International Journal of Evidence & Proof
2004
The problem of mistaken identification: some observations on
process
Andrew Roberts
Subject: Criminal evidence. Other related subjects: Criminal procedure
Keywords: Criminal evidence; Criminal procedure; Eyewitnesses; Identification;
Mistake
*INTLJEVIDENCEPROOF 100 Abstract. This article examines the importance of
establishing a coherent system of safeguards against the risks of mistaken
eyewitness identification. Memories of previously observed events are susceptible to
distortion during encounters between a witness and other persons. It is argued that
pre-trial procedures conducted under controlled conditions provide the most effective
means of averting the risk of error and subsequent miscarriage of justice. However,
these are of little value without a system of safeguards that (1) ensures that the
procedures are conducted whenever the risk of error arises, (2) provides adequate
regulation of what might occur before such procedures are conducted, and (3)
ensures adherence to its prescriptions. These considerations provide the basis for a
critical evaluation of some aspects of relevant procedure in England and Wales.
In a thought-provoking essay, ‘Identification and Misidentification in Legal Processes:
Redefining the Problem’,1 William Twining challenged the orthodox view, that the
problem of misidentification is something to do with the unreliability of eyewitness
testimony in jury trials, as presenting an artificially narrow definition of the problem.
Future research and public debate about the problem of identification in legal
processes, he claimed ‘would benefit from being set in the context of a
comprehensive model of legal processes, and of a clearly articulated, integrated
theoretical framework’.2 This would entail divergence from the expository tradition of
legal scholarship, the primary concern of which are the rules of evidence,3 and would
transcend disciplinary boundaries. The expository approach is introspective,
characterised in its most polarised form, by an analysis of problems of evidence that
takes the evidential rules as the source *INTLJEVIDENCEPROOF 101 of both the
problem and the solution with scant regard to the body of empirical facts lying
beyond the corpus of those rules. Twining suggested that an analysis of identification
ought to be carried out at a level of abstraction that ‘combines elements of
contextual perspectives on legal process and some notions about information
processing borrowed from cognitive psychology’. The criminal procedure relating to
identification evidence still awaits this kind of attention and analysis. Twining
observed that many of those who endeavour to resolve the problem of mistaken
identification appear to adopt the view that the solution lies in effecting
improvements in the rules concerning the manner in which identification parades are
conducted.
Carson and Bull4 have suggested that the potential contribution of psychology to the
discipline of law lies in encouraging the lawyers to rethink issues and challenge
prevailing rules and practice. The relevant processes, both legal and cognitive, are
complex and warrant greater attention than can be devoted to them here. This
article is a rather ambitious attempt to demonstrate that psychologists' discoveries
concerning the functioning of memory suggest the need for a cohesive system of
legal safeguards. The principal objective is to demonstrate that a broad contextual
evaluation of English procedure dispels any notion that the safeguards it currently
affords offer robust protection against the risk of miscarriage of justice. The premise
of the arguments developed below lies in the extent to which a witness's memory is
susceptible to distortion as a result of encounters with other persons following the
witness's observation of events giving rise to criminal proceedings.
Memory processes
The range of factors that might affect the accuracy of any identification attempted by
an eyewitness is substantial. Numerous commentators have formulated taxonomies5
which include characteristics inherent in the witness, such as age,6 respective
ethnicity of witness and suspect,7 and degree of physiological arousal
*INTLJEVIDENCEPROOF 102 (as might occur when a violent event is
witnessed).8 Environmental factors also have the potential to affect accuracy, for
example, lighting conditions when the culprit is observed, the length of time that the
witness has the culprit in view,9 whether the offence involved the use of a
weapon.10 In providing structure to what would otherwise be a mere catalogue of
factors, Wells'11 categorisation of factors as either system variables or estimator
variables is of considerable importance for the evaluation and development of
criminal procedure.
Estimator variables describe those factors capable of affecting identification accuracy
that have an existence independent of anything that might be done by those
responsible for criminal justice system policy, and of the practices pursued by those
working in the system. Environmental circumstances, and the physiological
characteristics of witness and suspect, fall into this category.
In contrast, the term ‘system variable’ describes a phenomenon believed to affect
identification accuracy adversely which arises as a consequence of some conduct
engaged in by agents (essentially police officers) in the pre-trial process. These
include various forms of suggestive conduct engaged in by the agent while following
the prescriptions of formal rules or exercising discretion conferred for the purposes of
investigation.
In the context of estimator variables, so named because they are not controllable
and their influence can only be ‘estimated’,12 mitigating the risk of miscarriages of
justice requires an awareness of their potentially adverse effect on identification
*INTLJEVIDENCEPROOF 103 accuracy. To employ a medical analogy; if we
perceive mistaken identification as a disease, which in the criminal justice system we
want to eradicate, there are two strains. We are powerless to prevent the ‘estimator
strain’, the sources of which are the physical circumstances in which a culprit was
observed committing an offence or the physiological characteristics of the actors
involved. The most that the criminal justice system can do is to remain vigilant as to
its various symptoms and implement an effective screening programme in an
attempt to detect possible outbreaks of the disease.
The ‘system strain’ of the disease is a rather different matter. While the disease
remains difficult to diagnose outbreaks are caused by the practices and procedures
followed in the criminal process. It is, therefore, possible to take preventative
measures by adopting and adhering to appropriate regimens concerning the
treatment of eyewitness identification. Wherever there is interaction between a
number of witnesses, or police officers and witnesses, there is a danger that a
witness's memory and recollection of relevant events will be distorted.
There is a consensus among psychologists that the mind does not operate like a
video recording, whereby once events are stored in the memory they can be
recollected by accessing the discrete ‘part’ of the memory in which they are stored.
Memory processes appear much more complex than this. Researchers have proposed
models which differentiate different kinds of memory involving the processing of
information between the various modes.13 One manifestation of malfunctioning in
this process is the apparent malleability of memory.
One study, in which participants observed a stranger whom they were later asked to
describe, provides a vivid illustration of the danger of semantic suggestion on
witness recall.14 In the study, one group of witnesses were told by the interviewer
that the man was a truck driver while another group were told that he was a dancer.
Those who were told he was the former estimated his weight to be significantly
greater than those who were told he was the latter. Similarly, where interviewers
described the stranger as a ‘man’ estimates of his age were significantly higher than
when he was referred to as a ‘young man’. As Kohnken has explained, the
interviewee who experiences an event is unlikely to be able to perceive and encode
all available information.15 Any additional information *INTLJEVIDENCEPROOF
104 acquired from an interviewer might lead the witness to use general knowledge
and fall back on social expectations to fill ‘gaps’ in his recollection of events.
Perhaps of greater concern is that, where a witness is provided with incorrect
information regarding a previously observed event or culprit, it appears that the
manner in which information is processed can result in the witness recalling the
erroneous information as a fact he observed during the original event.16 In a study
conducted by Crombag and others,17 a number of people were interviewed about an
incident in which a cargo plane crashed into a block of apartments in Amsterdam.
Sixty per cent of the subjects stated that they had seen the plane colliding with the
building on television and provided answers to detailed questions about the
broadcast material, despite the fact that no one had captured any footage of the
crash occurring. The subjects appeared to have pieced together what they heard
about the crash from various sources, constructed a composite mental image of
events surrounding the disaster and were subsequently confident (and probably
convincing) in their claims to have watched it on television.
Questions remain as to whether, once a witness's memory has been distorted by the
provision of ‘misinformation’ following observation of an event, the unadulterated
memory of the original event can be retrieved. The view adopted in some quarters is
that some memories undergo irreversible transformations.18 This cognitive frailty
might pose a danger of mistaken identification occurring at numerous points in legal
proceedings. Any interaction between witness and police officer, or a witness with
other witnesses to the same event, provides an opportunity for an exchange of
information or a situation in which a witness might feel obliged to make an
identification or be encouraged to do so with less caution than might otherwise be
the case. This proposition is supported by studies which suggest that misleading
information given to a witness influences decisions made during identification
procedures and gives rise to an increased risk of misidentification.19
*INTLJEVIDENCEPROOF 105 Further dangers lie in the social pressure and
suggestion that flow from a witness's perception of the attitudes, conduct and
expectations of other witnesses and the police,20 or the provision of information not
perceived by the witness during the original event. The fact that the police arrest a
suspect and request a witness to attempt an identification is inherently suggestive. It
is reasonable, it is claimed, to expect that a witness will be inclined to act on the
inference that the police believe they have the culprit. In such circumstances the
witness will probably be less cautious and more willing to make a positive
identification. Consequently it is likely that identifications made under such
conditions are more susceptible to error.21 The problem might be exacerbated if the
witness were to be pressed by police officers to take part in identification procedures
following the arrest of a suspect. However, the pressure on a witness to make an
identification need not be confined to circumstances in which a suspect has been
arrested. Where police officers appear to the witness to be expending considerable
effort or exuding particular enthusiasm in their efforts to track down a culprit, the
witness may feel considerable social pressure to ‘do his bit’ and make an
identification when the police arrest a suspect.
If the risk of miscarriages of justice occurring because of mistaken identification is to
be reduced, then it is necessary that those who are responsible for policy and
developing prescriptive procedures, and those who have responsibility for evaluating
the sufficiency of identification evidence for various purposes, are aware of the
existence of the two sets of variables (system and estimator), the potentially adverse
effect that they might have on accuracy, and are sensitive to the implications for
policy and practice.
The criminal process
In most cases22 the trial is the culmination of a legal process comprising a series of
decisions and interactions engaged in by various parties to the proceedings. As
Twining notes:
… by the time a witness comes to testify at the trial he has typically ‘presented’ at
least some of his information on several occasions, for example in informal
conversation, in interviews with the police, with one or more lawyers… [t]his is why it
is useful to think in terms not merely of witnesses testifying…but of the creating and
processing of information.23
*INTLJEVIDENCEPROOF 106 These encounters will not necessarily constitute the
one-way flow of information from witness to other parties on matters relating to the
relevant event, which is suggested in this passage. Police officers might, variously or
cumulatively, have seen the person suspected of committing the offence; spoken to
other witnesses who have provided information about the event and offender;
formed their own views as to the guilt of the suspect; spoken to other officers who
have done either of these things, etc. These activities may well be necessary during
the course of an investigation, nevertheless, the potential for cross-pollination of
inaccurate information, the drawing of false inferences, and the resultant risk of error
is manifest. Nor are the potential risks restricted to encounters between witness and
police officers. Conversations between lawyers who might have seen other witness
statements, friends and relatives who might have heard rumours about what had
happened and who the culprit might be all give rise to danger that subsequent
recollection of events will be coloured by information (and misinformation) acquired
from other parties. As the process draws out the opportunity for such corruption
increases and the task of detecting it becomes more difficult.
The trial is a sub-optimal mechanism for inquiring into the reliability of identification
evidence. It has long been recognised that the traditional safeguards of crossexamination and witness demeanour are of little utility in assessing reliability.
Furthermore, in light of the malleable nature of memory, the effectiveness of
scrutinising identification evidence at trial is dependent on the extent to which past
events can be accurately recounted by various witnesses. Establishing that
encounters occurred between police and witness, and what transpired during them is
not particularly problematic where the police are placed under a duty to record
events. However, imposing a wide-ranging duty to record what occurs during every
encounter between a witness and police officer is neither practicable nor desirable
given the burden it would impose on police investigations.
Conducting procedures under controlled conditions provides the opportunity for
various records to be made by police and those representing the suspect's interests
and for an incontrovertible record to be made, for example a video recording of
events. In this respect they are capable of providing a ‘snapshot’ of considerable
probative value of the reliability of a witness's purported identification of a suspect.
They also provide a ‘sterile’ environment, one in which the possibility of bias and
suggestion is reduced to a considerable degree, in which we can be satisfied that the
identification was made in circumstances which largely minimised the risk of error. If
formal procedures provide a reliable snapshot of the accuracy of a witness's
identification in relation to the issue of error, what occurs thereafter would appear to
be of no significant consequence. *INTLJEVIDENCEPROOF 107 Attention can then
be focused, in the period leading up to formal procedures being held, on anything
that might have a bearing on reliability.
If formal procedures can be conducted within a relatively short period following the
witness's observation of the culprit, a number of benefits accrue and possibilities
arise. Not only is the witness's memory for events likely to be more accurate, but
there are likely to be fewer opportunities for an encounter between the witness and
other parties and, as a result, a reduction in the risk of memory contamination or
distortion. Moreover, the imposition of a strict duty to conduct procedures at the
earliest opportunity might render the imposition of a duty to record events during
this period less burdensome. Of course, this duty would have to be a variable one as
there are likely to be circumstances beyond the control of the police which result in
long delays in conducting procedure, for example those in which the suspect evades
detection or refuses to cooperate with attempts to conduct procedures. So to what
extent does English procedure address the concerns and implement the measures
considered above?
Pre-trial procedure in England and Wales
The pre-trial procedure concerning eyewitness identification in England and Wales is
largely contained in Code D of the Codes of Practice, issued by the Secretary of State
in fulfilling the duty imposed by s. 66 of the Police and Criminal Evidence Act 1984.
The Code consists of three broad sets of provisions:
1. prescribing how procedures for procuring eyewitness identifications under
controlled conditions (formal procedures) are to be conducted;
2. setting out when formal procedures are to be held (i.e. the circumstances in which
the police are required to hold them); and
3. a set of provisions regulating the way in which identification evidence should be
procured (i.e. by ‘street identifications’, discussed below) before any obligation to
hold formal procedures arise.
The Code imposes a duty on the police ‘in the interests of fairness to suspects and
witnesses’ to hold procedures as soon as practicable.24 The video identification
procedure enjoys primacy in the hierarchy of formal procedures25 established by
*INTLJEVIDENCEPROOF 108 the Code. This procedure involves the use of
moving images of the suspect in a compilation of images including those of at least
eight other people who ‘resemble the suspect in age, height, general appearance and
position in life’.26
Code D largely nullifies the threat of suggestion arising during formal procedures. It
also imposes various recording requirements. In respect of the formal procedures,
the officer conducting the procedure must ensure that witnesses are not able to
communicate with each other about the case or overhear a witness who has already
taken part in the procedure.27 The officer is prohibited from discussing the
composition of the video with the witness28 or the outcome of an attempt at
identification by another witness.29 Only one witness at a time is permitted to take
part in a procedure.30 Before any attempt at an identification, the officer conducting
the procedure is required to instruct the witness that the person seen committing the
offence may, or may not, appear in the procedure and if the witness cannot make a
positive identification he should say so.31 If a witness has previously viewed any
photograph, or computerised/artist's impression, he is not to be reminded of doing
so,32 and in any case the witness is to be asked after taking part in the procedure
whether he has seen any broadcast of published images or descriptions of individuals
suspected of committing the offence.33 There is a duty to record a multiplicity of
facts including (1) the first description of the culprit provided by the witness,34 (2)
the grounds of any objection by the suspect to the proposed procedures and, if
necessary, the reasons why it was not possible to overcome the grounds of the
objection,35 (3) anything said by the witness about any identifications or the
conduct of the procedure.36 Furthermore, there is a requirement that the conduct of
the procedure itself be video-recorded.37
The provisions of the Code concerning how procedures are to be conducted exhibit a
degree of sophistication that is probably unparalleled in the criminal procedure of any
other common law jurisdiction. In 1999, following a study concerning a
*INTLJEVIDENCEPROOF 109 number cases in which DNA evidence had been
used to exonerate individuals convicted primarily on the basis of eyewitness
testimony,38 the Office of Justice Programs of the US Department of Justice
convened a technical working group comprising police officers, legal practitioners and
researchers from the field of psychology. The group recognised that in the past,
‘procedures ha[d] not integrated the growing body of psychological knowledge
regarding eyewitness evidence with the practical demands of day-to-day law
enforcement’.39 Reviewing the recommendations contained in the guide, Eyewitness
Evidence: A Guide for Law Enforcement,40 that was produced by the working group,
one commentator ventured that with the exception of two of the recommendations41
‘existing regulations on identification in England and Wales either anticipate these
proposed rules or provide safeguards which go beyond their very modest
proposals’.42
Notwithstanding such plaudits, there is a danger of adopting too narrow a view in
evaluating existing safeguards, the adequacy of which can only be properly
evaluated in the context of the process as a whole. It has been argued here that
diagnosing mistaken identification becomes increasingly difficult as the legal process
draws out. The most effective means of tackling this problem lies in the pre-trial
procedures conducted under controlled conditions that are set out in Code D.
Unfortunately, the potency of these procedures is undermined on a number of
counts. The provisions concerning how the procedures are to be conducted, display
an admirable degree of sensitivity to the findings of empirical research. However,
there is little point in expending great effort in devising sophisticated diagnostic
procedures of intricate detail without devoting similar efforts to legislating carefully
for their application and enforcing adherence to the scheme. Similarly, the benefits
of conducting procedures under controlled conditions might be undermined if
insufficient attention is paid to regulating what happens in the process prior to any
question of these being conducted. It is to these problems that we now turn.
*INTLJEVIDENCEPROOF 110 Street identifications
The duty to conduct the formal procedures prescribed in Code D is triggered once the
police have a ‘known suspect’; that is, that the police have sufficient information to
justify the arrest of a person for involvement in the relevant offence.43 The Code
provides some guidance on the steps that may be taken where there is no ‘known
suspect’. Street identifications typically occur shortly after the event during which the
witness has observed the culprit. Where the police response is swift there exists a
possibility that the culprit could be found in the locality. A street identification might
arise where the witness, having been taken around the area, purports to identify the
culprit among those passing by. It might also occur in circumstances in which
officers, other than those who are in the company of the witness, happen across
someone who resembles the person described by the witness. If the specificity of the
description provided by the witness is such that the likelihood of there being more
than one person bearing a resemblance in the vicinity is remote, there might be
grounds for arrest on the basis of description alone. However, where the description
is more general, the officers might reasonably take the view that an arrest could not
be justified without the witness purporting to identify him as the offender. In such
circumstances an improptu confrontation would be arranged between witness and
suspect for this purpose.
The previous version of the Code (1995) contained inadequate guidance on the
procedures to be followed in attempting to procure a street identification.44 The
latest version (2003) offers some elaboration, requiring the police to make a detailed
record of events as soon as practicable, including, (1) details of the location in which
any identification took place (2) how it was made (3) the prevailing conditions, and
(4) anything said or done by the witness regarding the identification.45 Where there
are several witnesses it requires them to be kept separate and, where practicable,
taken to view the suspect independently.46 If one of the witnesses identifies the
suspect then formal identification procedures have to be adopted in respect of the
witnesses who have not had an opportunity to observe the suspect.47
*INTLJEVIDENCEPROOF 111 As noted, arranging for a witness to attempt to
identify a person ‘detained’ by the police is an inherently suggestive procedure and
there have been calls from the police for greater guidance on the procedure to be
followed in order to mitigate suggestiveness and avert the risk of any evidence being
excluded.48 In circumstances in which a person has been stopped by the police, all
possible steps ought to be taken to avoid giving the witness the impression either
that the person stopped is under arrest or is subject to such a degree of control by
the police that he must be strongly suspected by them to have committed the
relevant offence. Where practicable, officers standing with a detained suspect ought
to be in plain clothes and steps should be taken to ensure that uniformed officers
and marked police vehicles are not in the immediate vicinity. Furthermore, where a
suspect has been detained but it is asserted by the police that in the absence of a
street identification by the witness there would be insufficient grounds to make an
arrest, there is no requirement (equivalent to those that exist in respect of the
formal procedures) to warn the witness that the person that they are about to see
may or may not be the person seen a short time before and that if he cannot make a
positive identification he should say so. Given the particularly suggestive nature of
these encounters there is a case for issuing an even more emphatic warning.49
It must be appreciated that police officers required to carry out street identifications
are placed in an invidious position. The exigency of establishing, for investigative
purposes, whether those present at the scene were involved in the offence must be
tempered by precautions taken to ensure the reliability of any identification. It has
been pointed out that this demands a measure of detached reflection.50 In this
respect the provision of adequate guidance would appear to be particularly
important. The most recent version of the Code enjoins the police to ‘follow the
principles applicable to the formal procedures set out in the Code as far as
possible’.51 Implicit in this direction is that the guidance that is
*INTLJEVIDENCEPROOF 112 provided is less comprehensive than it ought to be.
It is unreasonable to expect officers, who in the very early stages of investigation are
required to take prompt and decisive action, to ensure that the steps they take are
grounded on principles that must distilled from various provisions of a Code of some
length and complexity.
The regimen established in Code D concerning the steps that the police ought to take
in these circumstances is inadequate and it is submitted that such encounters are
attended by a significant risk of an outbreak of the system strain of the
misidentification disease. Whether holding formal procedures following a street
identification is effective in screening for unreliable street identifications made by
witnesses has proved a rather vexed issue for the English courts52 and one that will
not be considered further here.
Diminishing due process: the growing influence of crime control
values
Recent development of Code D is consistent with a general trend that some
commentators have identified in the evolution of the criminal procedure comprised in
the Police and Criminal Evidence Act 1984 and the Codes of Practice issued under the
Act. Sanders and Young53 have argued that the Act was introduced at a time when
criminal justice was steadily becoming more illiberal in line with a general drift
towards a ‘law and order’ society54 and was seen as being necessary to deal with
discontent and disorder created within large disadvantaged sections of the
community.55 Against this backdrop they suggest that PACE could not have been
intended to inhibit the ability of the police to deal with crime and disorder.
Though subject to some criticism on the grounds that they represent an oversimplification of what is, in fact, a complex structure,56 Packer's crime control and
due process models of criminal justice remain useful evaluative concepts.57 Briefly,
the emphasis of crime control is on achieving a high rate of apprehension and
conviction of offenders. In order to achieve this, a premium is put on efficiency in
terms of speed, which depends on informality. It is assumed that the police will
exercise judgment to filter out innocent suspects at an early stage of the process,
and those who are probably guilty pass quickly through the remaining
*INTLJEVIDENCEPROOF 113 stages of the process, in this respect it is a
managerial model. If there is confidence in the reliability of informal fact-finding in
the early stages of the criminal process, the remaining stages can be performed
relatively perfunctorily. The due process model is the procedural antithesis of crime
control. Its premise is that no such confidence can be placed in informal nonadjudicative fact-finding. It is susceptible to error and demands the prevention and
elimination of mistakes to the extent possible. The process exists as much to protect
the factually innocent as to convict the factually guilty and efficiency in terms of
throughput of cases must be tempered by measures that reduce the risk of error.
During the period to which their observations are related, Sanders and Young
claimed that, although at every level of criminal justice system due process and
crime control values seemed ‘intertwined often in contradictory ways’, it appeared
that the conflicts were gradually being resolved by a movement in a crime control
direction.58
The first version of the Code (1986) placed the police under a duty to hold a parade
whenever the suspect made a request that one be held.59 The second revision
(1995) imposed a duty to conduct procedures whenever the suspect disputed
identification and consented to procedures being held, irrespective of whether or not
the suspect requested that they be conducted.60 This version of the Code might be
described as paternalistic and can be viewed as the high watermark of procedural
due process.
The most recent revision of the Codes of Practice (2003) represent an extension of
inquisitorial powers that have been conferred on the police in recent years with ‘the
accused … increasingly seen as the subject of a police inquiry, … the product of which
is available for use by the prosecution for adversarial purposes’.61 The changes
effected in Code D bear many of the hallmarks of Packer's crime control model. Many
of the amendments were previewed in temporary modifications to the Code issued in
2002.62 These were accompanied by a letter explaining that the changes had been
made with the objective of speeding up the process:
It is becoming increasingly apparent that problems in arranging identification
parades within a reasonable period of time have *INTLJEVIDENCEPROOF
114 contributed significantly to delays in processing cases and such delays can
impact upon the quality of evidence and compromise the whole process of justice.
Ministers are understandably concerned and want to take immediate measures to
tackle these problems.63
With regard to the assertion that recent reform of Code D is firmly grounded in crime
control values, this statement might be seen as ambivalent if viewed in isolation. Its
references to reducing delay, or in other words increasing efficiency in terms of
speed (crime control values), are offset by a reference to improving the ‘quality of
evidence’, which presumably means ensuring that reliable identification evidence is
obtained (a due process value, of course). However, under the current version of the
Code, the police may decline to hold procedures where doing so would ‘serve no
useful purpose in proving or disproving whether the suspect was involved in
committing the offence’. This casts the police in the role of arbiter of whether the
objective of adjudicative accuracy at a later stage in the proceedings would be
furthered by holding an identification procedure. The drafters of the Code have
turned away from the imposition of a procedural burden imposed for the purpose of
reducing the risk of error, to a managerial process in which the police are given
considerable discretion to dispense with a burdensome and time-consuming
procedural hurdle. The merits and implications of this development cannot be
considered at length here,64 but worthy of note is that this involves the police in a
speculative, probabilistic exercise: whether the police are best equipped to undertake
such an exercise is something we might reasonably question.
The changes implemented in the most recent revision of Code D (2003) might be a
precursor to a period of rapid and significant growth in the influence of crime control
values in shaping the contours of English criminal procedure. In 2002, the Home
Office and Cabinet Office undertook a review of the Police and Criminal Evidence Act
and the Codes of Practice. Its terms of reference were to identify changes in
procedure that could (1) simplify police procedures, (2) reduce procedural or
administrative burdens on the police; (3) save police resources, and (4) speed up
the process of justice.65 In the Report of the Review, which was
*INTLJEVIDENCEPROOF 115 the subject of vehement criticism,66 it was
suggested that the Codes of Practice ‘could be given a structure based on outcome
rather than process, leaving the police with more scope to use their professional
judgment’.67 The congruence of this suggestion and the notion of ‘efficiency’
expounded in Packer's paradigm crime control model is both glaring and
unsurprising, given that the Review's terms of reference amounted to an agenda for
reform driven by the values underlying the model.
Procedural due process requirements provide a means of ensuring the protection of a
suspect's fundamental interests. If one rejects as illusory the idea that it is possible
to ‘balance’ the competing value systems68 in some sort of equilibrium, then one
must also accept that there is a danger that any shift in emphasis towards the crime
control values of procedural informality in the guise of reducing procedural and
administrative ‘burdens’ can only be achieved by some diminution in protection
against wrongful conviction (or least a significant risk that such protection will be
eroded).
Policing adherence to the pre-trial regulatory regime
Atomistic evaluation of the adequacy of safeguards against the risk of mistaken
identification is of limited value. It has been argued above that pre-trial procedures
which ensure that identifications are procured under conditions that minimise the risk
of error are the most effective safeguards that we have at our disposal.
If pre-trial procedure provides the most effective available means of guarding
against the risk of mistaken identification, then once its prescriptions are developed
to a satisfactory state, their importance ought to be reflected in the means of
ensuring compliance with them. In an article that appeared in this journal, Ian
McKenzie suggested that guidance recently issued to police officers in the United
States69 would be of limited effect in the absence of sanctions for non-compliance.
Code D was used as a comparator in respect of which it was claimed that a breach
might be followed by a number of sanctions. It was asserted that any police officer
responsible for a breach might be subjected to disciplinary proceedings, that any
breach
might
be
admissible
in
criminal
or
civil
proceedings
*INTLJEVIDENCEPROOF 116 and that a serious breach would ‘unfailingly’ lead to
evidence being excluded. The position in English law might not be as straightforward
as that which McKenzie appears to set out.
Although s. 67(8) of PACE originally provided that an officer would be liable to
disciplinary proceedings for any breach of the Codes of Practice, this provision was
repealed by s. 37 of the Police and Magistrates' Courts Act 1994.70 As for the threat
that breaches of the Codes of Practice might be admissible in evidence in subsequent
criminal or civil proceedings, s. 67(10) of PACE makes clear that a breach of the
Codes will not of itself render the officer who commits the breach liable to criminal or
civil proceedings. In the context of Code D, it is not at all obvious how evidence of a
breach might be relevant to future criminal proceedings against an officer.71
Moreover, beyond the possibility that a breach of the Code's provisions concerning
covert identification procedures giving rise to a breach of Article 8 of the European
Convention on Human Rights (the right to respect for private and family life) might
result in damages being awarded, it is difficult to envisage circumstances in which a
breach of Code D might give rise to an actionable tort. This leaves the claim that
‘serious breaches will unfailingly’ lead to evidence being excluded.72
The provisions of Code D that set out how formal procedures conditions are to be
carried out are admirably clear and detailed. Its provisions concerning when these
procedures ought to be held are vague, and those concerning street identifications
are inadequate. No one has yet undertaken a thorough review of appeal cases
involving submissions that evidence of identification ought to have been excluded
following some breach of the Code. However, a cursory review of recent cases
suggests that the circumstances surrounding the conduct of formal procedures are
few and that the greater proportion concern the reliability of street identifications73
and the failure of the police to conduct formal procedures.74
In respect of the exclusion of evidence of street identifications, the courts,
recognising the difficulties faced by the police in these circumstances, appear
*INTLJEVIDENCEPROOF 117 reluctant to find a breach of the Code's provisions.
Even where such a breach is found identifications conducted under what appear to
be the most suggestive of circumstances will not necessarily be excluded. It is not
unusual for the appellate courts merely to recite factors in the circumstances
surrounding an identification before declaring that the identification of the defendant
was untainted or free of the risk of unreliability. Generally no comment is made on
whether the factors stated have been considered relevant to the issue of reliability,
whether or not they have been taken to be indicative of reliability or unreliability,
and the weight that has been accorded to them.
For example, in R v Williams,75 a case recently heard by the Court of Appeal, a
woman waiting at a bus stop became the victim of an attempted robbery during
which the culprit struck up a conversation which became more menacing and
culminated with a demand for cash and jewellery and a threat to stab her with a
hypodermic needle. She managed to escape and call the police. She provided a
description by telephone and then went to the house of a relative. That description
was of a clean-shaven man with a London accent wearing black or dark blue
trousers, a black jacket with black zip and brown shoes. The police making their way
to the scene saw and gave chase to a man who was eventually detained on the roof
of a factory. This man spoke with a distinctly different Glasgow accent, had two to
three days stubble on his face, was wearing black trousers and a black jacket which
had a brass zip, and black, not brown, shoes. The officers who detained the suspect
were told of the culprit's threat to stab the victim with a hypodermic needle. As a
result he was handcuffed. The victim was driven to a place where she saw the
handcuffed suspect standing by a police car surrounded by police officers. She
observed him from a distance of about 10 metres and stated that she was positive
that he was the culprit. The court accepted that there had been a breach of the
Code. It ‘mattered not’ whether this was because the police had a ‘known suspect’,
in which case formal procedures ought to have been held, or that they had breached
the provision stating that ‘care must be taken not to direct the witness's attention to
any individual unless, taking into account all the circumstances, this cannot be
avoided’.76 The court acknowledged the suggestiveness of the procedures adopted,
stating that ‘a clearer way of pointing out to her who it was that the police sought
her to identify could not have been imagined’.77 Notwithstanding this, it was held
that the trial judge's decision not to exclude the evidence was correct and the
conviction was safe.
*INTLJEVIDENCEPROOF 118 This case, in which the prosecution case rested on
identification evidence of questionable reliability following breaches of the Code, is
not atypical. It is suggested that a thorough review of the authorities would not
reveal that what might be thought of as ‘serious’ breaches of the Code ‘unfailingly’
lead to the exclusion of evidence. The basis of exclusion is the effect that the
evidence on which the prosecution seek to rely would have on the fairness of the
proceedings. The problems of accurately reconstructing past events to establish
whether witnesses recollections have been distorted by suggestive conduct have
been alluded to above. However, Williams illustrates that even evidence obtained in
breach of Code D, in circumstances that are clearly suggestive, which are attended
by a high risk of error, will not necessarily be excluded. Although exclusion for any
breach of the Code, however minor, is not advocated here,78 decisions not to
exclude evidence in circumstances such as those in Williams indicate an insensitivity
to importance of pre-trial procedures in reducing the risk of mistaken identification.
Moreover, if repeated such decisions might have an insidious effect on police
compliance with the provisions of the Code.
The Court of Appeal in R v Forbes79 stated explicitly that the s. 78 discretion should
not be exercised as a means of disciplining the police for failing to hold a formal
procedure.80 However, in absence of using the discretion for this purpose, there is
no effective sanction attached to a breach. The significance of this, as Schauer
explains, is that the strength of any regulatory provision lies in the conditions
surrounding its applicability, acceptance and performance.81 In other words its
strength comes from the sanctions that attach to any violation of it. If the police
perceive that the courts usually allow the prosecution to adduce identification
evidence obtained in breach of the Code the option of non-compliance becomes more
available and attractive. Why should they spend the time and effort necessary to
comply with the provisions if it is likely that no adverse consequences will flow from
any breach? Salembier observes; ‘In such circumstances a participant's actions cease
to be guided by the rules and instead become dependent on its knowledge of
enforcement proclivities.’82 The result is an undermining of the regulatory regime.
*INTLJEVIDENCEPROOF 119 It is necessary to add one significant caveat. The
greater any trend towards replacing the Code's bright-line or hard-edged rules with
provisions that confer on the police wider scope to use their professional judgment,
the less relevant any consideration of enforcing compliance with the Code will
become. Enforcing compliance with the provisions of the Code is a worthwhile pursuit
only where following them serves to improve the chances of securing reliable witness
identifications. It was suggested earlier that this is objective is more likely to be met
through issuing prescriptions to the police than the conferring discretion upon them.
Conclusion
It is important that we should avoid the seductive notion that because considerable
efforts have gone into developing some aspects of pre-trial procedure that our
response to the problem of mistaken identification is satisfactory and miscarriages of
justice are now a remote possibility. The nature of memory illustrates the importance
of the regulation of pre-trial procedure, particularly at an early stage of the
investigative process. It has been suggested above that identification procedures
conducted under controlled procedures represent the most effective means of
safeguarding against the risk of miscarriages of justice resulting from mistaken
identifications. However, their effectiveness can be undermined by inadequate
regulation of events prior to the formal procedure. While recent reform of English
procedure has provided greater regulation of what might occur prior to formal
identification procedures, the source of that regulation, Code D, implies that what is
provided remains inadequate. The Code provides for admirable formal identification
procedures that appear sensitive to the empirical findings of psychologists and where
employed are likely to reduce significantly the risk of mistaken identification.
However, changes to the provisions regulating when such procedures must be held
simply gives rise to an increased risk at another point of the process. The importance
of pre-trial procedure as a safeguard requires that departures from it be taken
seriously. Unfortunately, the position in England and Wales is that the response of
the Court of Appeal to such occurrences is at best ambivalent. Viewed from a broad
perspective, the spectre
identification remains.
of
miscarriage
of
justice
resulting
from
mistaken
I am indebted to David Ormerod and Diane Birch for their insightful comments on
earlier drafts of this work. I remain solely responsible for errors and deficiencies.
E. & P. 2004, 8(2), 100-119
1.
W. Twining, Rethinking Evidence: Exploratory Essays (Northwestern University
Press: Evanston, IL, 1994) (first published in 1990 by Basil Blackwell Ltd).
2.
Ibid. at 153.
3.
Ibid. at 156.
4.
D. Carson and R. Bull, ‘Psychology and Law: Future Directions’ in R. Bull and D.
Carson (eds), Handbook of Psychology in Legal Contexts, 1st edn (Wiley: Chichester,
1995) 646.
5.
See generally, P. Ainsworth, Psychology, Law and Eyewitness Testimony (Wiley:
Chichester, 1998) 35-48; A. Kapardis, Psychology and Law, 2nd edn (Cambridge
University Press: Cambridge, 2003) 36-47; B. Cutler and S. Penrod, Mistaken
Identification: The Eyewitness, Psychology, and the Law (Cambridge University
Press: Cambridge, 1995) 79-136.
6.
It appears that identification accuracy is poorest among the relatively young and
older witnesses. The findings of a number of studies indicate a significant decline in
the performance of those aged 60+, see e.g. T. O' Rourke, S. Penrod, B. Cutler and
T. Stuve, ‘The External Validity of Eyewitness Identification Research: Generalising
Across Subject Populations’ (1989) 13 Law and Human Behavior 385.
7.
Studies indicate greater accuracy where witness and subject are of the same ethnic
appearance; see R. Bothwell, J. Brigham and R. Malpass, ‘Cross-Racial Identification’
(1989) 15 Personality and Social Psychology Bulletin 19; G. Wells and E. Olsen, ‘The
Other-Race Effect in Eyewitness Identification: What Can We Do About It?’ (2001) 7
Psychology, Public Policy and Law 230. For analysis of US procedural safeguards in
this respect, see R. Natarajan, ‘Racialized Memory and Reliability: Due Process
Applied to Cross-Racial Eyewitness Identifications’ (2002) 78 New York University
Law Review 1821; and in England and Wales, see T. Valentine, N. Harris, A. Colom
Piera and S. Darling (2003), ‘Are Police Video Identifications Fair to AfricanCaribbean Suspects?’ (2003) 17 Applied Cognitive Psychology 459.
8.
Although there have been conflicting findings there is evidence that high levels of
stress experienced during observation of an event can have an adverse effect on
memory, see generally Kapardis, above n. 5 at 40-4.
9.
Kapardis, above n. 5 at 38, has cautioned against the common-sense assumption
that the identification accuracy is likely to increase in line with duration of
observation on the grounds of selective attention. It appears that witnesses who
experience stress during observation tend to over-estimate the duration of the
event, see I. Sarason and R. Stroops, ‘Test Anxiety and the Passage of Time’ (1978)
46 Journal of Consulting and Clinical Psychology 189; B. Cutler, S. Penrod and T.
Martens, ‘The Reliability of Eyewitness Identifications: The Role of System and
Estimator Variables’ (1987), 11 Law and Human Behavior 223.
10.
See Cutler, Penrod and Martens, above n. 9; E. Loftus, G. Loftus and J. Messo,
‘Some Facts About “Weapon Focus”’ (1987) 11 Law and Human Behavior 55; N.
Steblay, ‘A Meta-Analytic Review of the Weapon Focus Effect’ (1992) 16 Law and
Human Behavior 413.
11.
G. Wells, ‘Applied Eyewitness Research: System Variables and Estimator Variables’
(1978) 36 Journal of Personality and Social Psychology 1546; G. Wells, Eyewitness
Identification: A System Handbook (Carswell: Toronto, 1988) 13-23
12.
Wells (1988) above n. 11 at 13.
13.
R. Atkinson and R. Shiffrin, ‘Human Memory: A Proposed System and its Control
Processes’ in K. Spence and J. Spence, The Psychology of Learning and Motivation:
Advances in Research and Theory, vol. 2 (Academic Press: 1968).
14.
R. Christiansen, J. Sweeney and K. Ochalek, ‘Influencing Eyewitness Descriptions’
(1983) 7 Law and Human Behavior 59.
15.
See G. Kohnken, ‘Interviewing Adults’ in R. Bull and D. Carson (eds), Handbook of
Psychology in Legal Contexts, 1st edn (Wiley: Chichester, 1995) 218.
16.
See, e.g., G. Mazzoni, M. Vannucci and E. Loftus, ‘Misremembering Story Material’
(1999) 4 Legal and Criminological Psychology 93; see generally G. Davies,
‘Contamination of Witness Memory’ in A. Heaton-Armstrong, E. Shepherd and D.
Wolchover (eds), Analysing Witness Testimony (Blackstone: London, 1999).
17.
H. Crombag, W. Wagenaar and P. van Koppen, ‘Crashing Memories and the Problem
of “Source Monitoring”’ (1996) 10 Applied Cognitive Psychology 95.
18.
See E. Loftus and G. Loftus, ‘On the Permanence of Stored Information in the Human
Brain’ (1980) 35 American Psychologist 409. See also D. Hall, E. Loftus and J.
Tousignant, ‘Post-event Information and Changes in Recollection for a Natural Event’
in E. Loftus (ed.), Eyewitness Testimony (Cambridge University Press: Cambridge,
1984).
19.
See J. Searcy, J. Bartlett and A. Memon, ‘Influence of Post-Event Narratives, Line-up
Conditions and Individual Differences on False Identification by Young and Older
Eyewitness’ (2000) 5 Legal and Criminological Psychology 219.
20.
See Penrod and Cutler, above n. 5 at 114.
21.
Ibid. at 113.
22.
Of course, some cases will be subject to appeal.
23.
Twining, above n. 1 at 165.
24.
Code D, para. 3.11.
25.
Code D provides that an identification parade may be used where a video
identification is not practicable, or a parade would be more suitable, see Code D,
para. 3.14. A group identification procedure may be conducted where it is considered
more suitable than a video identification or identification parade, see Code D, para.
3.16. Detailed provisions concerning the manner in which video identifications,
identification parades and group identifications are to be conducted can be found in
Annexes A, B and C of Code D respectively.
26.
Code D, Annex A, para. 2.
27.
In the case of video identification: Code D, Annex A, para. 10.
28.
Video identification: Code D, Annex A, para. 10; Identification parade, Code D,
Annex B, para. 15.
29.
Ibid.
30.
Video identification, Code D, Annex A, para. 11; Identification parade, Code D,
Annex B, para. 16.
31.
Video identification, Code D, Annex A, para. 11; Identification parade, Code D,
Annex B, para. 16.
32.
Video identification: Code D, Annex A, para. 13; Identification parade: Code D,
Annex B, para. 20.
33.
Video identification: Code D, Annex A, para. 14; Identification parade: Code D,
Annex B, para. 21.
34.
Code D, para. 3.1
35.
Video identification: Code D, Annex A, para. 7; Identification parade: Code D, Annex
B, para. 12.
36.
Video identification: Code D, Annex A, para. 18; Identification parade: Code D,
Annex B, para. 28.
37.
Identification parade: Code D, Annex B, para. 23. If a video identification procedure
is used, then a video recording of the procedure is only necessary where the
suspect's legal representative is not present, Code D, Annex B, para. 9.
38.
See E. Connors et al., Convicted by Juries, Exonerated by Science: Case Studies in
the Use of DNA Evidence to Establish Innocence After Trial (National Institute of
Justice: Washington, DC, 1996).
39.
Eyewitness Evidence: A Guide for Law Enforcement (US Department of Justice, Office
of Justice Programs: 1999).
40.
Ibid.
41.
These are the recommendations that (1) the person who conducts the procedure
should not know which person is the suspect, and (2) the confidence that a witness
holds in any identification made be recorded.
42.
G. Davies and T. Valentine, ‘Codes of Practice for Identification’ (1999) 7 Expert
Evidence 59. See also M. Kebbell, ‘The Law Concerning the Conduct of Lineups in
England and Wales: How Well Does It Satisfy the Recommendations of the American
Psychology Law Society? (2000) 24 Law and Human Behavior 309, and I. McKenzie,
‘Eyewitness Evidence: Will the United States Guide for Law Enforcement Make Any
Difference? (2003) 7 E & P 237.
43.
Code D, para. 3.4 (2003).
44.
Code D, para. 2.17 (1995), ‘A police officer may take a witness to a particular
neighbourhood or place to see whether he can identify the person whom he said he
saw on the relevant occasion. Before doing so, where practicable a record shall be
made of any of the suspect. Care should be taken not to direct the witness's
attention to any individual.’
45.
Code D, para. 3.2(d).
46.
Code D, para. 3.2(c).
47.
Code D, para. 3.2(d).
48.
See A. Slater, The Universal Video Booth: Planned and Tested, Police Research
Award Scheme (Home Office, Policing and Reducing Crime Unit: 1999) 18-23; G.
Pike, N. Brace and S. Kynan, The Visual Identification of Suspects: Procedures and
Practice, Briefing Note 2/02 (Home Office, Policing and Reducing Crime Unit: 2002),
who reported that a majority of police officers interviewed on the subject of
improving identification procedures felt that current guidance on street identifications
could be improved. For an example of a case in which the procedures adopted by the
police appear poor, see R v O'Brien [2003] EWCA Crim 1370 (see commentary by A.
Roberts (2003) 68 JCL 27).
49.
The Technical Working Group of the US National Institute of Justice, above n. 38,
recommended that the witness should be told that: ‘It is as important to clear
innocent persons from suspicion as to identify guilty parties’, ‘The person who
committed the crime may or may not be present’ and ‘Regardless of whether or not
an identification is made, the police will continue to investigate the incident’.
50.
See D. Birch, commentary on R v Hickin [1996] Crim LR 584 at 586.
51.
Code D, para. 3.2.
52.
See R v Popat [1998] 2 Cr App R 208; R v Forbes [1999] 2 Cr App R 501, CA; R v
Popat (No. 2) [2000] 1 Cr App R 387; R v Forbes [2001] 1 Cr App R 430, HL.
53.
A. Sanders and R. Young, ‘The Rule of Law, Due Process and Pre-Trial Criminal
Justice’ (1994) 47 Current Legal Problems 125.
54.
See M. Freeman, ‘Law and Order in 1984’ (1984) 37 Current Legal Problems 175.
55.
Sanders and Young, above n. 53 at 129.
56.
Some of these are summarised by A. Ashworth, The Criminal Process: An Evaluative
Study (Oxford University Press: 1998) 27-8.
57.
H. Packer, Limits of the Criminal Sanction (Stanford University Press: 1968); see
also A. Sanders and R. Young, Criminal Justice, 2nd edn (Butterworths: London,
2000) 22-32.
58.
Sanders and Young, above n. 53; R. Young and A. Sanders, ‘Royal Commission on
Criminal Justice: A Confidence Trick?’ (1994) 14 Oxford Journal of Legal Studies 435.
59.
Code D, para. 2.1.
60.
Code D, para. 2.3.
61.
See E. Cape, ‘The Revised PACE Codes of Practice: A Further Step Towards
Inquisitorialism’ [2003] Crim LR 355.
62.
PACE (Codes of Practice) (Temporary Modifications to Code D) Order 2002 (SI 2002
No. 615).
63.
‘Identification Procedures: Introduction of Changes to Section 2 of PACE Code D’,
Home Office, Police Leadership and Powers Unit, 25 March 2002.
64.
For analysis, see A. Roberts, ‘Identification Evidence: Rule, Principle, Discretion and
Reform of Code D after Forbes ’ (2002) 66 JCL 250; A. Roberts and S. Clover,
‘Managerialism and Myopia: The Government's Consultation Draft on PACE Code D’
[2002] Crim LR 883; D. Wolchover and A. Heaton-Armstrong, ‘Farewell to Forbes ’
(2003) 7 Archbold News 4; P. Bogan, ‘Forbes Alive and Well’ (2003) 9 Archbold News
5; D. Wolchover and A. Heaton-Armstrong ‘A Reply to ‘Forbes Alive and Well” (2003)
9 Archbold News 6.
65.
Report of the Joint Home Office/Cabinet Office Review of the Police and Criminal
Evidence Act 1984 (Home Office/Cabinet Office: 2002) at para. 2.
66.
See M. Zander, ‘The Joint Review of PACE: A Deplorable Report’ (2003) 153 NLJ 204.
67.
Joint Review, above n. 65 at 14.
68.
See Ashworth, above n. 56 at 30: ‘This is a rhetorical device of which one must be
extremely wary. At worst it is a substitute for argument: “achieving a balance” is put
forward as if it were self-evidently a worthy and respectable goal … [M]any of those
who employ this terminology fail to stipulate exactly what is being balanced, what
factors and interests are being included or excluded, what weight is being assigned
to particular values, and so on. Where this occurs it amounts to self-delusion or
intellectual dishonesty.’
69.
Above n. 42.
70.
M. Zander, The Police and Criminal Evidence Act 1984, 4th edn (Sweet & Maxwell:
London, 2003) para. 6-18 suggests that this was due mainly to the findings of the
Runciman Commission on Criminal Justice, Cm 2263 (1993) 48, para. 102 and that
there were ‘hardly any’ disciplinary proceedings for breaches of PACE.
71.
Particularly in view of the fact that any unwillingness to take part in procedures can
not be overcome by means of physical coercion, see R v Jones (Derek), The Times
(21 April 1999).
72.
See McKenzie, above n. 42 at 256.
73.
See e.g. R v Williams [2003] EWCA Crim 3200; R v O'Brien [2003] EWCA Crim 1370.
74.
R v Lambert [2004] All ER (D) 48 Jan; R v Noonan [2003] EWCA Crim 3869; R v DPP
[2003] EWHC Admin 3074 ; R v Harris [2003] EWCA Crim 174; K v DPP [2003]
EWHC Admin 351; R v Lydiate [2004] EWCA Crim 245.
75.
[2003] EWCA Crim 3200.
76.
Paragraph 2.26(b) of the provisions that were temporarily in force at the time of the
offence, see Police and Criminal Evidence Act 1984 (Codes of Practice) (Temporary
Modifications to Code D) Order 2002 (SI 2002 No. 615). The corresponding provision
is found in para. 3.2(b) of the version of the Code issued in 2003.
77.
R v Williams [2003] EWCA Crim 3200 at [12].
78.
Exclusion of evidence in cases of a breach of the Code is a vexed issue, which it is
not possible to address here. However, one possibility that might be examined is the
identification of certain of the Code's provisions as ‘keystones’ and making breach of
these provisions subject to a statutory presumption of exclusion with, perhaps, an
inclusionary discretion.
79.
[1999] 2 Cr App R 501.
80.
Ibid. at 517C, per Laws LJ.
81.
See F. Schauer, Playing by the Rules: A Philosophical Examination of Rule-Based
Decision-Making in Law and in Life (Clarendon Press: Oxford, 1991) 122-34.
82.
J. P. Salembier, ‘Designing Regulatory Systems: A Template for Regulatory RuleMaking’ (2002) 23 Statute Law Review 165-90 at 177.
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