Identification evidence – how are suspects identified in criminal proceedings?

There are multiple ways in which a suspect can be identified in criminal proceedings. This can be through eyewitnesses or via visual media.

Code D Police and Criminal Evidence Act 1984 (PACE)

The relevant Code of Practice which sets out the guidelines that govern how the police use their legal authority to identify people has been issued under the Police and Criminal Evidence Act 1984 (PACE) as Code D. It is essential that the procedures in Code D are followed as a significant and substantial breach of Code D may result in identification evidence being excluded by the court.

Code D states the identification procedures may be held if the officer in charge of the investigation considers that it would be ‘useful’. There are also provisions for when mandatory identification is required.

When must identification procedures be held?

Identification procedures must be held when:

• A witness has identified or purported to identify the suspect or
• A witness thinks he can identify the suspect or there is a reasonable chance that the witness can identify the suspect and the suspect disputes being the person the witness claims to have seen

An identification procedure should be held unless it is not practical or would serve no purpose in proving or disproving the suspect’s involvement.

Identification of a suspect by an eyewitness (part A)

When an eyewitness has seen a person committing a crime or close to the scene of the crime immediately before or immediately after it was committed, PACE sets out the procedure to be used to test the ability of that eyewitness to identify that person.

Records

A record should be made of the description of the suspect as first given by the eyewitness. This must

1. Be made and kept in a form which enables details of that description to be accurately produced from it; and
2. Should be made before the eyewitness takes part in any identification procedures.

A copy of the record should, where practicable, be given to the suspect or their solicitor before any identification procedures take place.

Cases when the suspect’s identity is not known

If the suspect’s identify is not known, an eyewitness may be taken to a particular neighbourhood or place to see whether they can identify the person they saw on a previous occasion.

The following procedures should be followed:

1. Where it is practicable to do so, a record should be made of the eye witness’ description of the person they saw on the previous occasion.
2. The eyewitness shouldn’t be provided with any information concerning the description of the suspect and they should not be directed towards any individual.
3. If there is more than one eyewitness, they should be kept separate.
4. Once a suspect is ‘known’ i.e. the witness has made an identification then an identification procedure should take place.

Cases when the suspect is known and available

A suspect is labelled as ‘known’ if there is sufficient information known to the police to establish that there are reasonable grounds to suspect a particular person of involvement in the offence.

A suspect is labelled as ‘available’ if they are immediately available or will be available within a reasonably short time in order for them to be invited to take part in an identification procedure.

The following procedures could be used:

1. Video Identification – this is when an eyewitness is shown images of the suspect together with similar images of others who resemble the suspect.
2. Identification parade – this is when the eyewitness sess the suspect in a line of others who resemble the suspect
3. Group identification – this is when the eyewitness sees the suspect in an informal group of people

Recognition can also be made by controlled showing of films, photographs and images by a person who is not an eyewitness. This could be by a police officer who is shown material and asked if they recognise anyone in it.

Identification cases involving recognition by controlled showing of films, photographs and images(Part B)

On certain occasions arrangements need to be made for a person, including a police officer, who is not an eyewitness to view a film, photograph or any other visual medium and to be asked whether they recognise anyone whose image is shown in the material as someone who is known to them.

To safeguard against mistaken recognition, the following should happen:

1. The films, photographs and other images should be shown on an individual basis.
2. Any person who views the material should not be able to communicate with any other person whom the material has been or is to be shown to, should not be reminded of any photograph or description of any individual whose image is shown and should not be told whether a previous witness has recognised anyone.
3. Immediately before being shown the material, they should be told that they may or may not be shown a person who is known to them and that they can see any part of the material frozen for them as many times as they would like. They should also be told that they should not make any decision before seeing the material at least twice.

A detailed record of the circumstances and conditions should be made as stated in paragraph 3.36.

Identification cases where witnesses have viewed images on social media (Part C)

Sometimes films and photographs of incidents are shown to the public through the national or local media or any social media networking site or circulated through police communication systems for viewing by police officers and police staff. This viewing would not be formally controlled and supervised.

If this happens a copy of the relevant material which was released should be kept and shown to the suspect and their solicitor before any eyewitness identification procedures are carried out.

Each eyewitness should be asked if they have seen any film/photograph or image relating to the offence or any description of the suspect which has been published.

If someone indicates that they may have information relating to the identity and location of a suspect arrangements should be made to take details of the circumstances and conditions in which the viewing took place.

Should I agree to go on an identification parade?

Whether or not you should agree to go on an identification parade depends on a number of factors. This includes the state of the evidence, the original description given to the police by a potential eyewitness and the possibility of any other identification evidence, including CCTV or photographs.

If you are asked to attend an identification parade, you should contact a solicitor as soon as possible for specialist legal advice.

How can Olliers help?

At Olliers we have a team of experienced solicitors who specialise in representing suspects at the pre-charge stage.

If you would like to discuss how Olliers’ team of specialist pre-charge lawyers can assist you, please contact our new enquiry team by telephone at 0161 834 1515 (Manchester), 020 3883 6790 (London) or via email at info@olliers.com or complete the form below to arrange a confidential discussion.