All references in this Legal Guidance are references to the current Code D of the Police and Criminal Evidence Act which came into effect on 1 February 2008. A degree of caution needs to be exercised in citing authorities relating to earlier versions.
A summary of the principal changes made to PACE Codes A to E on 1 February 2008 is available at Annex A.
This introduction provides an overview of the contents of this section.
Where a suspect disputes identification, the prosecution will be put to proof that the defendant is, beyond all reasonable doubt, the person who committed the offence.
This section considers the different types of evidence that should be considered by prosecutors, and what sort of quality is required to secure a conviction, it also considers whether or not the issue of identification is relevant or not.
For example what happens when the defence alleges that a witness is lying, is identification an issue or not? What happens when the defendant admits to being at the scene when the offence is committed?
The section will also consider the type of evidence that should be requested from the police and also what other types of evidence may improve and support the identification evidence.
The guidance also considers the police procedures as provided for by the Codes under PACE, both when the suspect is known, and when he is not. The guidance takes account of the changes brought about by the revised Code D of Practice, which is effective for identification procedures taking place after midnight on 31 December 2005. The revised Code D can be found on the Home office website.
2. Visual Identification - Relevant Cases
2.1 Is the Witness Identifying a Person?
In Dance v DPP (Div. Court CO/2103/98 and TLR 7/8/98) the Divisional Court analysed one set of circumstances, in which the witness described the clothing and approximate ages of two young men which led to the arrest of two young men.
"...there was nothing in Mr. Challice's description which bore upon the facial appearance, colouring, build, height, or manner of walking or moving of those he had seen ... an identification parade could have served no useful purpose"
In R v Doldur Crim.LR 2000 178 the Court of Appeal stated that no parades were necessary if a witness purported to identify a distinguishing feature such as clothing only rather than the offender see Archbold 14-28.
See also R v Nicholson (2000) 1 Cr App. R 182.
Where the defence is likely to be that the witness is lying, for whatever reason, the quality of the identification evidence is not an issue. The leading case is R v Courtnell (1990) Crim.LR 11 in which the prosecution case depended wholly on evidence of a manager of a public house. The defence was one of alibi, and it was held at the outset by the defendant that the landlord was "stitching me up". As the Court of Appeal stated; "The sole issue was the veracity of S; the defence did not allege he was mistaken. A Turnbull direction (1977 Q.B 224), in those circumstances would only have confused the Jury". Courtnell was followed in R v Withers (91/3171/Z3 - 25/1/93) reported at para T-15 of the Archbold Criminal Index.
A frame-up was again alleged in R v Cape, Jackson and Gardener 1996, 1 Cr.App.R 191. In a case similar to Courtnell, the Judge gave no direction to the Jury as to how to approach the question of identification in the case of two of the defendants, who alleged that the witness was 'framing them'. See also Shand v R (1996) Crim. LR 422 and R v Beckles and Montague (1999) Crim.LR 148.
2.3 Presence at the Scene Not Disputed
This section addresses the position regarding identification when a defendant admits presence but denies involvement at the scene of an offence? This issue can arise during the course of the defence case as well as being revealed on the prosecution papers. The most helpful authorities are set out below.
In R v Keeble (1983) Crim. and R v Curry and LR 73 , the Trial Judge had told the jury to be aware of the risk of mistaken identification, and to evaluate it, and that the risk would be high where the sighting had only been a fleeting glance, but that in every case it was a matter of degree. He then went on to remind the Jury of the circumstances. The defence appealed on the basis that there should have been a full Turnbull warning. The Court of Appeal dismissed the appeal stating that the warning in Turnbull, was not intended to deal with every case involving a minor identification problem (following Oakwell 1978, 66 Cr.App.R. 174) but only with the ghastly risk run in cases of fleeting encounters.
In R v Andrews (1993 Crim.LR 590), three men attacked and kicked the victim. Officers witnessed the assault. Andrews ran off but was found in a street nearby and behaved aggressively on arrest. He denied being involved in the attack though he said he had witnessed it. The Trial Judge did not give a Turnbull warning, reminding the Jury that the identification of Andrews was not as clear as the other two but said that on the Police evidence the Officer's description fitted Andrews. His appeal was allowed because the Judge effectively withdrew the accuracy of the description from the Jury by saying "quite plainly that was John Andrews - certainly he is extremely well built". "It would also have been at least prudent for a Turnbull direction to be given".
This principle was reaffirmed in R v Thornton (1995 1 Cr.App.R 578) where the Court of Appeal allowed the appeal of a defendant who gave evidence that he was present at a wedding reception where a violent assault had occurred. He said he was the one who went out to help the victim up and found himself identified.
The Court noted that;
"The Judge ought to have given the Jury the full warning in accordance with the direction in the case of Turnbull ...there were others similarly dressed to the appellant at the reception and a mistake was clearly possible".
However, in R v Slater, (1995 Crim.LR 244) the Court of Appeal qualified the case of Thornton. An assault took place in a nightclub, and Slater said he had been present and had been aware of a disturbance but that he was but not involved. The Trial Judge said that he was not sure that strictly it was an identification case and gave no full Turnbull direction.
The appeal was dismissed and the Court held:
- The need for a direction arises only where there is the possibility of mistaken identification. Where there is no issue as to the accused's presence at, or near the scene, but the issue is as to what he was doing, it does not automatically follow that the direction must be given. It will be necessary where the possibility exists that a witness may have mistaken one person for another, for example because of similarities of build or clothing etc.
- The Court pointed out that the case of Thornton was not authority for a mandatory direction
- "It would be contrary to commonsense" to require the direction in all cases where presence is admitted but conduct disputed.
See also R v Hope, Limburn and Bleasedale 1994 Crim.LR 118.
R v McMath 1997 - conviction quashed after failure to hold a parade despite defendant's admission to being present at an affray.
2.4 Eyewitness and Other Compelling Evidence
In Rutherford and Palmer 98 Cr.App.R. 191 (a case based on the old Code and the defendant's right to request a parade) no parade was held despite the fact there were witnesses who said they had a reasonable prospect of making identification. This was held to be a breach despite the otherwise strong evidence. As the case against the defendant was strong the appeal was dismissed.
2.5 Relevant Principles from Case Law
- Where a witness indicates there is no reasonable possibility of picking out the culprit on a parade, then it is pointless holding one even if the defendant requests one. (Montgomery and R v Forbes).
- If a witness indicates there is a reasonable possibility of picking out the culprit, and other strong identification evidence is available (fingerprints, DNA, found in possession of property etc) then it might be possible to uphold a subsequent conviction if Code D procedures are not used; however, this is risky as Walker and Rutherford and Palmer seem to indicate that a failure to hold a parade would be a breach and if so, despite the strong evidence, may risk upsetting the conviction.
See also R v Allen 1995 Crim.LR 643.
In R v Kelly TLR 23.2.98, it was held that the failure to hold a parade, although a breach, did not affect the safety of a conviction where the case depended upon "deduction from uncontested evidence", even though the defendant had requested a parade. Strength of other evidence emphasised with or without a parade.
In R v Byron TLR 10/3/99 evidence of a factually descriptive nature, here a tattoo, which in the context of other evidence in the case was highly probative, did not make it evidence of identification.
It has been held that facial mapping evidence cannot be allowed to replace true identification evidence made by eyewitnesses where it had been possible to hold parades but none were held because of CPS advice - R v Walker (Unreported).
Although arguments about the identification evidence do not affect the admissibility of the other evidence, such as fingerprints, DNA or handwriting, they may affect the overall view as to the fairness of a trial or the safety of a conviction under either Article 6 of the ECHR or our own domestic appellate procedures.
2.6 What Constitutes Relevant Information about Identification?
Police should forward copies of all first descriptions given by potential witnesses and recorded in accordance with Code D. This may also include photos of the suspect. Almost invariably, the evidence available to the prosecutor will be the statements of the witnesses. However, care should be taken to consider other source material, such as crime reports that may reveal the first descriptions, police pocketbook entries, tapes of or drafts of preliminary interviews with witnesses, draft statements and interviews with persons who are now witnesses but who may have been interviewed initially as suspects and crime reports.
2.7 Evidence Involving Recognition
There is confusion about the difference between recognition and identification and where one begins and the other ends. See Archbold 14-19.
Essentially, recognition is a type of identification. This was acknowledged in R v Turnbull.
Thus, even in recognition cases, where mistakes in the recognition of close friends and even relatives are sometimes made, a Turnbull warning is necessary - see R v Bowden  Crim LR 379.
In cases where there has been some form of recognition the risk does not lie in the witness picking out the wrong person at an identification parade, but in the fact that at the time, the person witnessed the offence he was mistaken in his purported recognition of the offender, see R v Thomas (1994) Crim.L.R. 128, CA
When the identification/recognition of a suspect is made by a police officer as a result of previous dealings with that person, the identification is admissible - R v Caldwell and Dixon 1993 CLR 862. Much will depend on the circumstances of the recognition: if it is followed by an immediate arrest, there is no break in the chain from observation to arrest, but if the identifying officer does not immediately arrest the suspect, formal identification procedures should be followed to avoid the risk of the officer's recognition evidence being ruled inadmissible.
2.8 Recognition by Proxy
There is also the case where the recognition is "by proxy", that is, recognition of a suspect by reference to his connection to others present at the scene and at the place of arrest. Where such evidence is the only evidence of identification, the Turnbull warning must be given: R v Bath 154 JPR 849. Where identification by proxy is not itself the evidence relied on, but is rather evidence supporting the direct identification, the Court of Appeal has held that "the ripples of Turnbull" did not extend so far as to require the Turnbull warning: R v Green [unreported] CA 10.4.95.
2.9 Quality of the Evidence
R v Turnbull 1976, 63 Cr App R 132
The guidelines in Turnbull are aimed at assessing the quality of the identification. The court said:
"In our judgement when the quality is good as for example when the identification is made after a long period of observation, or in satisfactory conditions by a relative, a neighbour, a close friend, a workmate and the like, the Jury can safely be left to assess the value of the identifying evidence even though there is no other evidence to support it".
"When in the judgement of the Trial Judge, the quality of the identifying evidence is poor as for example when it depends solely on a fleeting glance, or on a longer observation made in difficult conditions, the situation is very different. The Judge should then withdraw the case from the Jury and direct an acquittal unless there is other evidence which goes to support the correctness of the identification".
The Court of Appeal made the following comment in R v Bentley 1991 CLR 620::
"A recognition, which was the type of identification evidence here, could not be regarded as trouble free because many people had experienced seeing someone on the street that they knew and later discovered that they were wrong".
The approach to the warning should be flexible. In Mills & Others v The Queen (1995 CLR 884 and TLR 1/3/95) the Privy Council "emphatically rejected the mechanical approach to the Judge's task of summing up" - "R v Turnbull was not a Statute and did not require an incantation of a formula - the Judge did not need to cast his directions in a set form of words".
"All that was required of him was that he should comply with the sense and spirit of the guidance in Turnbull".
The warning should also be given in certain circumstances where video evidence is used. In R v Campbell TLR 20/2/96, a defendant was sighted on video camera and arrested only 10 minutes later. The Court of Appeal (allowing the appeal) stated that there should have been some warning about the dangers of identification evidence.
Flexibility was emphasized in R v Mussell and R v Dalton (1995 Crim.LR 887) which was a case based upon the defence assertion that the Judge, in giving a Turnbull direction, had to remind the Jury of specific weaknesses. The Court of Appeal again said "there were no hard and fast rules ".
"The quality of the evidence in each case is unique to each set of facts. The value of identification evidence depends upon a number of factors set out below; however a number of points could be made specifically about the quality of the evidence".
In R v Breslin 80 Cr.App.R. 226 "the quality of the identification evidence rather than its volume is what matters - The Trial Judge is entitled to direct the Jury that an identification by one witness could constitute support for the identification by another, provided that he warns them in clear terms that even a number of honest witnesses could all be mistaken".
In many cases, the key identification evidence will be provided by police officers. In Reid v R  AC 363, a Privy Council case, the Court rejected the suggestion that police officers were better able to identify suspects accurately than members of the public. In R v Ramsden  Crim LR 295, the Court stated that a witness within the criminal justice system was likely to have a greater appreciation of the importance of his or her identification. This was repeated in R v Tyler (1993) CLR 60.
They should approach the quality of the evidence of an officer in the same way as any other member of the public. Code D applies to police officers who are identification witnesses just as it does to any other such witness.
"An identifying witness who happened to be part of the criminal justice system was likely to have a greater appreciation of the importance of identification and so look for more particular identifying feature. Honest police officers were likely to be more reliable than the general public". See R v Ramsden (1991) Crim.L.R. 295, CA
The quality of the identification sometimes depends upon previous sightings. In R v Slater (1995) CLR 944 it was said that where this applies the Jury must examine each of the relevant previous sightings with care and that they should be so directed in accordance with Turnbull.
2.10 False Alibi
The Jury should be told that proving the defendant a liar about where he was at the material time does not per se prove he was committing the offence. However, if the Jury is satisfied that the sole reason for the false alibi was to deceive them, then that false alibi can provide support for identification.
In R v Long (1973)57 Cr.App.R 871 provides an example of this principle.
2.11 Third Party Identification
In R v Green (10/4/95 Court of Appeal 94/0009/Z3) it was held that the identification of the defendant was supported by an identification of a man, who, it was admitted, had been his companion. Had this "proxy" identification been the only evidence, a Turnbull warning would have been necessary. "The ripples from Turnbull did not extend so far as to require the warning where the proxy identification was not itself the identification evidence relied on, but rather evidence supporting the direct identification ". However, see R v Bath 1990 (Crim. LR 716) - silence under Criminal Justice and Public Order Act 1994 both in interview and failure to give evidence under Section 35.
R v Turnbull 1976, 63 Cr App R 132
Dance v DPP (Div. Court CO/2103/98 and TLR 7/8/98)
R v Doldur Crim.LR 2000 178
R v Courtnell (1990)
R v Curry and R v Keeble (1983) Crim.LR 737
The revised Code D
R v Cape, Jackson and Gardener 1996
R v Green (10/4/95 Court of Appeal 94/0009/Z3)
R v Bath 1990
R v Breslin 80 Cr.App.R. 226
Archbold 14 (1-66)
R v Cape, Jackson and Gardener 1996
Amended PACE Codes (Codes A to E) 2008 - Summary of Changes
Code A Stop and Search
- Clarifies that the definition of 'offensive weapon' under section 1 of PACE (Stop and Search) includes firearms.
- Typographical errors.
Code B Entry, Search and Seizure
- Corrects amendments made in 2005 on the level of judicial authority to issue warrants and production orders as the changes, under the Courts Act 2003, have not yet been brought into effect.
Code C Detention, Treatment and Questioning
- Implementation of recommendations that flow from the Carter Review into the provision of publicly funded legal advice through the expansion of Criminal Defence Service Direct (CDS Direct). The service provides duty solicitor advice by telephone for relatively straightforward offences such as drink driving, disorderly behaviour or minor assaults. The changes will extend telephone advice to these categories of cases where the detainee asks for publicly funded legal advice from their own solicitor.
- Translation of cautions into the Welsh language. This will enable the police to caution Welsh-speaking suspects in Welsh without risk of legal challenge later at court that PACE Code C only provides an English caution.
- Provisions in the Drugs Act 2005 (Assessment of Misuse of Drugs) require the police to impose a requirement on persons aged 18 and over to attend a follow-up assessment when imposing an initial assessment.
- Consequential changes to the drug testing trigger offences arising from the Fraud Act 2006.
- Clarification on the disposal of drug testing samples.
- Provisions in the Children Act 2004 amend the definition of who can be an appropriate adult under PACE from "a social worker of a local authority social services department to a social worker of a local authority".
- Typographical error.
Code D Identification
- Reflects changes made by the Violent Crime Reduction Act 2006 enabling the police to take a photograph elsewhere than at a police station of a person given a direction to leave and not return to a specified location.
- Typographical errors.
Code E Audio Recording of interviews
- Enables Lancashire Constabulary to carry out a pilot to audibly record interviews with suspects on a secure digital network rather than on removable media (i.e. cassette tape, CD etc.).