Advising clients at the police station - Identification proc...

Learning Outcomes

This article explains the operation of identification procedures under PACE Code D in the police station context, covering:

• When an identification procedure is mandatory or appropriate, the “known and available” test, and the requirement to arrange procedures as soon as practicable
• The four recognised procedures (video identification, identification parade, group identification and confrontation), their order of preference, and when each may properly be used
• Notice requirements and suspects’ rights, including access to legal advice, disclosure of the initial witness description, and the presence of friends or appropriate adults
• How consent and refusal impact the conduct of procedures, the risk of adverse inferences, and the use of covert or alternative identification methods
• The respective roles and responsibilities of the identification officer and defence solicitor in planning, attending, monitoring and recording identification procedures
• Special protections for juveniles and vulnerable suspects, including consent rules, communication needs and additional safeguards during the procedure
• Strategies for identifying and challenging Code D breaches, seeking exclusion under PACE s 78, and deploying Turnbull guidance to undermine unreliable identification evidence at trial

SQE2 Syllabus

For SQE2, you are required to understand identification procedures in the police station context, linking Code D compliance to admissibility and fairness issues, with a focus on the following syllabus points:

• When the police must, or may, conduct an identification procedure under Code D (including “as soon as practicable” and exceptions)
• The four procedure types, their default order of preference, and key Annex requirements (Annexes A–D)
• Suspect rights: written notice, initial witness description, legal advice, solicitor/friend attendance, and implications of refusal/consent
• Status distinctions: known and available; known but not available; suspect not known (including photographs and street identifications)
• Special protections for juveniles and vulnerable persons (appropriate adult and consent under Code D), and adaptations for understanding
• Practical steps for legal representatives: attending, objecting to composition, ensuring segregation of witnesses, and preserving objections on record
• Challenging identification evidence: Code D breaches and PACE s 78 fairness; interaction with Turnbull directions where identification is disputed

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. In what circumstances must the police conduct an identification procedure for a suspect under PACE Code D?
2. List the four main types of identification procedure recognised under Code D.
3. What rights should a suspect be informed of before a Code D identification procedure, and what are the implications if they refuse consent?
4. What is the role of an appropriate adult during identification procedures for a vulnerable suspect?

Introduction

Identification evidence is central to many police investigations, especially when the identity of the suspect is disputed or in doubt. Police must follow strict guidance in PACE Code D to ensure fairness and reduce the risk of mistaken identification. As a legal advisor at the police station, you must know the key tests for when a Code D identification procedure is required, advise clients knowledgeably on their rights, and help prevent unfair outcomes.

Key Term: identification procedure
A regulated process under PACE Code D where a suspect is presented to a witness for the purpose of discovering whether the witness can identify them as the person they saw commit the offence.

Key Term: identification officer
An officer, independent from the case investigation, of at least inspector rank, who organises and supervises the identification procedure and ensures Code D requirements are followed.

Key Term: video identification
A method where the witness is shown images of the suspect alongside others of similar appearance, typically via digital means.

Key Term: identification parade
A live lineup where the suspect joins a group of others of similar appearance for a witness to attempt an identification.

Key Term: group identification
A process where the suspect is observed among a group in a natural or arranged public location for potential recognition by a witness.

Key Term: confrontation
A direct, face-to-face meeting arranged by police between the witness and the suspect when other regulated identification methods are impractical.

Key Term: appropriate adult
A responsible person present to safeguard the interests and understanding of a juvenile or vulnerable suspect during identification procedures (and other police processes).

When must an identification procedure be held?

PACE Code D prescribes identification procedures when:

• An eyewitness claims to be able to identify a suspect, or there is a reasonable chance a witness can do so; and
• The suspect disputes being the person seen committing the offence; and
• The witness has not previously been given an opportunity to identify the suspect in an approved way

Where those conditions exist, an identification procedure must be held as soon as practicable unless it is not practicable to arrange or would serve no useful purpose in proving or disproving involvement. Code D also allows a procedure to be held where the officer in charge of the investigation, after consulting the identification officer, considers there are exceptional circumstances that justify one.

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

Exceptions

No procedure is needed if:

• The suspect is known to the witness and recognition is not in dispute
• The suspect admits being present and the witness does not contradict this
• It would serve no useful purpose for the proof or defence of involvement

Case law illustrates these limits. If the suspect genuinely disputes being known to the witness—such as recognition tied only to a distant school acquaintance—an identification procedure is typically required to test reliability. By contrast, if both parties accept that the witness knows the suspect well, and recognition is undisputed after a prolonged encounter, a formal procedure will usually be pointless.

Types of identification procedure

There are four principal types for suspects who are known and available:

• Video identification: The default method—witnesses view moving or still images of the suspect and 'foils' (others of broadly similar appearance).
• Identification parade: The suspect stands in a line of people of similar appearance and the witness is asked to indicate if they recognise anyone.
• Group identification: The witness observes the suspect in a casual group of people in a public place or arranged setting.
• Confrontation: As a last resort—witness is directly confronted with the suspect, often where other procedures are impractical.

Video identification is preferred because it can often be arranged more quickly than a live parade and allows standardised conditions. Identification parades remain appropriate where a parade is practicable and more suitable (for example, due to witness factors), while group identification can be selected where the investigating officer considers it more suitable and the identification officer agrees it is practicable. Confrontation is very rare, reserved for situations where other procedures are not feasible.

Suspect status: known and available vs. not available

• Known and available: Standard procedures above apply, with video identification usually offered first.
• Known but not available: Police may use alternative or covert procedures. A suspect who refuses consent for an identification procedure will be treated as known but not available.
• Suspect not known: Police may arrange for witnesses to view people in relevant areas (street identifications) or to see images (e.g. photobook/computerised image sets) under Annex E safeguards.

When a witness has identified a suspect informally (e.g. at the scene or later in the street), a formal Code D procedure should still be held to test reliability if identity is disputed. If photographs are used to assist witness recollection, the witness’s first description must be recorded before any viewing. At least 12 photographs should be shown at a time, and once a positive photographic identification is made, other witnesses should not be shown the same images; formal procedures should follow. The suspect or their solicitor should be notified if a witness due to attend a formal procedure has previously been shown photographs or composite images.

Notice requirements and suspect rights

Before proceeding, police must serve a written notice explaining:

• The purpose of the procedure and process
• The right to legal advice and to have a solicitor (and, in some cases, an appropriate adult or friend) present
• The right to refuse participation, and potential consequences (including that refusal may be given in trial evidence, and that a covert procedure may be used)
• If appropriate, special arrangements for children or vulnerable adults
• That the solicitor will be given the initial description provided by eyewitnesses
• That any change in the suspect’s appearance between notice and conduct of the procedure may affect arrangements (e.g. replication or concealment of distinguishing features) and may be raised at trial

Code D requires the police to record the first description of the suspect given by a witness and provide that to the suspect’s solicitor before the procedure. This contemporaneous record is important when assessing consistency and fairness at trial.

Consent and refusal

If a suspect:

• Consents and participates: Standard identification is used where possible, with video identification the usual default.
• Refuses: The officer may proceed with a covert or alternative procedure; refusal may be used as adverse evidence at trial.

Refusal does not bar identification. Group identification and confrontation do not require consent and may be conducted covertly. Where video images exist (e.g. prior custody images), a covert video identification may be arranged. Police cannot compel attendance at a parade, but may rely on alternative procedures if a suspect frustrates participation.

How procedures are conducted (Annex highlights)

• Video identification (Annex A): The set must include the suspect and at least eight others resembling the suspect in age, general appearance and position in life; if two suspects of similar appearance are shown in the same set, at least 12 others are required. Distinctive features (tattoos/scars/hair) should be concealed or replicated across images (electronic replication is permitted). Witnesses view the images individually, are warned the suspect may not be included, and must be kept separate from one another. The suspect or solicitor should be allowed to see the full set and raise reasonable objections; practicable steps should be taken to remedy justified objections.
• Identification parade (Annex B): The suspect stands with at least eight others of broadly similar age, height, general appearance and position in life. Witnesses are kept apart, told the suspect may or may not be present, and instructed to look at each person at least twice before deciding. The suspect may choose their position and change it between witnesses. If physical features cannot be replicated on others, concealment may be used (e.g. hat over distinctive hair). A colour photograph or video of the parade must be made.
• Group identification (Annex C): The witness observes the suspect in an informal public setting (shopping centre, escalator, bus station) where, from time to time, others of broadly similar appearance will be visible. This can be arranged with or without the suspect’s consent. If covert, police take the witness to a place and time where the suspect is likely to be present (e.g. outside workplace at finishing time).
• Confrontation (Annex D): The witness is brought face-to-face with the suspect and asked directly whether this is the person they saw earlier. The suspect’s solicitor or friend should be present unless that would cause unreasonable delay. Confrontations are reserved for last resort scenarios and must be recorded and monitored closely for fairness.

Role of the identification officer and “as soon as practicable”

An identification procedure must be organised and overseen by an officer not below the rank of inspector, independent of the investigation, and ordinarily in uniform. Once the decision to hold a procedure is made, Code D requires that it be arranged as soon as practicable. The identification officer must ensure compliance with the relevant Annex and keep a full written record, including any objections raised and steps taken to address them.

Role of the solicitor

Legal advisers may:

• Attend identification procedures to check for fairness and adherence to Code D
• Object to unfair compositions (e.g., inadequate resemblance among foils; failure to replicate or conceal distinctive features; improper witness warnings)
• Ensure the initial eyewitness description is provided before the procedure
• Insist on segregation of witnesses and absence of investigating officers during the procedure
• Make representations if police wish to skip the procedure where the Code says one is required, or if they breach other aspects
• Request the identification officer records, and photograph/video of any parade, and that objections be included in the official record

Solicitors should systematically review the proposed arrangements—numbers and resemblance of foils, movement and lighting consistency in video procedures, witness handling and segregation, and the suspect’s ability to choose parade position. If contamination is suspected (witness discussion, sight of suspect before parade, reminders of descriptions), this should be documented contemporaneously and raised with the identification officer.

Special considerations for juveniles and vulnerable suspects

Identification procedures involving children or vulnerable adults (as defined in Code C) must include:

• Presence of an appropriate adult to advise, observe fairness, and facilitate communication
• Extra care to ensure understanding of the process and implications; cautions and explanations should be repeated in the appropriate adult’s presence
• Consent requirements:
  • Juveniles aged 14 or over: consent from both the juvenile and a parent/guardian
  • Juveniles under 14: consent from the parent/guardian only
  • Persons with a mental health condition or mental disorder: consent given in the presence of the appropriate adult
• Police to ensure the procedure does not cause harm or unfairness due to vulnerability, and that special needs (interpreter, visual impairment accommodations) are met

Key Term: appropriate adult
A responsible person present to safeguard the interests and understanding of a juvenile or vulnerable suspect during identification procedures (and other police processes).

Practical steps for the legal adviser

• Request disclosure of the initial witness description (as first recorded) before any procedure
• Advise on participation versus refusal, explaining potential trial consequences, including that refusal may be adduced and covert procedures used
• Attend the procedure; check Annex compliance (number and resemblance of foils; warnings; witness segregation; photo/video of parade)
• Challenge any deviation from Code D; ask the identification officer to record your objections and reasons
• Keep a detailed contemporaneous note: time, location, personnel present, witness handling, warnings, suspect position changes, and any irregularities
• If police decline to hold a procedure where Code D requires one, make formal representations and ensure they are noted in the custody record; anticipate a fairness challenge at trial under PACE s 78 if identification evidence is later disputed

Detailed practice notes and typical pitfalls

• Witness preparation and contamination: Witnesses should not be shown photographs or reminded of descriptions immediately before a procedure; they must not communicate with each other or be told whether others made identifications. If you learn a witness saw the suspect prior to the parade, insist this be recorded and considered.
• Distinctive features: Where a suspect has unusual features, ensure concealment or replication is consistent across all foils. If concealment is used in a video identification and the witness asks to see images without concealment or replication, the Code allows this; check that similar conditions are applied across images.
• Multiple suspects: In a video identification featuring two suspects of similar appearance, at least twelve other images are required; verify this before witnesses view the set.
• Street or photo identification antecedents: If a witness first identified the suspect informally (street) or from photographs, a formal procedure still serves to test reliability. Ensure the defence is notified if any witness due to attend a formal procedure previously viewed images, and that witness handling then complies strictly with Code D.
• Known but not available: If the suspect refuses consent, anticipate either a covert group identification or confrontation. Prepare the client for the evidential implications of refusal and be ready to challenge the fairness of any covert procedure if safeguards were not met.

Worked Example 1.1

Linda is asked by police to participate in a video identification procedure after an eyewitness claims to be able to identify the person who stole a mobile phone. Linda disputes being present at the scene and seeks your advice as her solicitor. What key steps and advice should you provide?

Answer:
Advise Linda that Code D likely requires a video identification since identity is disputed and a witness claims to be able to identify a suspect. Ensure Linda receives written notice, copies of the initial eyewitness description, and her full rights. Attend the procedure if possible, check for fairness in lineup images, and advise on the implications of refusal (adverse inferences or covert alternatives). If Linda consents, oversee that the Code is followed. If she refuses, explain that refusal may be raised at trial and a covert or alternative procedure could occur.

Worked Example 1.2

James, aged 15, is suspected of assault but claims he was elsewhere. A witness says they could pick him out, but he is unsure whether to participate in the proposed identification parade. What advice do you give regarding consent and practical protections?

Answer:
As James is under 18, insist police arrange for his appropriate adult to attend all discussions and the procedure. Police must have both James and his parent's (or guardian's) consent (or just the parent's if he were under 14). Explain James's right to legal advice and presence of a solicitor. If he consents, check that the parade is conducted fairly and his interests are protected. If he refuses or withdraws, the refusal and resulting procedure (e.g., group identification or covert method) may still produce evidence.

Worked Example 1.3

A witness identified Alex in the street two days after a burglary, and Alex was arrested nearby. Alex denies involvement and says the witness is mistaken. The police propose a video identification; Alex is wary and considers refusing. How should you advise, and what procedural points must you check?

Answer:
Explain that, because identity is disputed and a witness claims a capacity to identify, a formal procedure is required to test the reliability of the street identification. Video identification is the default. Advise Alex to participate: a fair procedure with proper foils offers the best safeguard against mistaken identification. Obtain the initial description; check that at least eight foils resemble Alex in age, general appearance and position in life, that unusual features are concealed or replicated, and that the investigating officers are not present. Ensure witnesses are segregated and warned the suspect may not be present. If Alex refuses, warn that refusal may be raised at trial and could prompt a covert group identification or confrontation.

Worked Example 1.4

Two similar-looking suspects, Ben and Ravi, are both alleged to have taken part in an affray. The police plan a single video identification that includes both. On review, you discover only ten other images in the set and that four foils do not resemble either suspect. What should you do, and what are the potential trial consequences if the procedure proceeds as is?

Answer:
Object before any witness viewing. A dual-suspect video identification requires at least twelve other images of broadly similar appearance; and the foils must resemble the suspects. Ask the identification officer to remedy the defects by increasing the number of foils and replacing non-resembling images. Ensure your objections are recorded. If the procedure proceeds without remedy, you may later challenge admissibility under PACE s 78 on fairness grounds due to significant and substantial Code D breaches. If admitted, invite a Turnbull direction at trial to emphasise the risks of reliance on identification evidence and highlight the procedural weaknesses when the jury assesses weight.

Exam Warning

A failure by police to offer or properly conduct an identification procedure where Code D requires one may result in exclusion of the evidence at trial. However, errors do not always lead to exclusion—the court assesses whether admission would have such an adverse effect on fairness that it ought not to admit the evidence (PACE s 78). Significant and substantial breaches (e.g., misleading the defence about the strength of evidence or obvious non-compliance with Annex requirements) are more likely to trigger exclusion. If identification evidence is admitted despite breaches, expect a Turnbull direction where the case depends wholly or substantially on visual identification evidence and identity is disputed.

Revision Tip

When advising a client about participating, weigh the quality of the initial witness description, whether recognition is truly undisputed, the availability and suitability of video identification versus live parade, and how refusal might invite covert alternatives and adverse commentary. Prepare to monitor compliance meticulously and preserve objections; this positions you to seek exclusion under s 78 if fairness is compromised or, if admitted, to press for a robust Turnbull warning on reliability and supporting evidence.

Key Point Checklist

This article has covered the following key knowledge points:

• Code D procedures are required where identity is disputed and an eyewitness can potentially identify a suspect; they must be held as soon as practicable unless not practicable or purposeless
• The main types are video identification, identification parade, group identification, and confrontation (in order of preference)
• Video identification is usually preferred; parades may be more suitable if practicable; group identification can be arranged (including covertly) where suitable; confrontation is last resort
• Annex requirements include minimum numbers of foils, resemblance, concealment/replication of distinctive features, and witness warnings and segregation; dual-suspect video sets require at least twelve foils
• Suspects must be given written notice, all their rights, and an explanation of procedures and consequences of refusal; the solicitor should receive the initial witness description
• Status categories matter: known and available triggers standard procedures; refusal renders a suspect known but not available, allowing covert alternatives; where the suspect is not known, Annex E photographic and street identification safeguards apply
• Suspects (especially juveniles/vulnerable adults) are entitled to protection via legal advice, an appropriate adult, and fairness in process; special consent rules apply under Code D
• Refusal to participate may lead to covert or alternative procedures and may be used as adverse evidence in court
• Legal advisers should attend where possible, check fairness rigorously, object to defects, and ensure objections are recorded; where Code D is breached, consider s 78 exclusion and Turnbull guidance at trial
• Any procedural errors may allow challenge to the identification evidence at trial, but not every breach leads to exclusion

Key Terms and Concepts

• identification procedure
• identification officer
• video identification
• identification parade
• group identification
• confrontation
• appropriate adult
• known and available