- Code D of PACE
- Other Forms of Identification covered by Code D
- The Turnbull Guidelines
- Dock Identification
- Visual Identification: Useful Cases
Visual identification of suspects can be potentially unreliable, given that an honest but mistaken witness can be a compelling witness.
The following chapter deals with the safeguards that have been created to reduce the risk of mistaken identification.
They are the procedures prescribed by:
- Code D of the Police and Criminal Evidence Act 1984 (PACE);
- The ‘Turnbull Guidelines’, which are rules to guide Judges and Magistrates who are dealing with contested identification during the course of a trial; and
- The rule against dock identification.
The most recent revision of Code D can be found here. It relates to any identification procedure carried out after midnight on 23 February 2017.
If the provisions of a relevant Code of Practice are not followed, the consequences of the failure to comply may result in evidence being excluded under Section 78 PACE. (See Confessions Unfairly Obtained Evidence and Breaches of PACE elsewhere in the Legal Guidance)
The procedures in Code D are designed to test the ability of a witness to identify a suspect he claims to have seen or recognised from a previous occasion. They also require any descriptions provided by the witness to be recorded and retained in order that a comparison can be made with any subsequent identification.
Identification by an eye-witness arises when a witness who has seen the offender committing the crime is given an opportunity to identify a person.
In cases when the suspect’s identity is not known, a witness may be taken to a particular neighbourhood or place to see whether they can identify the person they saw on a previous occasion. Code D sets out the formal procedures that should be followed, including the requirement for recording the full details of the circumstances of any identification by the witness.
Code D, para 3.3. states that the showing of photographs to a witness must be carried out in accordance with Code D, Annex E, paras 6 and 8. Only one eye-witness at a time may be shown photographs, and he must be shown at least 12 photographs at a time, which should, as far as possible, all be of a similar type. The eye-witness must be told that a photograph of the person he saw may not be among them, and he must not be prompted or guided in any way. If an eye-witness makes a positive identification from photographs, unless the person identified can be eliminated from the inquiry, no further witnesses may be shown photographs. Instead, a video identification or parade, etc. should be arranged, unless there is no dispute about the suspect's identification. Similarly, if the use of other visual images points to a known suspect who can be asked to participate in an identification procedure, the likeness must not then be shown to other witnesses.
Code D, para 3.12 sets out the circumstances in which a procedure must be held:
- Where an eye-witness has identified or purported to have identified a suspect, or there is a witness who expresses an ability to identify the suspect, or where there is a reasonable chance of the witness being able to do so; and
- The eye-witness has not been given an opportunity to identify the suspect in a video or group identification or identification parade; and
- The suspect disputes being the person the witness claims to have seen committing an offence.
If these conditions are satisfied, an identification procedure must be held unless it is not practicable or it would serve no useful purpose in proving or disproving whether the suspect was involved in committing the offence.
Code D, para 3.13 also allows for a procedure to be held if the officer in charge of an investigation considers it would be useful.
Code D provides that no procedure need be held if it would serve no useful purpose. Therefore, the appropriate question to ask is whether a procedure could produce relevant evidence.
Being ’known’ means there is sufficient information known to the police to justify the arrest of a particular person for suspected involvement in the offence.
Being ’available’ means they are immediately available or will be within a reasonably short time and willing to take part in a video identification, identification parade or a group identification, which it is practicable to arrange.
An identification parade is when the eye-witness sees the suspect in a line of others who resemble the suspect.
A group identification is when the eye-witness sees the suspect in an informal group of people. The conditions under which group identifications take place cannot be controlled to the same degree as video identification or parades but, under para. 6, the identification officer must reasonably expect that over the period the witness observes the group he will be able to see, from time to time, a number of others (in addition to the suspect) whose appearance is broadly similar.
A video identification is when the eye-witness is shown images of a known suspect, together with similar images of others who resemble the suspect.
If an available suspect refuses the identification procedure proposed by the police, he (or his representative/appropriate adult) may make representations as to why another procedure should be used. The Code allows for the Identification Officer to make another procedure available, ‘if appropriate’. The use of the term ‘if appropriate’ indicates that the police need not agree to requests that appear to be motivated by obstruction. If the Identification Officer decides it is not appropriate to offer any alternative procedure, that decision and the reasons for it must be recorded (Code D, para 3.15).
If the suspect does not consent to the procedure he may in effect be treated as being not available.
Guidance for the different types of identification procedures are set out in the Annex A-C of the Code.
The Identation Officer may make arrangements for a video identification or group identification, if this is practicable. If it is not practicable, a confrontation may be used. A confrontation is when the suspect is directly onfronted by the eye-witness. A confrontation does not require the suspect’s consent.
The availability of video identificatiomeans that cases where an identification procedure is not practicable should be rare. One example is where the suspect has such distinctive features that appropriate disguises or modifications still cannot make the procedure practicable.
There are an increasing number of cases where witnesses have searched through images on social media sites in order to make an identification of the suspect.
The fact that this has happened does not automatically mean that any subsequent identification is invalid, as each case will stand on its own merits.
Prosecutors should be careful to ensure that the investigating officers and the Identification Officers have completed the documentation correctly.
In 2014, a joint CPS/Police document was produced by the National Visual and Voice Identification Strategy Group (NVVIS). This provides guidance of procedures to be followed where there has been an identification from social media.
Prosecutors should refer to this guidance in cases where witnesses have viewed social media images. The 3 most important principles are:
- Social media identification is admissible evidence. However, formal identification should still be considered, applying code D.
- Each case is unique on its own facts.
- Obtaining full details of the social media identification is essential.
Recognition is a form of identification by a person who is not an eye witness to the offence.
This should be distinguished from cases where images (particularly those taken from CCTV) are used as supporting evidence, for example where there is an offence of theft- the suspect is found in possession of stolen property and there is bad character evidence to show he has committed similar thefts before and the CCTV images show the culprit to be very similar in appearance to the suspect by a number of distinguishing features. Unless a witness purports to recognise the suspect (and does so under the circumstances described below) this does not come under the guidance for identification.
This is where a person (including a police officer) who is not an eye witness views a film, photograph or other visual medium and is asked whether he recognises anyone shown in the material as someone who is known to him.
Code D, para 3.35 through to para 3.37 sets out the safeguards and procedures for recording the procedure. It is suggested that the information required by Code D, para 3.36 should be incorporated into the statement of the witness.
This is where films or photographs of incidents or other images are shown to the public (which may include police officers and police staff) through national or local media or social media or circulated via communication systems for the purpose of identifying and tracing suspects. Code D, para 3.39 through to para 3.41 sets out the procedures to be followed, including the situation where an eye witness comes forward as a result of the release of the visual media and any formal identification procedure that ensues.
Fingerprint Identification is a matter for the opinion and expertise of fingerprint experts. The prosecution must show that the fingerprints taken from the scene of the crime match those on the fingerprint form, and also identify the fingerprints on the form.
In the area of footwear mark evidence, there is not a sufficiently reliable statistical basis for an expert to be able to express an evaluative opinion based on the use of a mathematical formula to arrive at a likelihood ratio. However that does not mean a court cannot admit an evaluative opinion where there is some other sufficiently reliable basis for its admission; an expert examiner can, in appropriate cases, use his experience to express a more definitive opinion.
It is essential that an expert report is logical and transparent as to the way the conclusion has been reached.
The police may search, but not intimately search, and examine persons detained at a police station to establish whether they have any marks, features or injuries which would tend to identify them as the person involved in the commission of an offence.
In certain circumstances, such examination may be carried out without the suspect’s consent; and reasonable force may be used to expose the identifying feature or take photographs (Code D, para 5.9)
A different regime applies to persons voluntarily present at a police station.
An "intimate sample" refers to a dental impression or sample of blood, semen or any other tissue fluid, urine, or pubic hair, or a swab taken from any part of a person’s genitals or from a person’s body orifice other than the mouth.
A "non-intimate sample" includes the following: a sample of hair, other than pubic hair, which includes hair plucked with the root; a sample taken from a nail or from under a nail; a swab taken from any part of a person’s body other than a part from which a swab taken would be an intimate sample; saliva; a skin impression of the skin pattern and other physical characteristics or features of the whole, or any part of, a person’s foot or of any other part of their body.
Where voice identification (now commonly referred to by speech scientists as “speaker comparisons”) is in issue, the jury should be given the full Turnbull warning (see below), appropriately modified.
Accurate voice identification is more difficult than visual identification (although it is more likely to be reliable when carried out by experts using acoustic, spectrographic and sophisticated auditory techniques) accordingly, a warning to a jury should be even more stringent than that given in relation to visual identification.
The Court of Appeal in R v Turnbull  QB 224 prescribed rules to guide Judges faced with contested visual identification evidence. The guidelines are also applicable in cases of voice recognition or identification. The guidelines are aimed at assessing the quality of the identification.
- When a case depends wholly or substantially on the correctness of one or more identifications of the accused which the defence claims are mistaken, the judge should warn the jury of the special need for caution before convicting the accused in reliance on the identification. In particular he should instruct them of the reason for the need for this warning and make some reference to the possibility that a mistaken witness can be a convincing witness and that a number of witnesses can all be mistaken. There is no prescribed form of words.
- The judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made. This may include asking themselves the following questions:
How long did the witness have the accused under observation? At what distance? In what light?
Was the observation impeded in any way e.g. by traffic or other people?
Had the witness ever seen the accused before? If so, how often? If only occasionally, had he any special reason for remembering the accused?
How long had elapsed between the original observation and the subsequent identification to the police?
Was there any material discrepancy between the description given by the witness and the actual appearance of the accused?
Where there is a material discrepancy the particulars should be provided to the defence and in all cases they should be supplied if requested.
- The judge should remind the jury of any specific weaknesses in the identification evidence.
- Recognition should be more reliable than identification of a stranger. However, juries should be reminded that mistakes can be made.
- If the quality of the identification evidence is good and remains good to the end of the case, the danger of mistaken identification is lessened; but the poorer the quality, the greater the danger.
- Where the quality is good, the jury can be safely left to assess the value of the identification evidence, even if there is no other supporting evidence, provided adequate warning has been given.
- Where, in the judgement of the trial judge, the quality of the identifying evidence is poor (such as a fleeting glance or difficult conditions), the judge should withdraw the case from the jury and direct an acquittal, unless there is evidence that supports the correctness of the identification. The trial judge should identify to the jury the evidence he considers capable of supporting the identification evidence. If there is any evidence or circumstances that the jury might think was supporting when it didn’t have this quality, the judge should say so.
- Care should be taken by the judge when directing the jury about the support for an identification, which may be derived from the fact they have rejected an alibi. False alibis may be put forward for many reasons, including a truthful accused who worries that his own evidence will not be enough. Further, alibi witnesses can make genuine mistakes about dates and occasions, as any other witnesses can. It is only when the jury is satisfied that the sole reason for the fabrication was to deceive them and there is no other explanation for it being put forward, that fabrication can provide any support for identification evidence. The jury should be reminded that proving the accused has told lies about where he was at the material time does not by itself prove that he was where the identifying witness says he was.
This term refers to the identification of the accused for the first time during the course of the trial itself, by a witness who has not previously named him or identified him by means of a Code D procedure.
In view of the dangers posed by dock identification, the CPS and Attorney General’s Office have undertaken, in relation to offences on indictment, that:
“The [prosecution] … will not invite a witness to identity, who has not previously identified the accused at an identity parade, to make a dock identification unless the witness's attendance at a parade was unnecessary or impracticable, or there are exceptional circumstances”
As a result, a judge will normally prohibit any such identification during a trial on indictment but different considerations may apply in minor summary offences.
Prosecutors should consider their duty of disclosure, especially with regard to photographs taken upon arrest and initial crime reports containing descriptions provided by eye witnesses.
This is not intended to be an exhaustive list of case law but guidance to the most commonly encountered identification issues.
- The duty to hold an identification procedure applies equally where a dispute as to identity may reasonably be anticipated - R. v. Rutherford and Palmer, 98 Cr.App.R. 191, CA (approved in R. v. Harris (2003) 147 S.J. 237, CA).
- Such a dispute was not reasonably to be anticipated, however, where the suspect had declined to participate in a parade, and did not thereafter deny presence at the scene of the offence - R. v. McCartney  6 Archbold News 2, CA.
- R. v. Lambert, unreported, 13 January 2004, CA ( EWCA Crim. 154):
- The question of whether a suspect disputes an identification made or purported to have been made by a witness, falls for consideration at the time that the police are investigating the offence, rather than in the light of the evidence actually given at trial;
- There does not necessarily have to be a positive dispute as to identification raised by the particular suspect
- It is sufficient if the circumstances are such that it is clear to the police that there is an identification issue
- Where all defendants in interview either made no comment, admitted to having been present at the time of the offence, or admitted limited participation, it was held that there had not been a breach of Code D:3.12, by virtue of the failure to conduct an identification procedure;
- It had been reasonable for the police to conclude that participation, not identification, was the issue, albeit it is perfectly possible for there still to be a serious identification issue notwithstanding that presence at the scene is admitted.
However, in R. v. Shanmugarajah and Liberna  2 Cr.App.R. 14, CA - “The suggestion that an approach that takes the stance that a “no comment” interview does not engage the need for an identification procedure is disingenuous, stands the burden of proof on its head and involves a misreading of Code D”.
- A mere description of a culprit or his clothing does not amount to identification evidence - Gayle  2 Cr App R 130
- It is not identification evidence where the witness states that the culprit was the driver of a particular vehicle, or the companion of another person, whose own identification is not in dispute - White  All ER (D) 602
- As with the other codes of practice issued under the PACE 1984, breaches of Code D do not inevitably lead to the exclusion of evidence that may be tainted by the breach - Khan  Crim LR 584; McEvoy  Crim LR 887; Selwyn  EWCA Crim 2968; Lariba  EWCA Crim 478;. DPP v Jobling  EWHC 2707 (Admin), In the latter two cases both judgements emphasised that the strength of both the identification evidence and other supporting evidence was key in weighing against the breach.
- It is essential that the trial court or judge determines whether any alleged breaches have occurred, and whether they may have caused any significant prejudice to the accused - Grannell (1989) 90 Cr App R 149; Ryan  Crim LR 187; Quinn  1 Cr App R 480; Hickin  Crim LR 584.
- A trial court or judge must give reasons for any decision to admit identification evidence obtained in breach of Code D - Allen  Crim LR 643
- Identification evidence will normally be excluded where important safeguards have been flouted. In this case the conviction was quashed after evidence had been admitted at his trial derived from a deliberately staged encounter outside the police station, in which he had been confronted by the identifying witness as he left, after having been told that there was insufficient evidence to charge him. He had previously agreed to stand on an identification parade, but this was never held - Nagah  Crim LR 55.
- No Turnbull direction is needed unless the prosecution case depends wholly or substantially on visual identification. McMillan  EWCA Crim 1774; Beckford v The Queen (1993) 97 Cr App R 409; Bowden  Crim LR 379;
- The absence of an adequate Turnbull direction will usually require a conviction to be quashed as unsafe - Farquharson v The Queen (1993) 98 Cr App R 398
- If the accuracy of a purported identification (as opposed to the honesty of the accusing witness) is not in issue, then neither the Turnbull guidelines nor Code D will need to be considered. In such cases, any attempt to apply the Turnbull guidelines would merely serve to confuse the jury by focusing their attention on the wrong issue - Courtnell  Crim LR 115; Cape  1 Cr App R 191; Panesar  EWCA Crim 2510.
- The governing principles in relation to self-incrimination by false alibis or other lies, as set out by the Court of Appeal in Lucas  QB 720, held applicable in identification cases - Goodway  4 All ER
- An identifying witness who is involved in the criminal justice system is likely to have a greater appreciation of the importance of identification, and so to look for some particular identifying feature. Honest police officers are likely to be more reliable than the general public, being trained and less likely to have their observations and recollections affected by the excitement of the situation. Provided that the usual warnings are given, the reasons scrutinised, and the integrity of the witness is not in doubt, the tribunal can give effect to what is only common sense: R. v. Ramsden  Crim.L.R. 295, CA. This was endorsed in R. v. Spittle  R.T.R. 14, CA, where the CA made the point that a witness, a police officer, was “professionally trained to carry out observation.