Principles and procedures to admit and exclude evidence - Vi...

Learning Outcomes

This article examines visual identification evidence in criminal trials, including:

• Legal risks and evidential weight of visual identification evidence, why it is inherently problematic, and how courts seek to minimise miscarriages of justice
• Triggers for the Turnbull guidelines, the judicial directions required when a case turns on identification, and circumstances in which the judge must stop the case
• Code D police identification procedures—video identification, identification parade, group identification, and confrontation—the conditions under which each is used, and typical exam traps
• Consequences of breaches of identification procedures, unreliability of evidence, exclusion under PACE 1984, s 78, and relevant common law discretion
• Recognition evidence, its distinction from identification of a stranger, and circumstances requiring a full or modified Turnbull direction
• Dock identification, reasons for judicial disapproval, necessary judicial warnings or steps, and when such evidence may exceptionally be allowed
• Application of these principles to fact patterns, including assessment of the strengths and weaknesses of identification evidence, supporting evidence, need for corroboration, and risks of collusion or contamination between witnesses
• Procedural remedies and strategic decisions in criminal litigation involving visual identification evidence, including defence challenges to admissibility and submissions of no case to answer

SQE1 Syllabus

For SQE1, you are required to understand visual identification evidence in criminal trials, including the Turnbull guidelines, Code D procedures, and exclusion under PACE s 78, with a focus on the following syllabus points:

• Evaluate the reliability, admissibility, and evidential risks of visual identification evidence in criminal trials
• Set out the dangers associated with visual identification and the necessity for safeguards due to the risk of miscarriage of justice
• Apply and explain the Turnbull guidelines, including the requirement and content of a Turnbull direction, and circumstances in which the trial judge must withdraw a case from the jury due to identification evidence
• Examine the specific Code D identification procedures within PACE 1984 – including video identification, identification parade, group identification, confrontation – and their correct application
• Recognise the grounds for exclusion of evidence under s 78 Police and Criminal Evidence Act 1984, especially for unfairness, and understand the link between procedural breaches and the fairness of admitting evidence
• Assess the evidential status, risks, and judicial approach to dock identification and recognition evidence, and know how a practitioner should handle breaches or unreliable evidence
• Appreciate the importance and requirements for supporting evidence when identification is weak
• Analyse the implications of collusion or contamination among multiple identification witnesses
• Link all evidential issues to the fundamental principles of a fair trial and the right of the defence to challenge unreliable or prejudicial 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. What are the main factors a judge must direct the jury to consider under the Turnbull guidelines when a case depends on visual identification evidence?
2. Name the four main types of identification procedure under Code D of PACE 1984.
3. In what circumstances may a court exclude identification evidence under s78 PACE 1984?
4. What is the difference between recognition evidence and identification of a stranger, and how does this affect the Turnbull warning?

Introduction

Visual identification evidence occurs when a witness claims to identify a suspect or defendant as the perpetrator of a crime based on their observation. This type of evidence—whether from an eyewitness to the crime or a witness who recognises the accused—is both common and dangerous. The risk stems from the well-documented fact that honest but mistaken identification is a significant cause of wrongful convictions. The dangers are especially acute in cases involving fleeting glimpses, poor lighting, stressful conditions, or the passage of time between the observation and later identification procedures.

Key Term: visual identification evidence
Evidence where a witness claims to identify the defendant as the perpetrator of an offence based on their observation at the scene, or an identification procedure where the witness is asked to identify a suspect.

A key principle in criminal trials is that the court should take every possible safeguard to prevent wrongful convictions arising from erroneous identification, particularly when such evidence is unreliable or the only evidence against the defendant.

The Dangers of Visual Identification Evidence

Mistaken visual identification is a primary cause of miscarriage of justice. Psychologists and the courts have long recognised that perception and memory are fragile, especially under stress, poor viewing conditions, or when there is a significant interval between observation and identification. Even honest and confident witnesses can be genuinely mistaken but wholly wrong.

The risk is not limited to the identification of complete strangers: errors can (and do) occur in cases of alleged recognition, especially where someone is seen only in passing, or after changes to appearance. Compounding the problem, visual identification evidence is often compelling and persuasive to a jury, even when objectively weak. As such, the law insists on warning juries in nearly all cases where identification evidence is genuinely in issue.

Police Identification Procedures: Code D

Code D of the Police and Criminal Evidence Act (PACE) 1984 governs police identification procedures. Its primary aim is to regulate how the police test a witness’s ability to identify a suspect and to introduce procedural safeguards against mistaken identification. Police officers must take care that such procedures, and any identification evidence obtained, are as fair as possible and compliant with the Code.

The four principal identification procedures under Code D are:

• Video identification: The preferred modern method. The witness is shown a video compilation featuring the suspect and at least eight others of broadly similar appearance. The images should all be shown under similar conditions. The witness must be told the suspect may or may not be present. The defence should be given advance notice and opportunity to object to chosen images if they do not fairly resemble the suspect.

• Identification parade: Sometimes called a "lineup", the suspect stands physically in a line with at least eight other people of similar age, build, and general appearance. The suspect can choose their position in the line, and may change positions between witnesses.

• Group identification: The suspect joins an informal group in a public or controlled area and the witness tries to pick out the suspect from that group. It may be used openly, with the suspect’s consent, or covertly if they refuse consent, such as taking the witness to a public place where the suspect is present among others of generally similar appearance.

• Confrontation: Used only as a last resort. The suspect is presented directly to the witness in a face-to-face meeting, typically when other identification procedures cannot be arranged or have been refused. The suspect is placed before the witness, and the witness is told the suspect may or may not be the person.

Key Term: Code D identification procedure
A formal process under PACE 1984 for testing a witness’s ability to identify a suspect, including video identification, identification parade, group identification, and confrontation.

Code D sets additional rules to preserve the integrity of these procedures. For example, different witnesses must not communicate before the identification, and the procedures must be conducted by an independent 'identification officer' not involved in the investigation. If a witness claims to know or recognise the accused, or has previously been shown photographs or photofits, particular rules apply (see below).

Breaches of Code D can severely undermine the reliability of any identification evidence obtained, and may result in the evidence being excluded or belittled at trial.

Detailed Requirements for Identification Procedures

For each type of identification procedure, Code D provides safeguards such as:

• The initial description given by the witness must be recorded in detail and disclosed to the defence before any formal identification.
• The suspect must be informed in writing of the procedure, the rights involved (including the right to legal advice and to have a solicitor present), and the consequences of refusal.
• At least eight other people/images must be selected who so far as possible resemble the suspect in general appearance, age, and position in life.
• All procedures must be documented thoroughly, and reasons provided if a particular method is impracticable.
• If a suspect refuses to participate, the police may use covert alternatives or confront the suspect directly with the witness, and the suspect’s refusal can be mentioned in evidence.

Worked Example 1.1

The police arrange a video identification but only select images of others who are dissimilar in age and appearance to the suspect. The suspect’s solicitor objects, but the police proceed anyway. The witness identifies the suspect.

Answer:
This is a clear breach of Code D, specifically the requirement that images of others must closely resemble the suspect. Such a breach goes to the fairness and reliability of the evidence. The defence should consider applying to exclude the identification evidence under s78 PACE due to the substantial and significant breach.

The Turnbull Guidelines

The seminal case on safeguards for identification evidence in criminal trials is R v Turnbull [1977] QB 224. The Court of Appeal set out guidance (the Turnbull guidelines) for cases where the issue of identification is central. Where a case depends wholly or substantially on visual identification, and the defence disputes identity, the trial judge must follow these guidelines.

Key Term: Turnbull guidelines
Judicial directions that require the jury to exercise special caution before convicting on identification evidence alone, and to consider specific factors affecting reliability.

What Must the Judge Do?

When identification is genuinely disputed, and the case depends on identification evidence, the judge must:

• Warn the jury of the special need for caution before convicting on identification evidence alone.
• Explain that a mistaken witness can be a convincing one and that several honest witnesses can all be genuinely mistaken.
• Direct the jury to carefully scrutinise the circumstances in which the identification was made.

Where the evidence is poor and unsupported, the judge must consider withdrawing the case from the jury.

Key Factors for the Jury

The judge must direct the jury to consider all the circumstances affecting the reliability of the identification, including:

• The length of time the witness observed the suspect;
• The distance between witness and suspect;
• The level and quality of lighting and visibility;
• Whether viewing conditions were impeded or disrupted (for example, by weather, movement, or obstructions);
• Whether the defendant was known to the witness beforehand or was a stranger;
• The time elapsed between observation and subsequent identification procedure;
• Discrepancies between the original description and the actual appearance of the suspect;
• The overall opportunity to observe the suspect;
• The presence or absence of stress or pressure at the relevant time.

Where more than one witness identifies, the judge must address whether their observations were truly independent, or whether contamination or collusion may have occurred.

If the identification is particularly poor—such as a fleeting glance from a distance, or under poor lighting—the judge must highlight these weaknesses and instruct the jury that it is dangerous to convict on such evidence alone unless there is supporting material.

Judicial Discretion to Withdraw the Case

The judge must consider whether the identification evidence is sufficiently reliable to be left to the jury at all. If the evidence is of poor quality, and there is no supporting evidence capable of confirming the correctness of the identification, the judge should withdraw the case from the jury and direct an acquittal.

Worked Example 1.2

A witness states they observed the defendant for only 3 seconds on a dark street, 30 metres away. The police held a group identification several weeks later; there is no other evidence.

Answer:
This is a classic case of weak and unsupported identification evidence. The judge would need to consider whether the jury could safely convict on such material. Under Turnbull, the judge should likely withdraw the case from the jury at the close of the prosecution case.

Supporting Evidence

Supporting or corroborating evidence refers to independent material that tends to confirm the correctness of an identification. Good supporting evidence can include forensic linkage (blood/fingerprints at the scene), possession of stolen property soon after the offence, or admissible admissions. The judge must make it clear to the jury what, if any, supporting evidence is relied upon and the weight it may bear.

Importantly, supporting evidence must genuinely connect the defendant to the commission of the offence and not merely to other activities or circumstances. If the only evidence directly linking the defendant to the offence is the disputed identification, and that evidence is weak, an acquittal should follow absent reliable support.

Key Term: supporting evidence
Independent evidence which, if accepted, tends to confirm the accuracy of the identification made by a witness.

Exclusion of Identification Evidence: PACE s78

Section 78 of the Police and Criminal Evidence Act 1984 empowers the court to exclude any evidence upon which the prosecution proposes to rely if its admission would have such an adverse effect on the fairness of proceedings that it ought not to be admitted.

Key Term: s78 PACE 1984
A statutory provision allowing the court to exclude prosecution evidence—including identification evidence—if admission would make the trial unfair.

A breach of the rules governing identification procedures, particularly a significant or substantial breach of Code D (such as failing to ensure appropriate similarity among selected images, failing to take a first description, or conducting an identification in a coercive or suggestive manner), may provide grounds for exclusion under s78 PACE. The court’s focus will be on whether the breach undermined the reliability and fairness of the evidence. Minor or technical breaches will not suffice, but a pattern or a serious error can support exclusion.

The judge also has a residual common law discretion to exclude evidence where its prejudicial effect exceeds its probative value, but under current law, s78 is the principal route.

Worked Example 1.3

The police show a witness only a single photograph of the suspect—no formal Code D identification procedure is arranged. The witness identifies the suspect in court.

Answer:
This is a serious breach. The defence should object and seek exclusion under s78 PACE. Even if the judge allows the evidence, the court must strongly warn the jury of the dangers and treat the identification with great caution.

The Relationship Between Identification, Actus Reus, and Mens Rea

In offences where identity is a key element—such as theft, robbery, or assault—the prosecution must prove “actus reus” (the guilty act) and “mens rea” (the guilty mind). Visual identification serves as evidence as to actus reus, but its reliability is significant. If an honest but mistaken identification is the only evidence of actus reus, and it is flawed, the court must be vigilant before allowing a conviction. For example, in an assault or a robbery, the prosecution’s case might stand or fall on a single witness’s identification. If this is unclear, equivocal, or contaminated by suggestive procedures, the offender’s guilt cannot be established to the high criminal standard required.

Recognition Evidence and Dock Identification

Courts often treat recognition evidence—where a witness claims to recognise the accused on the basis of prior acquaintance—as stronger than the identification of a stranger, but Turnbull warnings still apply. Even in recognition cases, human memory is not infallible, especially in stressful or rapidly evolving situations or when the suspect’s appearance has changed.

Key Term: recognition evidence
Evidence where a witness claims to identify the defendant as someone they know, rather than as a stranger.

Dock identification arises when a witness points out the defendant for the first time in the dock during trial. Courts view such identifications as especially dangerous because they occur in suggestive circumstances and are rarely reliable. Except in unusual situations (such as where no identification procedure was possible and there was otherwise no prejudice), dock identification should not be permitted; if it is, the judge must sternly warn the jury about the serious risks involved.

Key Term: dock identification
An identification made by a witness in court, almost always for the first time, when the defendant is sitting in the dock.

Where a witness claims to recognise the accused, but there is limited prior relationship or the circumstances are marginal, the court must be very careful; even partial recognition is vulnerable to mistake. In all but the most obvious cases, an identification procedure should be held even for a claim of recognition, especially if the defendant disputes being known to the witness.

Exam Warning

Dock identification is strongly disfavoured in English law due to its suggestive nature. The Court of Appeal has described dock identifications as "undesirable" and only in rare cases should the prosecutor seek to elicit such identification. If this occurs, the judge must warn the jury in the strongest terms and may even exclude the evidence if it would be prejudicial to fairness.

Worked Example 1.4

A witness states in court, for the first time, that they recognise the defendant in the dock as the burglar they saw six months earlier. The defendant was not known to the witness previously; no identification procedure had been arranged.

Answer:
This constitutes a dock identification, which is highly suggestive and unreliable. The judge should warn the jury to give this evidence very little or no weight, and ideally, such identification evidence should not have been put before the jury at all. The defence could request exclusion and/or a direction to acquit for want of reliable evidence.

Multiple Witnesses, Collusion and Contamination

When more than one witness identifies the defendant, some additional safeguards are needed. The evidence may appear stronger because more than one person makes the same identification. However, there is a risk of collusion or contamination: witnesses may have discussed the event, viewed the suspect together, or been influenced by others. The independence of observations is critical—judges must consider whether the identifications were truly independent, and address any suggestion of the witnesses discussing amongst themselves before identification.

A judge should also take care to consider how the circumstances and the procedure affect the risk of mistake, as bias, group pressure, and misinformation can distort later identifications.

When is a Turnbull Direction Not Required?

Not every case in which the defendant’s identity is in issue requires a Turnbull direction. If, for example, a defendant admits to being present at the scene or known to the witness, but disputes other facts of the case, the Turnbull safeguards may not be needed. However, if the defendant’s presence or involvement is genuinely disputed, and the prosecution relies, even substantially, on purported identification, the judge should always consider the guidance.

A mere description of a suspect’s physical features by a witness is not enough to engage Turnbull; there must be some direct identification evidence.

Consequences of Poor Identification Evidence

Where identification evidence is weak and unsupported by any other evidence, the judge should take the decision away from the jury and direct an acquittal. Conversely, where identification evidence is good or supported, a Turnbull warning should still be provided, tailored specifically to the content and circumstances.

Practical Steps for Defence Solicitors

Defence solicitors must be alert to improper identification procedures and challenge breaches of Code D by:

• Seeking exclusion of tainted evidence under s78 PACE
• Demanding copies of initial witness descriptions and the full details of the identification process
• Questioning the independence and reliability of each witness
• Ensuring the court is fully aware of any contamination or procedural unfairness

Summary

• The dangers of visual identification require judicial caution.
• Code D sets out strict procedures; significant breaches can be fatal to prosecution evidence.
• Turnbull guidance governs judicial directions to the jury.
• Supporting evidence is needed if identification evidence is weak.
• Dock identification is unreliable and generally not permitted except in rare, justifiable circumstances.
• Recognition evidence requires Turnbull warnings too.
• The prosecution must always discharge the burden of proof, and the defence should make submissions of no case to answer where only identification evidence is weak or improperly obtained.

Key Point Checklist

This article has covered the following key knowledge points:

• Visual identification evidence is inherently unreliable and requires close judicial scrutiny.
• The Turnbull guidelines demand that judges warn juries about the risks of mistaken identification and direct them to relevant factors.
• Code D of PACE 1984 prescribes strict police procedures for identification evidence; significant breaches may make evidence inadmissible.
• Section 78 PACE 1984 provides the court with discretion to exclude identification evidence where admission would render the trial unfair.
• It is dangerous to convict on identification evidence alone without proper supporting material.
• Dock identification is discouraged and generally unreliable, and where allowed is subject to the strongest warnings.
• Recognition evidence is not immune to mistake and requires the same judicial approach as stranger identification.
• Multiple witnesses must be assessed for collusion or contamination before their identifications can be relied upon.

Key Terms and Concepts

• visual identification evidence
• Code D identification procedure
• Turnbull guidelines
• supporting evidence
• s78 PACE 1984
• recognition evidence
• dock identification