: Identification Parade A procedure where the suspect stands in a line with at least eight other individuals (foils) who resemble them.

Key safeguards under Code D, Annex B include:

  • Composition: Foils must resemble the suspect (age, height, appearance, etc.). Distinctive features should be concealed or replicated.
  • Suspect's Rights: The suspect can choose their position in the line and have a solicitor or friend present.
  • Conduct: Witnesses view the parade one at a time and are told the person they saw may or may not be present. They must look at each person twice before identifying anyone. The parade must be photographed or video recorded.

Group Identification

This involves the witness observing the suspect within an informal group of people in a public place.

Key Term: Group Identification A procedure where a witness attempts to identify a suspect within an informal group in a location like a train station or shopping centre.

Key safeguards under Code D, Annex C include:

  • Location Suitability: The location should be one where the suspect might normally be found, or where there are sufficient other people broadly resembling the suspect.
  • Conduct: It can be done with or without the suspect's consent (covertly). The witness must be carefully managed to avoid contact with the suspect or other witnesses. The identification must be recorded (e.g., photograph, video) immediately after.

Confrontation

This is a method of last resort, used only when other methods are impracticable.

Key Term: Confrontation A procedure where the witness is brought face-to-face with the suspect, usually at the police station.

Key safeguards under Code D, Annex D include:

  • Necessity: Must only be used if video ID, parade, and group ID are all impracticable.
  • Conduct: The witness must be told the person they saw may or may not be the suspect. The suspect's solicitor or friend should normally be present. The confrontation must be carefully recorded.
  • High Risk: This method is inherently suggestive and carries a high risk of misidentification.

Suspect's Rights and Solicitor's Role

A suspect involved in an identification procedure has several key rights under PACE Code D:

  • Notification: To be informed about the procedure, its purpose, and the process.
  • Legal Advice: To receive free, independent legal advice before consenting to or participating in a procedure.
  • Solicitor/Friend Presence: To have a solicitor or friend present during a parade, group identification (if consented), or confrontation. For video ID, the solicitor can view the images beforehand and attend the witness viewing.
  • Objections: To raise reasonable objections regarding the composition of the video images or parade, or the arrangements for the procedure.
  • Refusal: To refuse to participate in a video ID or parade (though this carries consequences).

Advising the Client

A solicitor's role is essential:

  1. Explain: Ensure the client understands the procedure, their rights, and the potential consequences of participation or refusal.
  2. Advise on Consent: Generally, advise consenting to a video ID or parade if the client maintains innocence, as refusal can lead to adverse inferences or less satisfactory procedures (like covert group ID or confrontation). If the client admits guilt but denies this offence, the advice might be different.
  3. Check Compliance: Before and during the procedure, meticulously check compliance with Code D (e.g., foil similarity, witness segregation, proper warnings).
  4. Raise Objections: Formally object to the identification officer about any breaches or unfairness. Ensure objections are recorded.
  5. Record Keeping: Keep a detailed note of the entire procedure, including timings, participants, instructions given, objections raised, and the outcome.

Worked Example 1.1

A witness briefly saw a person commit a theft and described them as tall with blond hair. The police arrest David, who is short with dark hair. David denies the offence. The police propose a video identification procedure using images of David and eight foils who match David's appearance (short, dark hair). David's solicitor objects, stating the foils don't match the witness's original description.

Should the identification officer uphold the solicitor's objection?

Answer: No. The purpose of the procedure is to test the witness's ability to identify the suspect they saw commit the crime from a set of similar-looking individuals. The foils must resemble the suspect, not the initial description given by the witness, to ensure fairness and prevent the suspect from standing out unduly. The identification officer should proceed, ensuring the objection is recorded.

Exam Warning

Do not confuse the purpose of foils in identification procedures. Foils must resemble the suspect, not necessarily the description given by the witness. A common exam mistake is to assume the procedure is flawed if foils don't match the initial description.

Revision Tip

Familiarise yourself with the Annexes to PACE Code D, which detail the specific procedures for each identification method. Pay attention to the numbers (e.g., number of foils required) and the specific instructions that must be given to witnesses.

Consequences of Breaching Code D

Significant and substantial breaches of PACE Code D can lead to the exclusion of identification evidence at trial.

Key Term: Exclusion of Evidence (s 78 PACE) A court has the discretion under s 78 of PACE 1984 to exclude prosecution evidence if its admission would have such an adverse effect on the fairness of the proceedings that it ought not to be admitted. This is often argued where police have breached PACE Codes significantly.

If identification evidence is obtained following serious breaches of Code D, the defence may argue that admitting it would be unfair under s 78. The court will consider the nature and extent of the breaches in deciding whether to exclude the evidence.

Furthermore, a suspect's refusal to participate in a video identification or parade may be commented on at trial, potentially leading to an adverse inference being drawn, suggesting the refusal stemmed from a fear of being identified.

Worked Example 1.2

Police arrange an identification parade for a robbery suspect, Ahmed. Ahmed's solicitor is present. Witness A views the parade and identifies foil number 3. Witness B then views the same parade but before doing so, overhears Witness A telling a police officer "It was definitely number 3". Witness B then identifies Ahmed (number 7). Ahmed's solicitor noted the breach of witness segregation rules.

Can the identification evidence from Witness B be challenged?

Answer: Yes. There has been a significant breach of Code D, Annex B, para 14, which requires witnesses to be kept separate and prevented from communicating. Witness B's identification is potentially contaminated by overhearing Witness A. The defence solicitor should apply to exclude Witness B's identification evidence under s 78 PACE 1984, arguing its admission would be unfair due to the procedural breach potentially influencing Witness B.

Key Point Checklist

This article has covered the following key knowledge points:

  • Formal identification procedures under PACE Code D are required when a suspect disputes identification by an eyewitness.
  • The main types are video identification (preferred), identification parade, group identification, and confrontation (last resort).
  • Each procedure has specific rules in Code D (Annexes A-D) regarding composition, conduct, and safeguards.
  • Suspects have rights, including the right to legal advice, to have a solicitor/friend present (in most procedures), and to object to arrangements.
  • Refusal to participate in a video ID or parade can lead to adverse inferences or less satisfactory procedures being used.
  • Significant breaches of Code D may lead to the exclusion of identification evidence under s 78 PACE 1984.
  • The role of the defence solicitor is essential in advising the client and ensuring procedural fairness.

Key Terms and Concepts

  • Known Suspect
  • Identification Officer
  • Video Identification
  • Identification Parade
  • Group Identification
  • Confrontation
  • Exclusion of Evidence (s 78 PACE)
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