Advising clients at the police station - When identification...

Learning Outcomes

This article outlines when Code D identification procedures must be held, key exceptions, procedure types, safeguards, and the legal adviser’s role and actions at the police station, including:

• Precise Code D circumstances requiring an identification procedure and the distinction between “must” and “may” situations
• Situations where a procedure serves no useful purpose or is not practicable
• The four recognised procedures—video, parade, group, confrontation—suitability criteria and core fairness safeguards
• Code D Annex A–D requirements in practice (number and similarity of foils, treatment of unusual features, segregation of witnesses)
• Strategic advice on consent and refusal, consequences of refusal (covert procedures and adverse comment), and client tactics
• Vulnerabilities of juveniles and mentally disordered suspects, including consent and appropriate adult requirements under Code D
• The initial description rule (Code D 3.1), reliability testing, challenges to composition or conduct, and preservation of objections for any s 78 PACE application
• Links between police-station advice and trial consequences, including Turnbull directions, where poor-quality or irregular identification is central to the case

SQE1 Syllabus

For SQE1, you are required to understand identification procedures under PACE 1984 and Code D, with a focus on the following syllabus points:

• the legal triggers for holding an identification procedure under PACE 1984 and Code D
• the main types of identification procedures and their key features
• the exceptions to the requirement to hold a procedure
• the legal adviser's role in advising and protecting the client's rights during identification procedures
• the consequences of refusing to participate and the impact on evidence admissibility

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 what circumstances must the police hold an identification procedure for a suspect?
2. What are the four main types of identification procedures recognised by PACE Code D?
3. Name two situations where an identification procedure is not required, even if a witness claims to recognise the suspect.
4. What is the legal adviser's role when a client is asked to participate in an identification procedure?

Introduction

When a client is arrested or attends the police station as a suspect, identification evidence can be decisive. The law sets strict rules for when police must hold an identification procedure, how it must be conducted, and how legal advisers should protect the client's rights. For SQE1, you must know the triggers for holding a procedure, the main types, the exceptions, and the adviser's duties.

Key Term: identification procedure
A formal process in which a witness is asked to identify a suspect from a group of people or images, following strict rules to ensure fairness.

Key Term: PACE Code D
The Code of Practice under the Police and Criminal Evidence Act 1984 governing identification procedures and related safeguards for suspects.

When Must an Identification Procedure Be Held?

PACE 1984 Code D sets out when police are required to arrange an identification procedure. The main trigger is when there is a dispute about whether the suspect is the person seen by a witness during the commission of the offence.

Police must hold an identification procedure as soon as practicable if:

• a witness claims to have identified or can identify a suspect, and
• the suspect disputes being the person seen, or
• there is a reasonable chance a witness could identify the suspect.

This applies whether or not the suspect is under arrest or in custody. It applies equally where a witness has purported to identify the suspect informally, for example in the street; a formal procedure should then be held to test reliability.

Key Term: known and available
A suspect is ‘known’ where police have sufficient information to justify arrest for a particular offence; ‘available’ where they are immediately or within a reasonably short period willing to take part in an identification procedure.

Worked Example 1.1

Scenario:
A witness to a robbery tells police she could identify the robber if she saw him again. The police arrest a suspect who denies involvement.

Answer:
The police must arrange an identification procedure as soon as practicable, as there is a witness who claims she can identify the suspect and the suspect disputes being the person seen.

The “must hold” obligation (Code D para 3.12) is separate from the broader discretion to hold a procedure even where not strictly required (para 3.13). Where the para 3.12 conditions are met, a procedure must be held unless a recognised exception applies.

Exceptions: When a Procedure Is Not Required

There are important exceptions where an identification procedure is not needed, even if a witness claims to recognise the suspect. These include:

• where it is not practicable to hold a procedure (e.g., critical witness is unavailable for a prolonged period and no alternative can be arranged)
• where the suspect's identity is not in dispute (e.g., the suspect admits being present and the witness’s account of presence matches)
• where the witness already knows the suspect well (e.g., regular association over time), such that a procedure would serve no useful purpose

Key Term: known to the witness
A situation where the witness is already familiar with the suspect, making a formal identification procedure unnecessary.

Key Term: not practicable
Circumstances where it is impossible or unreasonable to arrange a formal identification procedure, such as lack of available witnesses or urgent operational reasons.

If the witness only vaguely “knows” the suspect (e.g., distant acquaintance years earlier), a formal procedure is generally still required to test reliability. For example, recognition from a school years earlier—particularly if the suspect disputes being “known”—usually calls for a procedure.

Worked Example 1.2

Scenario:
A shop assistant is assaulted by her ex-partner, whom she has known for years. The ex-partner is arrested and denies the assault.

Answer:
No identification procedure is required. The witness already knows the suspect well, so a formal procedure would serve no useful purpose.

A separate recurrent issue is the “street identification”. If a witness points out a suspect on the street some time after the incident, a formal procedure should still be held afterwards to test the reliability of that spontaneous identification and to preserve fairness safeguards.

Types of Identification Procedures

PACE Code D recognises four main types of identification procedures:

1. Video Identification:
   The witness views a video containing the suspect and at least eight others of similar appearance. If two suspects of roughly similar appearance are shown together, at least 12 others must be included.
2. Identification Parade:
   The suspect stands in a line with at least eight others who resemble them. The witness views the line, usually through a screen. The witness must be told the offender may or may not be present and is asked to look at each person at least twice.
3. Group Identification:
   The witness observes the suspect in a group of people in a public place. The location must allow, over the period of observation, viewing of a number of others whose appearance is broadly similar.
4. Confrontation:
   The witness is brought face-to-face with the suspect, used only when other procedures are impracticable. It should ordinarily occur in the presence of the suspect’s solicitor or friend unless that would cause unreasonable delay.

Key Term: video identification
A procedure where a witness is shown moving or still images of the suspect and others of similar appearance to test their ability to identify the suspect.

Key Term: identification parade
A live lineup in which the suspect stands with others of similar appearance for the witness to view.

Key Term: group identification
A procedure where the suspect is seen by the witness among a group of people in an informal setting, such as a shopping centre.

Key Term: confrontation
A direct meeting between the witness and the suspect, used only as a last resort when other procedures are not possible.

A suspect should ordinarily be offered a video identification first (Code D para 3.14). Parades may be preferred where, for example, video is not practicable or a live parade is more suitable. Group identifications may be arranged where a video or parade is not practicable or refused. If the suspect is “known but not available” (e.g., refuses to take part), the police may arrange a covert procedure (e.g., covert video, covert group).

Key Term: identification officer
An independent officer (not below inspector, in uniform) unconnected with the investigation who organises and oversees the identification procedure and ensures compliance with Code D.

Worked Example 1.3

Scenario:
Police arrest a suspect who refuses to take part in a video identification or parade. The witness is available and willing to attend.

Answer:
The police may arrange a group identification or, if that is not practicable, a confrontation. The suspect's refusal can be mentioned in court and may allow the police to use alternative procedures.

Worked Example 1.4

Scenario:
A witness says she recognised the burglar from social media images posted by friends. The suspect denies involvement. No formal procedure has yet been held.

Answer:
The police should arrange a Code D identification procedure to test the witness’s ability to recognise the suspect under controlled conditions. If the police fail to do so, the defence may challenge the fairness and reliability at trial; while the judge may leave the identification to the jury with appropriate warnings, a properly conducted procedure is the safer course.

The Legal Adviser's Role

Legal advisers have a critical function in protecting the client's rights during identification procedures. Their main duties include:

• advising the client on whether to participate and explaining the consequences of refusal (such as adverse inferences or the use of alternative/covert methods)
• ensuring the procedure is conducted fairly and in accordance with Code D (including independence of the identification officer)
• checking that the images or lineup members are sufficiently similar to the client, and that any unusual features are addressed by concealment or replication across foils
• ensuring the witness and client do not see each other before the procedure, and that witnesses are segregated from each other throughout
• making sure any objections or irregularities are recorded in the formal record and on the custody record where relevant
• attending the procedure to observe and, where necessary, to request remedial steps (e.g., changing foils, seating to equalise height)
• obtaining the initial description recorded by police under Code D 3.1 and using it tactically to test the reliability of the witness and the lineup composition

Key Term: adverse inference
A negative conclusion that may be drawn by the court if a suspect refuses to participate in an identification procedure without good reason.

Key Term: Turnbull direction
Judicial guidance to a jury on the special need for caution with disputed identification evidence, focusing on the quality of the original sighting and any supporting evidence.

Solicitors should always request and review the first description given by the witness before any procedure (Code D 3.1). Material disparities between the first description and the client’s actual appearance can be powerful in advice and at trial. Where Code D has been significantly breached in arranging or conducting a procedure (e.g., inadequate foils, presence of the investigating officer, witness contamination), the defence should consider an application to exclude the identification evidence under s 78 PACE.

Exam Warning

If a client refuses to participate in an identification procedure without a valid reason, the court may allow the police to use alternative methods and may permit the prosecution to comment on the refusal at trial.

Consequences of Refusing to Participate

If a suspect refuses to take part in an identification procedure, the police may:

• use alternative procedures (e.g., group identification or confrontation), including covert procedures if the suspect is known but not available
• adduce the refusal as part of the evidence at trial and invite the court to draw adverse comment
• seek to obtain and use images covertly for a video identification

Legal advisers should warn clients that refusal can have negative consequences and should only be advised if there is a clear legal or tactical reason (e.g., the witness claims to know the suspect well and a formal procedure would serve no purpose; or the foils offered are plainly unfair and cannot be remedied promptly).

Worked Example 1.5

Scenario:
Your client is 15. Police propose a video identification the same afternoon. The client consents; no parent is present.

Answer:
For a juvenile aged 14–17, consent must be obtained from both the juvenile and their parent/guardian. The adviser should require parental consent before any procedure proceeds. If the client were under 14, only the parent/guardian’s consent would be valid. For a mentally disordered suspect, consent must be given in the presence of an appropriate adult.

Practical Safeguards and Common Pitfalls

Legal advisers should always:

• check that the procedure is conducted by an independent officer not involved in the investigation
• ensure the initial description given by the witness is disclosed and compared to the client's appearance
• confirm that witnesses are kept apart and do not discuss the case before or after the procedure
• object if the lineup or images are not sufficiently similar to the client (age, height, general appearance and position in life)
• ensure any unusual features (tattoos, scars, distinctive hair) are concealed or replicated across all foils
• ensure witness instructions are properly given (the suspect may or may not be present; look at each member at least twice; no communication)
• note that, for two suspects of similar appearance shown together on video, at least 12 other people must be included

Worked Example 1.6

Scenario:
Two brothers of similar appearance are shown together in a video identification with only 10 other images. The investigating officer runs the procedure.

Answer:
The procedure is non-compliant. Where two similar-looking suspects are shown together, at least 12 other images must be included. Further, the investigating officer must not conduct the procedure; an independent identification officer not involved in the investigation must do so. The defence should challenge the procedure and consider an application under s 78 PACE.

Fairness errors and their trial impact:

• Significant breaches of Code D (e.g., inadequate foils, witness contamination, investigating officer’s involvement) can justify exclusion under s 78 PACE because admission would adversely affect fairness.
• Even if admitted, poor-quality identification evidence will trigger a Turnbull direction. Where the case depends wholly or substantially on poor-quality identification and there is no support, the judge should stop the case at the end of the prosecution evidence.

Revision Tip
Always ask for the initial witness description and compare it to your client's appearance. If there are significant differences, raise this before the procedure.

Additional Conduct Requirements by Procedure

• Video identification (Annex A): suspect image plus at least eight foils (12 if two suspects shown), similarity across images, equal conditions/movements, suspect/solicitor able to preview, and reasonable objections remedied if practicable.
• Identification parade (Annex B): at least eight foils, suspect chooses position, witnesses told suspect may or may not be present and to view each member at least twice, requests for speech/movement handled only after appearance-based viewing.
• Group identification (Annex C): location must permit viewing of the suspect among others of broadly similar appearance; may be conducted covertly where consent is refused or suspect is not available.
• Confrontation (Annex D): true last resort; ordinarily in the presence of the suspect’s solicitor, interpreter or friend unless that would cause unreasonable delay.

Ancillary Issues: Photographs and Street Identifications

• Photographs (Annex E): at least 12 images must be shown at a time. Once a witness makes a positive photographic identification, no other witnesses should be shown the photographs; instead, they should be invited to attend a formal Code D procedure. In any later trial, the witness should not give evidence of having first identified the suspect from police-shown photographs.
• Street identifications: where an ad hoc identification occurs, a formal procedure should subsequently be arranged to test reliability in controlled conditions.

These steps safeguard against contamination and ensure an evidential basis that can withstand s 78 challenges and Turnbull scrutiny at trial.

Summary

Key Point Checklist

This article has covered the following key knowledge points:

• Code D 3.12: police must hold an identification procedure where there is a witness able to identify and the suspect disputes identity, unless not practicable or serving no useful purpose
• A procedure is not needed where identity is not in dispute or the witness genuinely knows the suspect well; vague or historic familiarity usually needs testing
• Four procedures: video, parade, group, confrontation; video is usual starting point; confrontation is a last resort
• Safeguards include independent identification officer, adequate similarity across foils, management of unusual features, and strict segregation of witnesses
• Refusal to participate may permit covert alternatives and adverse comment at trial
• The initial description (Code D 3.1) must be obtained and compared to the suspect; it is a key reliability check and advocacy tool
• Significant breaches of Code D can result in exclusion under s 78 PACE; otherwise, Turnbull directions are essential where identification is disputed
• Special protections apply for juveniles and vulnerable suspects: consent rules and the involvement of an appropriate adult
• Where two similar suspects are shown together, at least 12 other foils must be included; the investigating officer must never run the procedure

Key Terms and Concepts

• identification procedure
• PACE Code D
• known to the witness
• not practicable
• known and available
• identification officer
• video identification
• identification parade
• group identification
• confrontation
• adverse inference
• Turnbull direction