VISUAL
IDENTIFICATION
PROCEDURES
UNDER PACE CODE D
DAVID WOLCHOVER
WWW.DAVIDWOLCHOVER.CO.UK
VISUAL IDENTIFICATION PROCEDURES
UNDER PACE CODE D
DAVID WOLCHOVER
Of Gray’s Inn, Barrister
Head of Chambers Emeritus at
Church Court Chambers,
Inner Temple, London EC4Y 7BL
www.DavidWolchover.co.uk
Published on-line at www.DavidWolchover.co.uk
(Expanded from an earlier version published on-line 26 November 2003)
Previously posted: 23/2/05; 11/3/ 05; 1/4/05; 5/7/05; 8/9/05;
20/10/05; 18/11/05; 20/6/06; 28/4/07; 18/05/07;
1/08/07; 11/11/07; 27/11/07; 15/01/08; 16/05/09; 10/12/09;
15/12/09; 12/02/11; 27/03/11; 22/09/15
This edition posted 4/10/2015
Readers should note that as a result of recent editing there may be some
discrepancies in cross referencing between particular passages of text or footnotes
and other such text footnotes of which lack of time has precluded amendment. It is
planned to complete that exercise in the near future.
© David Wolchover, www.davidwolchover.co.uk
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CONTENTS
Table of
Cases
Chapter 1
i
Visual Identification in
the Criminal Process
1
Chapter 2
Suspect’s Identity Not Known
27
Chapter 3
Suspect’s Identity Known
56
Chapter 4
Video Identification Parades
96
Chapter 5
The Evidence in Court
151
TABLE OF CASES
Please note that earlier discrepancies in
page references have been corrected
Attorney-General’s Reference (No. 2 of 2002) [2003] 1 Cr.App.R. 21 10, 13, 42
Castorina v Chief Constable of Surrey [1996] LGRR 241
14
Chapman v DPP (1988) 89 Cr.App. R. 190
14
Coulman v D.P.P. [1997] C.O.D. 91, D.C.
15, 43, 53
Cumming and others v Chief Constable of Northumbia Police
[2003] EWCA Civ 1884 99
16
Holland v. H.M. Advocate, The Times, June 1, 2005
151
Kajala v Noble (1982) 75 Cr.App.R. 149, D.C.
26
K v DPP [2003] EWHC 351 (Admin); [2003] 4 Archbold News 1
14, 66, 158
McKenna v. DPP [2005] 5 Archbold News 2
73
O’Hara v Chief Constable of the Royal Ulster Constabulary
[1997] 1 Cr.App.R. 447
14
Perry v United Kingdom (2003) E.C.H.R. No. 63737/00
92, 116
Powell v D.P.P [1992] RTR 270
157
R v Allen [1996] Crim.L.R. 426
28, 154, 157
R v Amin [2015] 631
19, 78
R v Anastasiou [1998] Crim.L.R. 67
69, 76
R v Aurelio Pop (2003) 147 S.J. 692
151
R v Bell [1998] Crim.L.R. 87
68, 71
R v Birch, Bryant and Crowley (1992) unreported CA 90/0947/Z3
146
R v Blenkinsop [1995] 1 Cr.App.R. 7
9, 43
R v Brizey (1994) unreported, 10 March
51
R v Brown [1991] Crim.L.R. 368
43, 70
R v Bush (1997) unreported, 27 January
15
R v Byron (1999) unreported, 12 February
58
R v Chen and others [2001] 5 Archbold News 3
66, 67
R v Christie [1914] AC 545
152
R v Clare and Peach [1995 2 Cr.App.R. 333
10, 43
R v Cole (2013) unreported July 5, C.A.
18
R v Conway (1990) 91 Cr.App.R. 142
73
R v Constantinou (1990) 91 Cr.App.R. 74, C.C.C.
34
R v Cook (1987) 84 Cr.App.R. 369
34
R v Crowe, unreported C.A. 6 March 1998
48
R v Dodson and Williams (1984) 79 Cr.App.R. 220
42
R v Downey [1995] 1 Cr.App.R. 547
43
R v Duggan (1998) unreported 16 June
48
R v Edwards (2006) 150 S.J. 570
151
R v El Hannachi and others [1998] 2 Cr.App.R. 226
14, 48, 68
R v Elson (1994) unreported, C.A. 94/0547/Y3
129, 145
i
TABLE OF CASES
R v Emiku [2003] EWCA Crim 2237
62
R v Finley [1993] Crim.L.R. 50
129, 159
R v Folan [2003] EWCA Crim 908
87, 94
R v Forbes [2001] 1 Cr.App.R. 4306
7, 13, 43, 69, 70, 73, 155, 159
R v Fowden and White [1982] Crim.L.R. 588
25, 40
R v Fuller (2000) unreported, 22 May
50, 158
R v Gall [1989] Crim.L.R. 745
111, 158
R v Gasper [2002] EWCA Crim 1764
85
R v Gayle [1999] 2 Cr.App.R. 130
61
R v George [2003] Crim L.R. 282
79, 83, 101, 153
R v Gojra and Dhir [2011] Crim.L.L. 311
63
R v Gornall 149 S.J. 300
16
R v Governor of Pentonville Prison ex p Voets [1986] 1W.L.R. 470
29
R v Graham [1994] Crim. L.R. 414
56
R v Grimer [1982] Crim.L.R. 674, C.A.
9
R v Harley (2000) unreported, 22 February
77
R v Harris [2003] EWCA Crim 174
58, 70, 72, 74, 105, 155, 158 159
R v Haynes [2004] EWCA Crim 390
73
R v Hickin [1996] Crim.L.R. 584
47, 50, 54, 55, 158
R v Hope, Limburn and Bleasdale [1994] Crim.L.R. 118
66
R v Jamel [1993] CrimL.R. 52
82
R v Jones and Nelson, The Times 21 April, 1999
57, 137
R v Jones and others (1994) 158 J.P. 293
44
R v Joseph [1994] Crim.L.R. 48
157
R v Kennedy (1992) unreported, C.A. 20 March, 90/02296/Y4
91, 96, 116, 125
R v Kitchen [1994] Crim.L.R. 684
14, 28, 77
R v Lamb (1980) 71 Cr.App.R. 198
28, 30
R v Lambert [2004] EWCA Crim 154; (2004) 68 J.C.L. 285
62, 63
R v Lariba [2015] Crim. L.R. 534, C.A.
39
R v Lennon (1999) 63 J.C.L. 459
55
R v Loveridge et al. [2001] 2 Cr.App.R. 29
92
R v Malashev [1997] Crim.L.R. 587
46
R v McCartney and others [2001] EWCA Crim 2283;
[2003] 6 Archbold News 2
62
R v McKay (1900) 91 Cr.App.R. 84; [1990] Crim.L.R. 338
152
R v McMath [1997] Crim.L.R. 586
48, 49, 66, 70
R v McNamara [1996] Crim.L.R. 750, C.A.
42
R v Maqsud Ali [1966] 1 Q.B. 688, C.A.
25
R v Marcus (Ruel) [2004] EWCA Crim 3387; [2004] All ER (D) 351
83,121
R v Maughan (Bernard), unreported, Wood Green Crown Court, T98 0680
147
R v Mendili [2001] EWCA Crim 757
126, 159
R v Meredith and Cowan [2001] EWCA Crim 1415
62
R v Miah [2001] EWCA Crim 2281
47
R v Morrisey (2014) 78 J.C.L. 460
42
ii
TABLE OF CASES
R v Moss [2011] Crim.L.R. 560
13, 39
R v Muhidinz (2005) 70 J.C.L. 197
66
R v Nagah (1991) 92 Cr.App.R. 344
158
R v Nicholson [2000] Cr.App.R. 182
58
R v Noonan [2003] EWCA Crim 3869
75
R v Nunes [2001] EWCA Crim 2283; 10 Archbold News 1
15, 53, 55, 70, 76
R v O’Brien et al. [1982] Crim.L.R. 746
34, 157
R v O’Leary and Lloyd-Evans 67 J.C.L. 115; CLW/03/16/5
66, 70
R v Okorudu [1982] Crim. L.R. 747
34
R v Osborne and Virtue [1973] 57 Cr.App.R. 297; [1973] Crim.L.R. 178
152
R v Oscar [1991] Crim.L.R. 778
73
R v Perry (2000) unreported, 3 April
116
R v Popat [1998] 2 Cr.App.R. 208
44, 58, 69, 154
R v Popat (No 2) [2000] 1 Cr.App.R. 387
69
R v Quinn [1995] 1 Cr.App.R. 480
111, 126, 159
R v Rogers [1993] Crim.L.R.386
16
R v Rutherford and Palmer (1994) 98 Cr.App.R. 191
58
R v Ryan [1992] Crim.L.R. 187
111
R v Shanmugarajah and Liberna [2015] 2 Cr.App.R. 215(14)
43, 62, 93
R v Slater [1995] 1 Cr.App.R. 584
66
R v Smith (Dean Martin) and others [2009] 1.Cr.App.R. 521 (36)
13, 39
R v Tolson (1864) 4 F. & F. 103
25
R v Turnbull (1977) 98 Cr.App.R. 313
2, 43, 66,132, 159
R v Vaughan (1997) The Independent 12 May
46, 47, 48, 55,158
R v Wait [1998] Crim. L.R. 68
44, 70
R v Walters [2001] EWCA Crim 1261
111
R v Williams [2000] unreported, February 22, C.A.
30
R v Williams [2003] EWCA 3200; (2003) SJ 1305
16
R v Williamson [2002] EWCA Crim 1809
73
R v Willoughby [1999] 2 Cr. App.R. 82
121, 142, 147
R v Wright [1994] Crim.L.R. 131
114
Ryan v D.P.P. (2000) unreported, 10 October
48
Taylor v Chief Constable of Cheshire (1987) 84 Cr,App.R. 191, D.C.
25, 26
Tido v The Queen, unreported, June 15, 2011
151
iii
Chapter 1
VISUAL IDENTIFICATION IN THE CRIMINAL
PROCESS
A. THE DAWNING OF ENLIGHTENMENT
Every criminal investigation involves the initial question of the offender’s identity.
In some cases the police will have little or no idea who may have perpetrated the
crime. In other cases they may quickly discover facts which bring a particular
individual under suspicion. Sometimes those grounds for suspicion will trigger a
confession. Often forensic science will be vital in proving identity and increasingly
science is displacing subjective testimony across a broad range of disciplines.
However, a very important instrument of proof of guilt remains, as it has always
been, that of establishing the identity of the culprit visually by eyewitnesses. In a
less sophisticated age, where the culprit was a stranger to the eyewitness and
someone fell under suspicion reliance would be placed on confronting the suspect
with the witness as a means of establishing that the suspect and the culprit were
one and the same person. Later, in court, the witness might or might not be asked
to confirm that he had earlier identified that person as the culprit. However, with or
without any refererence to an earlier identification, witnesses would almost
invariably be invited to say if they could see the person in the court room. Such a
studied avoidance of a leading question was entirely spurious, as if it would
neutralise the pointed effect upon the witness of the glaring presence of the
defendant sitting in the dock. (The formal identification of the accused in court in
this way later became known as a “dock identification.”) With enlightenment it
came to be appreciated that the force of suggestion was an innate deficiency of
blunt confrontation and in the view of the committee on identification evidence
chaired by Lord Devlin it was probably judicial criticism of its crudeness which
resulted in the emergence of the identification parade as the best practicable
palliative.1 The commentator C. H. Rolph pointed out that “the mists of antiquity
have closed over the date” when identification parades first emerged 2 but rules for
1
Report to the Secretary of State for the Home Department of the Departmental Committee on
Evidence of Identification in Criminal Cases, H.C. 338, 26 April 1976, paras 1.10 and 5.31. As will be
explained in the course of this treatise video identification parades have now superceded the traditional
live parade.
2
Personal Identity, London: Michael Joseph, 1957, p.32.
1
VISUAL IDENTIFICATION PROCEDURES UNDER PACE CODE D
conducting them have been traced at least as far back as a Metropolitan Police
Order of 24 March, 1860 following some remarks of the Assistant Judge at the
Middlesex Sessions.3 In the wake of the notorious case of Adolf Beck in 1904 4 the
Metropolitan Police revised their regulations, which in 1905 were commended by
the Home Secretary to all Chief Constables5 and from time to time thereafter,
typically following some cause célèbre or other,6 the rulesstrictly speaking
guidance principleswere refined and improved through amendments published
by Home Office circular. Then, following two notorious miscarriages of justice
involving mistaken visual identification, the Devlin committee was appointed to
consider the whole question of visual identification and issued their celebrated
report in 1976.7
Apart from examining the two cases in detail Devlin reviewed investigative
procedures for cases involving visual identification and the management at trial of
evidence relating to the issue of identification and focused attention on the
growing body of research into the psychology of identification. The report made a
number of recommendations, most prominent perhaps of which was that visual
identification should not normally be permitted to sustain a conviction unless
supported by substantial evidence of another sort. Inspired by Devlin, the Court of
Appeal, in R v Turnbull,8 issued guidance on the withdrawal of weak cases from
the jury and on the standard directions which juries were to be given about the
potential dangers involved in visual identification. However, the court stopped
3
Devlin Report, para. 5.29.
See Roughead, W. (ed.), The Trial of Adolf Beck, Notable British Trials, London: William Hodge,
1924; Report of the Committee of Enquiry into the case of Mr Adolf Beck, published 14 November
1904, Cd. 2315; Watson, E.R. (ed.), The Trial of Adolf Beck 1924. For a recent summary of the case see
Bogan, P., Identification: Investigation, trial and scientific evidence, London: Legal Action Group
2004, pp. 2-4. Another miscarriage of justice still often cited as an object lesson for mistaken
identification was the case of Oscar Slater, convicted of murder in 1909 but eventually cleared after
serving 19 years in prison: see Roughead, W. (ed.), The Trial of Oscar Slater, Notable British Trials,
London: William Hodge, 1929; Hunt, P, Oscar Slater, The Great Suspect, London: Carroll &
Nicholson, 1951. Both the Beck and Slater cases are described and discussed at length in Rolph, C.H.,
op. cit., caps. 6 and 7. For other works, academic and popular, on the dangers of visual identification
see Wall, P.M., Eye-Witness Identification in Criminal Cases, London: 1965; Brandon, R., and Davies,
C., Wrongful Imprisonment: Mistaken convictions and their consequences, London: Alen & Unwin,
1973, Chap. 2; Coles P., and Pringle, P., Can You Positively Identify this Man?: George Ince and the
Barn Murder, London: Andre Deutsch, 1974; Hain, P., Mistaken Identity, London: Quartet, 1976; Huff,
C.R., Ratner, A. And Sagarin, E., “Guilty until proven innocent: Wrongful conviction and public
policy,” (1986) 32 Crime and Delinquency 518-544; Cutler, B.L., and Penrod, S.D., Mistaken
Identification: The Eyewitness, Psychology and the Law, Cambridge: Cambridge University Press,
1995.
5
Devlin Report, para. 5.29. Prior to the Devlin Report the identification parade rules received close
attention in the report of the Royal Commission on Police Powers and Procedure, 1929, Cmd. 3297,
paras. 123-129.
6
See McKenzie, I., and Dunk, P., “Identification parades: psychological and practical realities,” in
Heaton-Armstrong, A., Shepherd, E., and Wolchover, D. (eds.), Analysing Witness Testimony, London:
Blackstone Press, 1999, pp 178-193, at p.179.
7
See above, note 1. The two cases were those of Luke Dougherty and Laszlo Virag.
8
(1977) 98 Cr.App.R. 313, C.A.
4
2
VISUAL IDENTIFICATION IN THE CRIMINAL PROCESS
short of declaring a rule requiring corroboration of such evidence and convictions
may be sustained, not merely in theory, but in practice too, on the evidence of a
visual identification alone. To attempt to understand what factors may have been
behind the court’s attitude it is necessary to move from history to a brief
consideration of human nature.
B. BALANCING ASSUMPTIONS ON ACCURACY AND ERROR
The visual recognition of a particular person from the memory of a previous
encounter will typically be based on one or more of a number of general features:
gender, age, build, height, hair, complexion, ethnicity, hair type and colour, to
specify most of the obvious ones. While any one of these may tend either to
remove a person from suspicion or point to the possibility that the person was the
offender, even in combination they can rarely if ever by themselves furnish proof
of guilt because there will be nothing uniquely distinctive about a person’s
appearance when described under these categories. However, it is the human face
which, visually (though self-evidently with far less certainty than in the case of a
fingerprint or DNA match) marks out an individual from almost every other person
on the planet. It may be an innate grasp of this fact which instils in each of us an
instinctive feeling that even if we cannot easily call it up into our mind’s eye we
never forget a face, once noticed, when we see it again and it may be a reflection
of that instinctive understanding that investigators, lawyers and jurors have tended
to believe in the general infallibility of face recognition.
In order to comprehend and thereby to try to prevent those breathtaking errors
of identification of the kind retailed earlier a growing body of psychologists have
been drawn to conduct a wide range of theoretical and empirical research on the
mental processes involved in recognition, particularly of the face. With the
accumulation of the number of published experimental studies, particularly those
based on staged crimes, the realisation has grown that false identifications
following dramatic events are by no means uncommon. 9 Large scale studies of
actual cases have seemed to bear this out. 10 As a result of this research the old-time
blind faith in the absolute reliability of facial identification has given way, in the
mind of some populist commentators, to the contrary dogma that practically no
9
McKenzie and Dunk, supra, p.179.
In a United States study of 1,000 convictions of innocent persons eyewitness identification error was
found to be the single most important factor: Wells G.L., ‘What do we know about eyewitness
identification?’ (1993) American Psychologist, vol. 48, pp.553-571. The US Innocence Project
documents mistaken identification as a factor in the wrongful conviction of 61 of the first 70 (87 pc) of
a total (by August 2005) of 161 cases of exoneration by D.N.A. evidence which had not been available
at trial: http://www.innocenceproject.org., cited by Valentine, T., ‘Forensic Facial Identification,’ in
Heaton-Armstrong, A., Shepherd, E., Gudjonsson, G., and Wolchover, D. (eds.) Witness Testimony:
Psychological, Investigative and Evidential Perspectives, Oxford: OUP, 2006, chap 17. Similar projects
have been instituted in Australia (see http://www.gu.edu.au/school/law/innocence/network/network.
html and the UK (see http://www.innocentnetwork.org.uk/). See also Scheck, B., Neufield, P. and
Dwyer, J., Actual Innocence, New York: Doubleday, 2000.
10
3
VISUAL IDENTIFICATION PROCEDURES UNDER PACE CODE D
one is capable of remembering a face and that identification evidence is “virtually
useless.”11 According to at least one authoritative statement of expert opinion,
“[t]his is a view which is both far too pessimistic and too simplistic.” 12 The rather
more balanced, if perhaps obvious, judgment has been expressed that
psychological research has shown that witnesses’ identification performance can
range from total accuracy to total inaccuracy depending upon a multitude of
factors.”13 In a reference to this opinion it has been observed that—
“such a statement is a tacit acknowledgment of the possibility of the
unreliability of the testimony of some eyewitnesses, and psychologists have
suggested that eyewitness error is a joint product of inherent human
cognitive limitations . . . and the methods that are used to obtain
information from witnesses.”14
While there is little room for complacency and always acknowledging the
empirically attested incidence of some human error in the field of visual
identification the fact remains that the courts can in the main safely rely on
identification by face. At least under laboratory conditions experimental research
has demonstrated that people are remarkably accurate at remembering briefly
viewed, previously unfamiliar faces. In an important research project undertaken
by Bruce, participants typically scored over 90 per cent correct when asked to
decide which of a large set of faces in identical views were previously studied
(although the figure dropped to 60 per cent when the viewpoint and expression
were changed).15 The study seems to bear out the confidence we tend to feel as a
species in our innate ability to recognise faces and the Court of Appeal may
therefore have been instinctively right in Turnbull when they refused to introduce a
rule precluding convictions based on unsupported visual identification. It will
never be possible to remove from the equation the personal limitations on the
ability of some witnesses to perceive, recall and recognise faces but it is certainly
feasible to try to perfect the general procedures which are employed to test the
ability of witnesses to make an identification. This has been the objective in
developing and incrementally improving the modern rules of investigation.
C. VARIABLES DETERMINING THE RESULTS OF IDENTIFICATION PROCEDURES
The result of an identification procedure will be determined or influenced by what
are known as estimator and system variables.16 Estimator variables are those which
11
Coles and Pringle, cited above at n.4.
McKenzie and Dunk, supra, p.179.
13
Bull, R., Bustin, B., Evans, P., and Gahagan, D. (eds.), Psychology for Police Officers, Chichester:
Wiley, 1983, cited in ibid.
14
Ibid.
15
Bruce, V., “Changing faces: visual and non-visual coding processes in face recognition,” British
Journal of Psychology (1982) 73, pp.105-116.
16
See Valentine, “Forensic Facial Identification,” cited above at n.10, paras 17.18 and 17.19, citing
Wells, G.L., “What do we know about eyewitness identification?” (1993) 48 American Psychologist
12
4
VISUAL IDENTIFICATION IN THE CRIMINAL PROCESS
are specific to the particular witness and the circumstances of the original sighting,
for example, the distance between the witness and the person seen, lighting
conditions, eyesight quality, duration of the sighting, degree of attention paid,
impact of the incident on the witness’s emotional state, 17 and whether the witness
and the person seen were from the same or different ethnic backgrounds. In
contrast with estimator variables, system variables can be controlled by the
criminal justice system and include both the method chosen for testing the ability
to make an identification and the rules devised for conducting the particular
method adopted. It is essential to balance the sensitivity and fairness of the system
variables. If the person originally seen is actually present the procedures must be
sensitive enough to allow a reliable witness to be able to make an identification but
fair enough to keep the possibility of a witness making a mistaken identification to
an acceptably low level.
D. REGULATION BY PACE
(1) Evolution of PACE Code D
Devlin had made a number of suggestions for improvements in the investigative
process where identification was concerned and this resulted in additional
improvements being set out in another Home Office circular.18 However, with the
enactment of the Police and Criminal Evidence Act 1984 the circular guidance,
further improved and refined, was placed on a statutory footing in the form of
Code D, The Code of Practice for the Identification of Persons by Police Officers,
the first edition of which was approved by Parliament under s.66 of the Act and
came into effect on 1 January 1986. It was substantially revised with the other
PACE codes in 1991 and 1995 and then in late March 2002 a further revision was
unveiled (although not under a general revision of the codes), coming into effect
on 1 April under s.77 of the Criminal Justice and Police Act 2001. It involved a
radical restructuring of what was then section 2, together with amendments to
Annexes A to E.19 That edition was originally intended to last for a projected
553-571. See also Valentine, paras 17.29 and 17.30, and Wright, D.B. and McDaid, A.T., “Comparing
system and estimator variables using data from real lineups” (1996) 10 Applied Cognitive Psychology
75-84.
17
There has been a wealth of research on the degree to which identification accuracy may be impaired
by stress levels occasioned by the incident in question. For a leading account and comprehensive
bibliography see generally Loftus, E. F., Eyewitness Testimony, Cambridge, Mass: Harvard University
Press, 1996 (2nd ed; 1st ed, 1979). For a good summary and more recent select sources see Loftus, E.
F., Wolchover, D., and Page D., “General Review of the Psychology of Witness Testimony,” in
Heaton-Armstrong, A., Shepherd, E., Gudjonsson, G., and Wolchover, D. (eds.) Witness Testimony:
Psychological, Investigative and Evidential Perspectives, above n.10, chap. 1, para 1.41. Most recently
see Valentine, T., and Mesout, J., “Eyewitness identification under stress in the London Dungeon,”
(2009) Applied Cognitive Psychology, 23, 151-161 (witnesses who experience high stress show a
catastrophic failure of witness ID).
18
H.O. 109/1978.
19
See Police and Criminal Evidence Act 1984 (Codes of Practice)(Temporary Modifications to Code
D) Order 2002 (S.I. 2002, No.615).
5
VISUAL IDENTIFICATION PROCEDURES UNDER PACE CODE D
transitional period of two years but a consultation draft revision of the codes was
swiftly circulated in June 2002. The earlier amendments to Code Dnow further
amended in a number of particulars and expressed in the modified linguistic style
of the revised codeswere subsequently incorporated into the general revision to
the PACE codes which, after being laid in draft before Parliament on 26 February,
2003, came into force on 1 April, 2003. Section 2 of the 1995/2002 version,
“Identification by witnesses,” was transposed into section 3. A fifth edition, which
came into force on 1 August 2004, made some minor adjustments of a
typographical nature to section 3. Further revisions followed in 2006 and 2011.20
(2) The scheme of Code D for visual identification
(i) Distinction between visual identification and recognition
The provisions in Code D for regulating the visual identification by an
eyewitness of the perpetrator or person otherwise present at a location suggestive
of involvement are primarily concerned with cases in which the individual was a
stranger, that is, not somebody known to the witness. Almost all the control
procedures in Code D are designed to test the ability of eyewitnesses to pick out
from a line-up or group an individual they did not know. Self-evidently a
procedure designed to identify a stranger will serve little useful purpose if the
eyewitness professes to assert that he recognised the person as someone he knew.
Placing a suspect whom the witness knows in a line-up with volunteers who are
entirely unknown to him will tell us nothing.
Prior to the 2011 revision, Code D, section 3 (the section on visual
identification of suspects) applied almost exclusively to regulate identification of a
suspected offender not known to the eyewitness prior to the incident in question.
With the exception of one paragraph in the 2006 edition declaring that nothing in
the code inhibited the showing of films or photographs to the public through the
national or local media, or to police officers, for the purposes of recognition and
tracing suspects21 it contained no explicit measures for regulating recognition of
persons known to the witness.That hiatus was rectified with the current edition of
Code D, section 3 of which is divided into two parts. Part A, embracing paragraphs
3.0 to 3.33, regulates “Identification of a suspect by an eye-witness” (excluding
recognition cases). Part B, containing paragraphs 3.34 to 3.37, is captioned
“Evidence of recognition by showing film, photographs and other images” and
explicitly and purposively deals with recognition of an individual who is known to
the eyewitness.
(ii) Code D identification
D.3.0 explains that Part A of section 3 applies when an eyewitness has seen
the offender committing the crime or in any other circumstances which tend to
20
The Police and Criminal Evidence Act 1984 (Codes of Practice) Order 2005 (S.I. 2005 No. 3503), in
force from 1.01.06; The Police and Criminal Evidence Act 1984 (Codes of Practice) (Revision of Codes
A, B and D) Order 2011 (S.I. 2011 No. 412), in force from 14.02.11.
21
D3.28. The paragraph has been amended and expanded in the current revision.
6
VISUAL IDENTIFICATION IN THE CRIMINAL PROCESS
prove or disprove the involvement of the person the witness saw in the crime, for
example, close to the scene of the crime, immediately before or immediately after
it was committed. The paragraph further explains that the section sets out the
procedures to be used to test the ability of that eyewitness to identify a person
suspected of involvement in the offence as the person the witness saw on the
previous occasion.
That fundamental purpose of these procedures is also expounded in paragraph
D1.2 of the introduction, which states that identification by an eye-witness arises
when a witness who has seen the offender committing the crime and is given an
opportunity to identify a person suspected of involvement in the offence in a video
identification, identification parade or similar procedure. Such eye-witness
identification procedures are designed (a) to test the witness’ ability to identify the
suspect as the person they saw on a previous occasion and (b) to provide
safeguards against mistaken identification.
(iii) Prevention of mistaken identification
The second limb of the objectives of the identification procedures referred to
in D3.0, stating that the formal procedures “are designed . . . to provide safeguards
against mistaken identification,” clearly expresses the purpose perceived by the
Devlin Committee when they observed that
“An identification parade is not primarily a scientific test of a witness’s
memory for faces. It is a device for avoiding a confrontation.” 22
However, if a parade, whether live or video, is not “primarily a scientific test,”
what sort of test is it? The short and simple answer is that parades (live or video)
do no more than aspire to screen for error. However, lest this suggests the
toleration of some flexibility or laxity in the rules requiring their application the
importance of compliance with the code provisions could not have been more
plainly stressed than it was in R v Forbes when the House of Lords stated that the
code was
“. . . intended to be an intensely practical document, giving police
officers clear instructions on the approach that they should follow in
specified circumstances. It is not old-fashioned literalism but sound
interpretation to read the Code as meaning was it says.” 23
(iv) Code breach
As with all the PACE codes a breach of a provision will not automatically
vitiate the admissibility of evidence obtained following the breach but it may be
excluded if to admit the evidence “would have such an adverse effect on the
fairness of the proceedings that the court ought not to admit it.” 24 The Code is
22
Report, para. 8.12.
[2001] 1 Cr.App.R. 430, at para. 26.
24
PACE Act 1984, s.78.
23
7
VISUAL IDENTIFICATION PROCEDURES UNDER PACE CODE D
admissible in evidence and relevant to the question of considering the applicability
of the issue of exclusion for unfairness, as well as to any question of the weight to
be attached by the tribunal of fact to any evidence of identification obtained in
breach of a code provision. 25
(3) Recognition cases in Code D
(i) Recognition of the actual or suspected perpetrator
as someone known to the witness
In claiming to have recognised the culprit or suspected culprit as a person
familiar to them witnesses will usually be giving the person’s name, and possibly
address, and an explanation of the context in which they know the person. In many
cases the police will encounter little difficulty in using this information to arrest
the person so implicated. However, it may be that the witness knows the person
quite well by sight but not by name or there will be error or confusion over the
name by which the witness believed the person they recognised was generally
known. For example, the witness may have described the individual to a third
party who confused the description with that of someone else or the witness may
originally have confused the name with that of someone else.
Again, the witness may not know the given name of the recognised person but
only a nickname or other “tag” which may be in only limited circulation. Name
error, confusion or obscurity may offer an obstacle to the police in pursuing their
inquiries and they will need to exercise particular care and discretion to avoid
causing distress, embarrassment and inconvenience to innocent persons as a result.
It will obviously help if the witness happens to possess a photograph of the person
or can point to an image posted on social media. Where the police consider that
there may be ambiguities or equivocation over the name and they have on record
an official photograph of the person to whom they consider the witness was likely
to have been referring it will be prudent to show the witness that photograph in
order to facilitate the arrest of the right person. Again, they may already have made
an arrest on the strength of a name provided by a witness claiming to have
recognised the perpetrator as someone well known to him. Here, again, it will be
prudent to show the witness an image of the person arrested to eliminate the
possibility of error. Code D makes provision for this.
The question whether the witness truly recognised the offender (or suspected
offender) is of course dependent on whether that person was actually well known
to the witness. In some cases there will be be no dispute that they know one
another but in other cases the suspect may be denying this. That the suspect claims
not to know the witness will hardly mean that the witness cannot know the suspect.
After all, such one-way familiarity will be the norm as between celebrities and
anonymous members of the public. However celebrities are not usually arrested for
25
Under ibid. s.67(11). As to these issues see Chapter 5, below.
8
VISUAL IDENTIFICATION IN THE CRIMINAL PROCESS
street robberies.26 A more pertinent illustration of the point might feature two
members of a community such as the student body in a large secondary school.
While a popular and dominating sixth-former “alpha male” may command
widespread adulation from the mass of pupils he may well live in blissful
unawareness of the existence of a timid and retiring fourth-former, for whom he
looms large in the younger boy’s field of awareness. There is a body of case
learning in which the question whether a witness truly recognised the suspect as
someone well known to him impacted on the issue of whether there should have
been a full, controlled identification procedure.27
(ii) Two pseudo-categories of recognition: actual
encounter and when viewing imagery
There is a distinction of sorts between on the one hand recognition of the
perpetrator by an eyewitness to the crime and, on the other hand, recognition by a
member of the public (or a police officer) of a person he knows who is depicted on
imagery released into the media, or circulated on a limited basis within the police
service, in a quest to find out the person’s identity and whereabouts. However, the
distinction may be one without a difference. It is hard to see any contrast in
principle between (a) an eyewitness to the crime recognising the perpetrator “in the
flesh,” so to speak, as someone he knows, and (b) a witness viewing an image, a
series of still images or moving imagery of a person either committing an offence
or depicted as present at a particular location from which the individual’s
involvement in the offence in question may be inferred, and asserting that he
recognises that person as someone known to him. 28 The cogency of professed
recognition from imagery will depend on such factors as the clarity and resolution
quality of the images and the camera position relative to, and distance from, the
person depicted.
(iii) No requirement as to time of onset of knowledge of the person
The admissibility of professed recognition is not dependent on a witness’s
knowledge of the person prior to the offence, or even prior to the suspect’s arrest.
Two months after interviewing the defendant about a violent disorder for no more
than three minutes a police officer viewed stills from a video-recording of the
incident and the admissibility of his professed recognition of the defendant based
on his presence with him in the interview was not the challenged at the subsequent
appeal.29 Nonetheless there will be an obvious need for caution where the
26
A notorious exception is the case of Peter Hain, the then leader of the Young Liberals, an
internationally prominent campaigner against Apartheid, and later a senior cabinet minister in the
Labour Government, who in 1975 was ludicrously arrested and subsequently tried for bank theft: see
his account Mistaken Identity: The Wrong Face of the Law: London: Quartet, 1976.
27
The decisions in point are considered further at pp.73-76, below.
28
Indeed, no distinction is recognised: Grimer [1982] Crim.L.R. 674, C.A.
29
Blenkinsop [1995] 1 Cr.App.R. 7, C.A. It has been suggested that the same rationale would allow a
solicitor’s representative to exculpate his client on the basis of sitting in on thes client’s short interview
at the police station: Bogan, op. cit., p.178.
9
VISUAL IDENTIFICATION PROCEDURES UNDER PACE CODE D
opportunity to become familiar with the person is limited and the witness is on the
police investigating team.30
(iv) No requirement for the recognising witness to have met the offender
In principle it would not even seem to be necessary for the officer actually to
have met the person with whom he becomes familiar on the photograph not
disputed to be the defendant. We shall return to this topic in the next chapter. 31
(v) Recognition likely to be facilitated by intense scrutiny of imagery
CCTV recordings are rarely of the highest resolution and quality and the
facial and other physical characteristics of persons depicted on it committing an
offence will rarely be highlighted with sufficient clarity or proximity to the camera
for it to be feasible to establish an immediate match with a person known to the
investigator. However, by patiently and repeatedly playing over the footage, both
at normal speed and in slow motion, by scrutinising it at length frame by frame and
by focusing on, analysing and isolating the individual’s characteristics of build,
physiognomy, ethnic type, gait, movements and gestures, it may eventually be
possible for an investigator to establish a match with a particular person known to
him. It has been held that such diligent scrutiny can give the investigator a degree
of special knowledge capable of warranting an avowal of recognition. 32 In Clare
and Peach33 it was accepted that the defendants were present at a football match at
which a violent disorder took place, it being agreed that they were depicted on
relatively good quality colour images arriving at the ground. From viewing black
and white CCTV footage of the disorder forty times, examining it in slow motion
and frame by fame, analysing the content and comparing it with the colour images
a police officer was held to be capable of recognising the defendants as among
those involved in the violence. By virtue of his “lengthy and studious” analysis the
officer was possessed of a special knowledge of the recording which the jury
lacked and the guidance afforded to them by his expert commentary made up for
the impracticability of giving them sufficient time and facilities to conduct their
own researches. The defence were not disadvantaged because the recordings were
available to them as was the officer for cross-examination.
The facts may be contrasted with the second of two cases in AttorneyGeneral’s reference (No 2 of 2002)34 in which the officer had spent many hours
viewing the video recording of a riot and had then later by chance seen the
defendant whom he purported to recognise from the recordings as having been a
participant.
(vi) Ambit of Code D recognition procedure: by imagery alone
D3.0 provides that except where stated, Part A of section 3 does not apply to
the procedures described in Part B. It refers to Note for Guidance 3AA, which
30
Ibid.
See further below at p.38-39.
32
Attorney-General’s Reference (No. 2 of 2002) [2003] 1 Cr.App.R. 21, C.A.
33
[1995] 2 Cr.App.R. 333, C.A.
34
Supra.
31
10
VISUAL IDENTIFICATION IN THE CRIMINAL PROCESS
advises that the eye witness identification procedures in Part A should not be used
to test whether a witness can recognise a person as someone they know and saw on
a particular date and at a particular time and location. In such cases, the Note
states, the “procedures in Part B shall apply,” which is to say the procedures set out
in Part B for establishing whether a witness recognises the person through viewing
imagery. Complementing D3.0 and Note for Guidance 3AA, D1.2A states that
separate provisions in Part B apply when any person, including a police officer, is
asked if they recognise anyone they see in an image as being someone they know
and to test their claim that they recognise that person as someone who is known to
them. Except where stated, these separate provisions are not subject to the eyewitnesses identification procedures described in D1.2.
D3.34 provides that Part B applies when, for the purposes of obtaining
evidence of recognition, any person, including a police officer,
(a) views the image of an individual in a film, photograph or any other
visual medium, and
(b) is asked whether he recognises that individual as someone who is
known to him.
(vii) Risks
Reference is made in D3.34 to Note 3AA, already mentioned, and to Note 3G,
which admonishes that the admissibility and value of evidence of recognition
obtained when carrying out the procedures in Part B may be compromised if
before the person is recognised, the witness who has claimed to know the person is
given, or becomes aware of, information about the person which was not
previously known to him personally but on which he has purported to rely to
support his claim that the person is in fact known to him.
This oblique caution may embrace a multitude of sins but it is not difficult to
conjecture an example of the type of cue which might be supposed to taint a claim
of familiarity and would be the sort of mischief against which the Note appears to
be aimed. An eyewitness observes a street robbery and believes one of the robbers
is someone he knows quite well, although his view was imperfect and he is
initially less than certain. However, minutes later he encounters a friend who also
knows the individual he suspects to be the culprit and he tells his friend what he
has seen. The friend replies that he too has just seen the same person in the vicinity
of the robbery and the eyewitness’s belief is elevated to certainty.
A variation on this theme might occur where the witness is mistaken about the
name of the person he believes was the robber. Shortly after the incident he gives
the incorrect name to a friend who shows him a good photograph of the actual
person bearing that name posted on a social media site. The suspected robber and
the man in the photograph happen to bear a mild resemblance. Sight of the image
coupled with his mistake over the name confirms his erroneous belief that the
11
VISUAL IDENTIFICATION PROCEDURES UNDER PACE CODE D
robber was the man in the photograph and he goes on to identify that person when
subsequently shown an official police photograph.35
(viii) Safeguards
D3.35 accordingly requires that to avoid any possibility of collusion the films,
photographs and other images must be shown on an individual basis and that to
provide safeguards against mistaken recognition the showing must as far as
possible follow the principles laid down in Annex E for identification by
photographs if the suspect is not known and those in Annex A for video
identification if the suspect is known.36 In effect this will mean showing the
photograph of the person the witness claims to know, among an array of foils.
In addition to the Annex E or A requirements D3.36 requires that a record of
the circumstances and conditions under which the person is given an opportunity
to recognise the individual must be made and the record must include:
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
(j)
(k)
Whether the person knew or was given information concerning the
name or identity of any suspect.
What the person has been told before the viewing about the offence,
the person(s) depicted in the images or the offender and by whom.
How and by whom the witness was asked to view the image or look at
the individual.
Whether the viewing was alone or with others and if with others, the
reason for it.
The arrangements under which the person viewed the film or saw the
individual and by whom those arrangements were made.
Whether the viewing of any images was arranged as part of a mass
circulation to police and the public or for selected persons.
The date time and place images were viewed or further viewed or the
individual was seen.
The times between which the images were viewed or the individual
was seen.
How the viewing of images or sighting of the individual was
controlled and bywhom.
Whether the person was familiar with the location shown in any
images or the place where they saw the individual and if so, why.
Whether or not on this occasion, the person claims to recognise any
image shown, or any individual seen, as being someone known to
them, and if they do:


the reason
the words of recognition
This may be the result of the phenomenon termed “unconscious identity transference”: see further
pp.41 and 75, below. For further consideration of the possible implications of exposure to social media
images see below, Chapter 2, at p.37.
36
See Chapters 2 and 4, below, respectively.
35
12
VISUAL IDENTIFICATION IN THE CRIMINAL PROCESS


any expressions of doubt
what features of the image or the individual triggered the
recognition.
D3.37 provides that the record under paragraph 3.36 may be made by:


the person who views the image or sees the individual and
makes the recognition
the officer or police staff in charge of showing the images to
the person or in charge of the conditions under which the
person sees the individual.
In Lariba37 the appellant and others were alleged to have murdered a rival gang
member after pursuing him on their bicycles. The police had used CCTV footage
to create a composite recording showing the outward journey of seven cyclists to
the vicinity of the attack and their return. To a greater or lesser extent, each group
member had disguised his appearance with clothing and face coverings. The
composite recording was played on public media and three police officers, having
informally viewed the footage on the internet, identified the appellant before
attending a formal procedure, when they were again shown the composite
recording. Two further officers identified the appellant at a formal procedure only.
Immediately after the formal procedure all five officers made witness statements.
The officer in charge of the investigation was unaware of paragraph D3.36(k)
which had been inserted in the 2011 revision of Code D, requiring a
contemporaneous record of a witness’s reaction upon being shown CCTV material
and no such records were therefore made.38
The appellant had objected to the admissibility of the identification evidence
of the five officers but for the following reasons it was held that the breaches of
D3.36(k), did not render the evidence plainly unreliable or unfairly prejudicial.
(1) The formal procedure took place not long after the informal viewing of the
footage by the three officers who had viewed it and was followed immediately by
the making of witness statements. While the statements (made by all five officers)
were not a complete record in accordance with the Code D requirements, they did
record the factual basis for the recognitions made. In the case of one of the three
officers, a virtually contemporaneous record had been made of the circumstances
of his informal viewing. (2) The witnesses and the images were available to the
jury who enjoyed the advantage of seeing exactly what the witness saw and the
image was permanent. (3) The appellant had established that not all police officers
who knew him had recognised him from the same images. (4) The judge was able
37
[2015] Crim.L.R. 534, C.A., considering Forbes [2001] 1 A.C. 473, H.L. (CLW/00/45/2); Att.-Gen.’s
Reference (No. 2 of 2002) [2003] 1 Cr.App.R. 321(21), C.A.; Smith (Dean Martin) and others [2009]
1 Cr.App.R. 521 (36), C.A.; Moss [2011] Crim.L.R. 560, C.A.
38
The revision had come into force in March 2011. Although the incident had occurred in April the
formal identification procedures were not undertaken until April 2012, a year later.
13
VISUAL IDENTIFICATION PROCEDURES UNDER PACE CODE D
to explain to the jury the respects in which the appellant was disadvantaged by the
breaches and to call for extreme caution. (5) There was some supporting evidence
for the recognition.
(ix) Implied exclusion of recognition by confrontation
It is to be noted, importantly, that Part B makes no provision for establishing
recognition through confrontation in person. Although the Code per se does not
explicitly preclude the police from using such a confrontation to determine if the
witness recognises the person as someone known to them the controls required by
D3.36, whether Annex E or Annex A, as the case may be can only be secured by
the use of imagery rather than live confrontation.
E. IDENTIFICATION METHOD DETERMINED ACCORDING TO WHETHER
OR NOT THE IDENTITY OF A SUSPECT IS “KNOWN”
Generally speaking, the approach which investigators must adopt in seeking to
discover evidence, and establish proof, of a culprit’s identity will be determined at
a given stage of the inquiry according to whether they are starting from scratch in
uncovering clues or whether they have some idea as to who their quarry might be.
This rather fluid distinction has been translated in the Code D scheme into two
categories of rules: those governing the position where a suspect is “not known”
and those where the suspect is known. A suspect is defined in section 3 of the code
as being “known” where “there is sufficient information known to the police to
justify the arrest of a particular person for suspected involvement in the offence.” 39
It is assumed that this is a reference to justification in law rather than whether the
arrest, technically justifiable in law, might be deemed proportionate or sensible as
a matter of tactics. The legal justification for an arrest by a police constable under
the PACE Act is the existence of reasonable grounds for suspecting a person to be
guilty of an offence. 40 Although it is established that for the purposes of arrest this
standard involves a combination of objective and subjective criteria (reasonable
grounds and the officer’s actual suspicion) 41 for the purposes of section 3 of the
code a purely objective standard has generally been applied. 42
39
D3.4. The definition dates from the 1995 revision in which its status was merely that of Note for
Guidance 2E.
40
Section 24(5)(b).
41
Chapman v DPP (1988) 89 Cr.App. R. 190, C.A.; Castorina v Chief Constable of Surrey [1996]
LGRR 241, C.A.; O’Hara v Chief Constable of the Royal Ulster Constabulary [1997] 1 Cr.App.R. 447,
H.L.
42
Kitchen [1994] Crim.L.R. 684, C.A. (no breach in showing photographs because officer’s suspicion
held to have been based on instinct rather than reasonable grounds); El Hannachi and others [1998] 2
Cr.App.R. 226, C.A. (street identification of four youths standing with officers, one of whom stated that
they would have been arrested regardless of an identification and it was submitted therefore that they
were known; held, no breach because in spite of the officer’s frankness the information was plainly
insufficient to justify arrest); K v DPP [2003] EWHC 351 (Admin); [2003] 4 Archbold News 1 (street
identification held to be in breach where the accused matched a description and had been tracked by a
police dog from the scene of a robbery in the early hours).
14
VISUAL IDENTIFICATION IN THE CRIMINAL PROCESS
The distinction between suspects “known” and “not known” acknowledges the
rather obvious fact that those stringent protective procedures which must be
followed where a suspect is known may be irrelevant or otherwise impracticable to
follow where there is no known suspect. However, it has proved less than
successful as an instrument for applying the generality to the particular because
there are many intermediate cases in which a specific individual will come to the
attention of the police as being of interest to them but will remain as yet
technically outside the category of being a “known” suspect within the meaning of
the Code D definition. This is not uncommonly the situation where shortly after
the commission of a crime by a culprit who is a stranger to the victim a person
who happens to be in the vicinity is stopped or detained by the police as a potential
suspect. At that stage the information or evidence may fall short of providing
reasonable grounds for suspicion, sufficient to justify an arrest, but that is not to
say that the stop is not an essential preliminary measure or that the police can
safely rely on letting the detainee go after taking his name and address (and even,
as an addition precaution, a photograph) so that formal identification procedures
may be followed up later after contacting the person who was stopped and seeking
his co-operation. The name and address may be fictitous and they may never see
the person again, even if they do have his picture. Characteristically, where the
evidence at the moment of the stop is too weak to warrant a lawful arrest, other
sources of information are for the moment elusive, and arrest is the only
practicable guarantee of the detainee’s continued involvement in the inquiry, the
police will have little choice but to hold an impromptu identification, which will in
effect amount to a confrontation between the complainant and the detainee. Such
persons are peculiarly vulnerable to error on the part of the witness and, as will be
argued later, the procedures for conducting such “street identifications” offer little
protection.
It is important to note that generally speaking a person will not amount to a
“known suspect” merely because he matches the description of an offender
circulated to police officers: Coulman v D.P.P.43 However, a description coupled
with other circumstances may furnish sufficient grounds for reasonable suspicion
of guilt. In Nunes44 a police officer observed a burglar in a house and circulated a
description but was unable to arrest him. The area was immediately sealed off and
shortly afterwards other officers arrested the appellant, who broadly fitted the
description. He immediately denied having done anything and the original officer
attended the scene of arrest in order to confirm whether or not he was the culprit
and positively identified him. It was held that the identification had amounted to a
clear breach of the code.45
43
[1997] C.O.D. 91, D.C.
[2001] EWCA Crim 2283; 10 Archbold News 1, C.A.
See also, e.g., K. v DPP [2003] EWHC 351 (Admin); [2003] 4 Archbold News 1 (facts at n.42,
above); Bush (1997) unreported, 27 January, C.A., cited by Bogan, op. cit., para.3.22, n.21 (assailant
was known to be inside a nightclub which had been sealed off by the police; appellant matched the
description of long hair and tattoos and on being asked to stand aside from the crowd was identified by]
44
45
15
VISUAL IDENTIFICATION PROCEDURES UNDER PACE CODE D
The difficult judgment as to whether there are reasonable grounds for
suspicion may lead an officer into making an honest but mistaken decision to
arrest. (Of course, the decision may not be so pious.) If an impromptu
identification procedure is then held the prosecution may be faced with the
prospect of having to concede that the arrest was wrongful in order to justify a
submission that the identification was not. 46 They might then have to argue that the
unlawful nature of the arrest ought not to vitiate the fairness of the informal
identification to which it led on. Such an argument might well succeed since the
informal procedure would in any event have been permissible for the very reason
that the arrest was not, and no unfairness would have flowed from it.
Two (or more) people may simultaneously become known suspects for a
single culprit47 although it has been rightly pointed out that as the number or class
of potential candidates increases so will any claim that they are all known suspects
become more attenuated.48
F. FIRST AND SUBSEQUENT DESCRIPTIONS
(1) The requirement
Where a witness reports having directly observed a crime or otherwise having seen
an event which may indirectly furnish evidence material to a crime the first thing
the police will automatically do is ask for a description of the perpetrator or the
person who is suspected of involvement. This is not only a basic essential in any
investigation but any description given may furnish a useful check against
the complainant). Cf. Rogers [1993] Crim.L.R.386, C.A. (no breach where, shortly after a man with
slurred speech was observed damaging cars on an industrial estate, the police found the appellant in a
warehouse near by and although his speech was slurred, he was not wearing the pullover described by
eyewitnesses; the arrest criterion was applied although the second edition of the Code which was in
force at the time did not then include the definition of “known” suspects; for commentary on the case
see Bogan, op. cit., para. 3.22, n.20). In Gornall 149 S.J. 300, C.A. (judgment 3 March 2005) a
householder disturbed a man who then fled with one or more others into the garden of an adjacent
house. She told the police the man was wearing a white t-shirt and in the adjacent house the police
found twin brothers, one of whom had on a white t-shirt. The police first brought the other brother to
the householder who said he was not the man she had seen. The other brother was then brought to her
and she identified him. It was held that before the identification the identity of the suspect was not
known and that it would have been extraordinary if the police had not done as they did. In commentary
on the decision the editor of Criminal LawWeek points out that the very brief details in the report do not
disclose whether the brothers lived in the adjacent house or were merely found hiding there, whether
any other candidates were found, the time between the escape and the brothers being found by the
police or whether they were arrested before the identification: see CLW/05/09/4. Nevertheless he
rightly suggests that as the accused fitted the description and was found where the offenders had been
seen to go and as the brother had been eliminated these facts alone ought to have been found to provide
the necessary reasonable grounds for suspicion to require a formal procedure.
46
In Williams [2003] EWCA 3200; (2003) SJ 1305, the appellant’s detention clearly amounted to an
arrest but the Court of Appeal declined to rule on whether the grounds were sufficient to make him a
known suspect.
47
Cumming and others v Chief Constable of Northumbia Police [2003] EWCA Civ 1884 99 (action for
wrongful arrest).
48
See Bogan, op. cit. para. 3.26.
16
VISUAL IDENTIFICATION IN THE CRIMINAL PROCESS
retrospective self-corroboration if and when the witness is called upon to identify a
suspect as the culprit or the person originally observed. Apart from retroracionation, it is self-evidently desirable to get a description down in writing while
the mental image of the culprit, or other person previously seen, remains fresh in
the witness’s mind. If then any deterioration takes place in the witness’s memory
through the normal effluxion of time, or if the original memory becomes corrupted
by such intervening suggestive influences as “overshadowing” (discussed below)
the original record will be there to validate an identification of a person whose
appearance matches the early description. Otherwise, if the memory changes with
time and only a late description is recorded but on seeing the culprit during the
formal procedure the witness’s original memory is revived an entirely misleading
impression of inconstancy will have been created. (On the other hand, consistency
is not necessarily a reliable indicator of accuracy, as is mentioned later in this
section.) It would not be unreasonable to assume that in the light of these
considerations and notwithstanding the Code lacuna, it is routine police practice to
record a description as soon as practicable and at a early opportunity.
It was therefore often, though by no means invariably, the case that the police
would write down, and preserve, the witness’s description of the culprit. However,
there was no mandatory requirement to follow what was after all only an axiom of
prudent practice, a deficiency which lingered on in spite of proposals by the
Criminal Law Revision Committee in their 11th Report49 and by Devlin50 and a
call for action by the Court of Appeal in Turnbull.51 It was not in fact until after the
Royal Commission on Criminal Justice in 1993 urged the insertion in Code D of a
rule requiring first descriptions in effect to be requested and transcribed 52 that this
was finally achievedin the 1995 revision. Since the requirement may arise at any
stage of an investigation it is the one provision in section 3 of Code D which is
placed outside the general scheme of categorising rules according to whether or
not the suspect is known. D3.1 of the current edition provides
“A record shall be made of the suspect’s description as first given by a
potential witness. This record must
(a) be made and kept in a form which enables details of that
description to be accurately produced from it, in a visible and
legible form, which can be given to the suspect or the suspect’s
solicitor in accordance with this Code, and
49
Evidence (General), Cmnd. 4991, June 1972, para. 196.
Report, paras. 5.15 and 8.10.
51
(1977) 63 Cr.App.R. 132.
52
Report, Cm. 2263, July 1993, Chapter 2, para. 10, recommendation 4, responding to submissions
based on various academic treatments. See, e.g., Heaton-Armstrong, A., “Identificationdescription of
suspects” [1986] Crim.L.R. 215; Heaton-Armstrong, A., and Wolchover, D., “Exorcising Dougherty’s
Ghost,” (1991) 141 New Law Journal 137; “Recording Witness Statements” [1992] Crim.L.R. 160, at
p.165. On the other hand, a senior officer appointed to draft policy on identification procedures for the
Northern force to which he is attached has informed the author that failure to record early first
descriptions among officers of his own force is endemic.
50
17
VISUAL IDENTIFICATION PROCEDURES UNDER PACE CODE D
(b) unless otherwise specified, be made before the witness takes
part in any [formal] identification procedure . . . .”
Although the description to be recorded is that of the “suspect” and not of the
person who was originally witnessed it is clear that the reference is not to the
person in respect of whom identification procedures are to be conducted.53 D.3.1
concludes by providing that a copy of the record must where practicable be given
to the suspect or the suspect’s solicitor before any of the formal identification
procedures applicable where the suspect is known arte carried out. In Cole54 an
identification parade was held the day after the incident and the appellant’s
solicitor was not informed beforehand of a note of a telephone call made to the
police by the witness attending the parade in which she gave a description of her
assailant which differed from the description in her witness statement two days
later. Although this constituted an obvious breach of D3.1 it was held that an
application to exclude the evidence of the identification parade under section 78 of
the PACE Act for that code breach on its own would have failed. Had the solicitor
been informed of the contents of the note when he should have been it was highly
doubtful that the appellant would have been advised to withdraw his consent to
participate.55
The provision lays down no specific requirement for a description to be
requested. It may have been thought unnecessary to command that which is second
nature to the police. The first draft of the 1995 revision required records of first
description to be made “as soon as practicable,” 56 a requirement which was
omitted from the final form and not subsequently re-instated. This omission has
previously been described as “mystifying” 57 although it may have been intended to
provide bureaucratic leeway for fact that many first-time written reports are in the
form of computerised entries which are not necessarily made until some time has
elapsed after the description is first given to the police. However, some forces in
England and Wales have applied the instruction to mean as soon as possible. 58 In
the interests of maintaining best practice uniformly a requirement for first
descriptions to be recorded as soon as practicable should be incorporated in the
53
The semantic problems arising from inadequately distinguishing between the competing terms
“culprit” and “suspect” are further considered below, at p.59, in commentary on D3.12.
54
(2013) unreported, July 5, C.A. For commentary see [2013] Law Soc. Gaz., December 2, p.21.
55
Moreover, it was held, a tactical decision not to deploy the note at the trial was not unreasonable. If
the contents had been used, while some further inconsistencies in the witness’s description would have
emerged, there would have been a correspondingly increased concentration on the assailant’s face, on
which, at the time, she was actually focusing her attention. The reality was that the correctness of the
identification of the appellant was given powerful support by the remaining evidence. Without the
benefit of the contents of the note the jury entertained no reservations about it.
56
Home Office, August 1994, D2.0.
57
Wolchover, D., and Heaton-Armstrong, A., “Questioning and Identification: Changes under P.A.C.E.
’95” [1995] Crim.L.R. 356, at p.367.
58
Eg Kent Constabulary: see McKenzie, I., and Dunk, P., “Identification parades: psychological and
practical realities,” in Heaton-Armstrong, A., Shepherd, E., and Wolchover D. (eds.), Analysing
Witness Testimony, London: Blackstone Press 1999, p.182.
18
VISUAL IDENTIFICATION IN THE CRIMINAL PROCESS
next revision of the code. There is no provision for the witness to sign the
description, which may inhibit its use as an aide memoire,59 but which, again, may
be explained by the fact that most crime reports are now computer recorded, often
simultaneously with the description being given over the telephone to a police
telephone operator, rendering a signature impracticable.
Utility of first description contingent on known appearance of suspect at the
time It hardly needs stressing that the evidential value of the witness’s first
description is necessarily contingent on the known, rather than the presumed,
appearance of the defendant at the time the description is given. In Amin60 the
marked disparity between the description of the robber and the appellant’s
appearance when arrested was ascribed by the prosecution to the assumption that
he must deliberately have altered his look in the intervening three days. The
assumption was negated by police photographs the Criminal Cases Review
Commission unearthed showing his appearance on the occasion of three previous
arrests for matters on which no action had been taken and his conviction was
quashed.
Eyewitness who have participated in a formal identification procedure must
be asked if they have seen broadcast or published descriptions Every eyewitness
involved in a formal identification procedure must be asked, after they have taken
part, whether they have seen any description of the suspect which has been
broadcast or published in any national or local media or on any social networking
site, and if they have they should be asked to give details of the circumstances,
such as the date and place as relevant; their replies must be recorded. 61 This will be
important in order to indicate whether the description might have influenced the
identification.
(2) Research and common suppositions
(i) Descriptive consistency and identification accuracy
Apart from serving as a potential safguard against the risk that a description
given later might have been influenced by the apppearance of the suspect when
identified, early descriptions are also widely supposed to serve as a test of
consistency with later descriptions given, in a statement or in court. However some
research has shown that consistency is a poor predictor of accuracy and that
witnesses are commonly inconsistent in their statements but still make accurate
identifications.62
59
See Wolchover and Heaton-Armstrong, [1995] Crim.L.R., at p.368.
[2015] Crim.L.R.631, C.A.
61
D3.29
62
See Fisher, R.P., and Cutler, B.L., “The relationship between consistency and accuracy of eyewitness
testimony,” in Davies, G., Lloyd-Bostock, S., McMurran, M., amd Wilson, C. (eds.) Psychology and
Law: Advances in Research, Berlin: De Gruyter, 1995 (participants viewed a mock theft and were rated
for consistency in a series of descriptions given to the researchers).
60
19
VISUAL IDENTIFICATION PROCEDURES UNDER PACE CODE D
(ii) Descriptive and identification accuracy
It is also important to note research tending to show that there is sometimes
little relationship between the detail and accuracy of the description that an
eyewitness can supply of a person and the ability of the witness to identify that
person.63 Good describers are not necessary good identifiers.
(3) General research on accuracy of descriptive detail
It is may also be of importance to summarise the findings under the following
heads of certain British research into the accuracy of descriptions of perpetrators
furnished by witnesses.64
Gender Witnesses are normally accurate at identifying and remembering the
offender’s gender.
Age Witnesses are characteristically most accurate when estimating the age of
a person of like age to themselves. Some witnesses may have developed a special
aptitude for estimating the age of those in a certain age group (for example a
secondary school teacher at estimating the age of teenagers).
Height Witnesses tend to be poor at estimating height, with inaccuracy
increasing with the difference between their height and that of the offender.
Build Witnesses are often poor at estimating build, with estimates often
influenced significantly by clothing, such as baggy trousers or padded jackets. It
has ben suggested that witnesses may tend to overestimate the build of violent
offenders, but this is far from having been established.
Hair Descriptions of hair colour and length tend to be reasonably accurate.
Race Witnesses tend to be accurate at establishing when someone comes from
a different racial background to their own but they are less accurate in describing
the specific racial group to which an individual belongs. The confusion may arise
partly as a result of confusion in the terms used to describe different racial
groupings.65
Cutler, B.L., Penrod, S.D., and Martens, T.K., “The reliability of eyewitness identification: the role of
system and and estimator variables,” Law and Human Behaviour (1987) 11, 233-258.
64
Farrington, D.P., and Lambert, S., Offender Profiling: Theory, Research and Practice, Chichester:
Wiley, 1997 (chapter entitled “Predicting offender profiles from victim and witness descriptions”;
1,069 descriptions of burglary or violence in Nottinghamshire); Tollestrup, P.A., Turtle, J.W. and
Yuille, J.C. “Actual victims and witnesses to robbery and fraud: an archival analysis,” in Ross, D.F.,
Read, J.D., and Toglia, M.P. (eds.) Adult Eyewitness Testimony: Current Trends and Developments,
Cambridge: Cambridge University Press, 1994, pp.144-162. A good deal of research on general
description appears to indicate that these are the categories under which witnesses usually provide
information: see McKenzie, I., and Dunk, P., “Identification parades: psychological and practical
realities,” in Heaton-Armstrong, A., Shepherd, E., and Wolchover D. (eds.), Analysing Witness
Testimony, London: Blackstone Press 1999, p.182.
65
See Kebbell, M.R., and Wagstaff, G.F., “Face Value? Evaluating the Accuracy of Eyewitness
Information,” Police Research Series Paper 102, Policing and Reducing Crime Unit, Home Office
1999, p.27. By contrast with descriptive ability, cross-racial identification seems to be more difficult
than same-race identification, studies showing that people from one racial background have more
difficulty identifying individual members of another race than do members of their own race: see eg
Valentine, T., Pickering, A. and Darling, S., “Characteristics of eyewitness identification that predict
63
20
VISUAL IDENTIFICATION IN THE CRIMINAL PROCESS
Distinguishing features Witnesses tend to be good at remembering
distinguishing features which stand out, such as a gold tooth or a tattoo, and
unusual faces are more likely to be described accurately.
Clothing Descriptions of clothing style tend to be reasonably accurate but the
accuracy of the clothing colour described will diminish as the light conditions are
poorer.
(4) Theory and research on the phenomenon of “overshadowing”
Although it is clearly imperative to take a description of a person who may be the
culprit research has found that when eyewitnesses provided a verbal description
their performance at a subsequent identification test was liable to be impaired.66
The phenomenon which is believed to cause this, known as “verbal
overshadowing,” is thought to occur because people possess both memories of
their verbal description and an additional memory trace of the actual person seen.
The former will tend to interfere with—or overshadow—the latter and thus impair
identification ability.
(5) Methods of eliciting descriptions
The current consensus among psychologists is that the method of the “cognitive
interview,” involving an invitation to free recall by the witness, is apt to elicit more
information and more accurate information than by value-laden questioning.67 The
proper application of the cognitive interview requires the luxury of time, a
commodity which may not be available to a police operations room telephonist,
who will often need information quickly so that it can be circulated to beat or
patrol officers, or when officers are setting off with a witness on the look-out for
the perpetrator in the immediate aftermath of some street crime. Inappropriate
questioning on the hoof can distort or even destroy the processes of mental
encoding, storage and retrieval, particularly through overshadowing. Suitable
techniques in the training of police telephone operators and patrol officers alike
need to be developed and applied, yet although this has been urged from time to
time,68 very little has so far been done to implement such a programme. It follows
the outcome of real lineups” (2003) 17 Applied Cognitive Psychology 969-993. Cf. Pike, G., Brace, N.
And Kyman, S., Ithe visual identification of suspects: procedures and practice, Briefing note 2/02,
Policing and Reducing Crime Unit, Home Office Research Development and Statistics Directorate,
2002, reporting no effect of cross-race identification on the outcome of live parades.
66
See Lindsay, S., “Memory source monitoring and eyewitness testimony,” in Ross, D., Ceci, S.J.,
Dunning, D., and Toglia, M., (eds.) Adult eyewitness Testimony, Cambridge: Cambridge University
Press, 1994, p.27, at pp.45-46. See also Valentine, T., and Maras, K. (in press), “The effect of crossexamination on the accuracy of adult eyewitness testimony,” in Applied Cognitive Psychology
(showing that cross-examination can reduce the accuracy of eyewitness testimony.)
67
For a good general summary with comprehensive bibliography see Clifford, B.R., and Memon, A.,
“Obtaining detailed testimony: the cognitive interview,” in Heaton-Armstrong, A., Shepherd, S., and
Wolchover, D. (eds.) Analysing Witness Testimony, London: Blackstone Press, 1999, pp.146-161.
68
McKenzie, I., and Dunk, P., “Identification parades: psychological and practical realities,” in ibid., at
pp.183-184.
21
VISUAL IDENTIFICATION PROCEDURES UNDER PACE CODE D
that Code D contains no provisions designed to avoid the dangers implicit in poor
technique.
(6) Taking a description of the witness
As it is tolerably well established that descriptive accuracy is liable to be greater as
the person described is closer in description to the witness it has been suggested
that it may be helpful to record a description of the witness as a guide to the
predictable accuracy of the description of the offender, such an exercise
presumably being helpful in the investigation and as a means of assessing the
weight to be given at trial to the description. 69
(7) Admissibility in court
The jury can hardly be prevented from comparing the defendant in the dock with a
description of the offender or person it is contended was likely to have been the
offender, particularly where the features described are distinctive. In doing so they
will obviously make allowance for superficial changes of appearance which may
have occurred since the alleged offence, hair length or facial hair changes being
the most obvious but substantial ageing if the time lapse has been extensive. In the
absence of markedly distinctive features a comparison will go only to consistency
of appearance.70
G. USE OF PHOTOGRAPHS
(1) Unknown and known suspects
The process (a) of seeking to discover the identity of potential suspects to a crime,
presently unknown, from a description of their physical appearance supplied by
witnesses to investigators, and (b) that of establishing from his or her physical
appearance that a particular suspect, already known, may in fact be the perpetrator,
will in many cases necessarily be dependent on the scrutiny of existing official
photographs taken of persons who have previously been investigated by the police
for an offence.
The facility of being able to show eye witnesses photographs of potential or
actual suspects in order to discover if the person depicted is or may be the
perpetrator is made possible by a range of statutory powers which the police enjoy
for the taking and retention of photographs of certain categories of person who
have previously been arrested or otherwise investigated for offences. These powers
are mainly furnished by the PACE Act and Code D for the purposes both of
keeping records of such persons and for general investigative purposes where
identity based on physical appearance may be in issue. For the sake of
completeness in this treatise it is proposed to set out the principle powers.
69
70
Ibid., p.185.
See Bogan, op. cit., p.179.
22
VISUAL IDENTIFICATION IN THE CRIMINAL PROCESS
(2) Statutory powers and Code provisions regarding
the taking of photographs of suspects
(i) Detained persons
Section 64A of the PACE Act authorises the police to photograph any person
whilst they are detained at a police station and any person who is elsewhere than at
a police station and who has been arrested by a constable for an offence or taken
into custody by a constable after being arrested for an offence by a person who is
not a constable.71 Photographs may be taken with the person’s consent or without
their consent if consent is withheld or it is not practicable to obtain their consent. 72
The officer proposing to take a detainee’s photograph may, for this purpose,
require the person to remove any item or substance worn on, or over, all, or any
part of, their head or face; if they do not comply with such a requirement, the
officer may remove the item or substance. 73 If it is established that the detainee is
unwilling to co-operate sufficiently to enable a suitable photograph to be taken and
it is not reasonably practicable to take the photograph covertly, an officer may use
reasonable force to take the photograph without consent and for the purpose of
taking the photograph, remove any item or substance worn on, or over, all or any
part of, the person’s head or face which they have failed to remove when asked.74
If force is used when taking a photograph a record must be made of the
circumstances and those present.75 For the purposes of Code D, a photograph may
be obtained without the person’s consent by making a copy of an image taken at
any time on a camera system installed anywhere in the police station. 76 When
persons are photographed under the foregoing provisions they must be informed of
the purposes of the photograph, the grounds on which the relevant authority, if
applicable, has been given and the purposes for which the photograph may be
71
Reiterated in D5.12. Provision is also made by s.64A and D5.12 for the photographing of persons
who have been made to wait with a police community support officer (PCSO), given various kinds of
penalty notice or fixed penalty notice by a constable in uniform, PCSO or other accredited person.
72
D.5.12A, condition (a). Note for Guidance 5E states that examples of when it would not be
practicable to obtain the person’s consent include (a) when a person is drunk or otherwise unfit to give
consent, (b) where there are reasonable grounds to suspect that if the person became aware a
photograph, suitable to be used or disclosed for the use and disclosure in the prevention or detection of
crime, the investigation of offences or the conduct of prosecutions, they would take steps to prevent it
being taken, eg by violently resisting, covering or distorting their face, etc, and it would not otherwise
by possible to take a suitable photograph, (c) when, in order to to obtain a suitable photograph, it is
necessary to take it covertly, and (d) in the case of a juvenile, if the parent or guardian cannot be
contacted in sufficient time to allow the photograph to be taken.
73
D5.13.
74
D5.14. Note for Guidance 5F states that the use of reasonable force to take the photograph of a
suspect elsewhere than at a police station must be carefully considered. In order to obtain a suspect’s
consent and co-operation to remove an item of religious headware to take their photograph, a constable
should consider whether in the circumstances of the situation the removal and the taking of the
photograph should be by an officer of the same sex as the person. It would be appropriate for these
actions to be conducted out of public view.
75
D5.18.
76
D5.15.
23
VISUAL IDENTIFICATION PROCEDURES UNDER PACE CODE D
used, disclosed or retained.77 The information must be given before the photograph
is to be taken covertly or obtained without consent by making a copy of an image
taken on a camera system installed at a police station.78 A record must be made
when a photograph of a person or any identifying marks found on them are taken
and must include the identity of the officer taking the photograph, the purpose of
the photograph and the outcome, the person’s consent to the photograph or the
reason for taking the photograph without consent and giving any authority, the
grounds for giving it and the authorising officer. 79 If force is used when taking a
photograph, a record must be made of the circumstances and those present. 80
(ii) Persons at police stations not detained
The aforementioned provisions for taking photographs apply mutadis
mutandis when there are reasonable grounds for suspecting the involvement of a
person in a criminal offence but that person is at a police station voluntarily and
not detained apply.81 In the case of persons voluntarily attending the police station
force may not be used to take a photograph of the person. 82
(iii) Photography of identifying marks
The PACE Act permits the photographing of any marks on a person detained
at a police station for an offence which would tend to identify them or assist in
establishing their identify as a person involved in the commission of an offence.83
The officer must be of the same sex. 84 Such marks may be photographed with the
detainee’s consent, or without their consent if it is withheld or it is not practicable
to obtain it.85 Where the person is voluntarily at a police station and not therefore
detained there force may not be used to take photographs of any identifying marks
that may assist in establishing the person’s identity, or their identification as a
person involved in the commission of an offence. 86
(3) Statutory provision for the use and retention of photographs
Photographs taken under section 64A of the PACE Act may be used or disclosed
only for purposes related to the prevention or detection of crime, the investigation
77
D5.16.
Ibid.
D5.17.
80
D5.18.
81
D5.19 and 5.20.
82
D5.21(c).
83
Section 54A(1) and D5.1 and 5.4.
84
D5.5.
85
D5.4. Note for Guidance 5D states that examples of when it would not be practicable to obtain a
detainee’s consent to the taking of a photograph of an identifying mark include (a) when the person is
drunk or otherwise unfit to give consent, (b) when there are reasonable grounds to suspect that if the
person became aware that an identifying mark was to be photographed, he or she would take steps to
prevent this happening, e.g. by violently resisting, covering or cbncealing the mark and it would not
otherwise be possible to photograph the identifying mark, (c) in the case of a juvenile, if the parent or
guardian cannot be contacted in sufficient time to allow the photograph to be taken.
86
D5.21(d).
78
79
24
VISUAL IDENTIFICATION IN THE CRIMINAL PROCESS
of offences or the conduct of prosecutions by, or on behalf of, police or other law
enforcement and prosecuting authorities inside and outside the United Kingdom or
the enforcement of a sentence or order made by a court when dealing with an
offencer; after being so used or disclosed they may be retained but can only be
used or disclosed for the same purposes.87 The same power of use and retention
applies to photographs of identifying marks, save that it will not extend to use for
sentencing or other court order when dealing with an offence. 88
(4) Destruction of photographs
Subject to any requirements under the Criminal Procedure and Investigations Act
1996 for the retention of material in connection with criminal investigations,
photographs of persons, or of their identifying marks, which are not taken in
accordance with the provisions in Code D, section 5, must be destroyed (together
with any negatives and copies) unless the person (a) is charged with, or informed
that they may be prosecuted for, a recordable offence, (b) is prosecuted for a
recordable offence, (c) is cautioned for a recordable offence or given a warning or
reprimand in accordance with the Crime and Disorder Act 1998 for a recordable
offence, or (d) gives informed consent, in writing, for the photograph or image to
be retained for one or more of the purposes specified by the PACE Act, sections
s.54A and 64A, as set out in the previous paragraph. 89 D.3.31 applies these
conditions for retention to photographs of suspects (negatives and copies) taken for
the purposes of, or in connection with, the formal identification procedures
authorised by section 390 and D3.30 restricts the use of photographs retained under
D3.31 to the purposes enumerated by the PACE Act, sections 54A and 64A.
(5) Admissibility
The admissibility of photographs of suspects is almost as old as photography
itself,91 the image being direct evidence of the scene depicted.92 Moving films and
electronic video and audio recordings are admissible on the same basis93 and need
87
PACE Act, s.64A and D.12A, condition (b). Note for Guidance 5B sets out a long list of examples of
purposes related to the prevention or detection of crime, the investigation of offences or the conduct of
prosecutions.
88
D5.6.
89
D5.22. The uses to which retained photographs may be put are restricted to those given in D5.6
(identifying marks) and D5.12A (photographs of the person): ibid. The person must be given the
opportunity to witness the destruction or to have a certificate confirming the destruction if they request
one within five days of being informed that the destruction is required: D5.23.
90
Those set out in D3.5 to 3.10, 3.21, and 3.23, ie, video identification format using still images, live
parade, group identification and confrontation. The reference to confrontation is anomalous: in contrast
with live parades and group identifications Annex D makes no provision for any photographs to be
made or used in connection with confrontations. Nothing in D3.31 affects any separate requirement
under the Criminal Procedure and Investigations Act 1996 to retain material in connectrion with
criminal investigations: D3.33. D3.32 replicates the requirements of D5.23 for notice of destruction.
91
Tolson (1864) 4 F. & F. 103.
92
Taylor v Chief Constable of Cheshire (1987) 84 Cr.App.R. 191, C.A.
93
Fowden and White [1982] Crim.L.R. 589, C.A. (video); Maqsud Ali [1966] 1Q.B. 688, C.A. (audio).
25
VISUAL IDENTIFICATION PROCEDURES UNDER PACE CODE D
not necessarily be produced by the person responsible for operating or managing
the settings on the recording device. Authentic copies are admissible without
regard to the best evidence rule.94 In the the event that an image or a recording is
lost, destroyed or erased a witness who viewed it may attest to what it depicted95
unless doing would be likely to undermine the fairness of the proceedings.96 In the
present context the witness would be constrained by the difficulties of using words
to describe physical appearance. In theory there would be no reason in principle to
prevent the witness from participating in the making of a likeness construct from
his or her memory of the appearance of the individual depicted in the image. This
is largely academic nowadays since digital technology is such that stills are
invariably available and that ostensibly erased images can be retrieved or
reinstated by experts.
94
Kajala v Noble (1982) 75 Cr.App.R. 149, D.C. Queries as to provenance and therefore admissibility
may be avoided by adducing continuity evidence and maintaining a comprehensive record of any
copying, alteration or enhancement, particularly involving expert evidence: see Bogan, op. cit., pp176177.
95
Taylor v Chief Constable of Cheshire, supra.(CCTV recording of shop premises accidentally erased
after being viewed by police officers).
96
PACE Act, s.78.
26
Chapter 2
SUSPECT’S IDENTITY NOT KNOWN
A. ROUTES TOWARDS DISCOVERING THE SUSPECT´S IDENTITY
(1) Searching the “rogues gallery”
(i) Common practice and the Code
A crime has been committed and although the police may have no one in
particular in contemplation as the perpetrator, the nature of the offence, its modus
operandi, possibly a psychological profile, and the physical description may have
led them to draw up a form of “short list” of candidates from their records of
known offenders. To what extent this would entitle them to “round up the usual
suspects” for questioning is perhaps moot, given modern susceptibilities.
Sometimes the factors are so precise that they can focus on one individual, but, as
has already been noted, a selection of persons can nevertheless logically be
“known” suspects at the same time even though there is only one culprit. 1
On the other hand, the police may have no particular suspect to a crime in
their sights and little or no idea who might have committed it but may have an
eyewitness who, having reported it and having given a description of the culprit,
purports to be capable or even confident of making an identification. As an
investigative tool it has been the time-honoured practice in such cases to invite the
witness to peruse a photographic “gallery” of known offenders to see if the culprit
might be amongst them. The precise practice obviously varied regionally but every
police force maintained albums of photographs of known offenders categorised in
general according to race, gender, age, physical description, and type of offence.
Albums kept by divisional commands would necessarily concentrate on offenders
who had committed offences in their area (and who possibly also lived in the
locality) so that the witness would necessarily be examining photographs of
offenders who had committed offences in the same area as the offence under
investigation. Perusal would usually be limited to albums containing photographs
of offenders matching the general physical description of the culprit, and having a
record of committing offences similar in character or method of execution (or
both) to the offence under investigation. Any wider trawl might be time-wasting.
The use of “hard” albums has now widely given way to computerised presentation
by means of DVD compilations made up from data bases of the images of known
offenders. This has facilitated the narrowing down of possible suspects to those
1
See above, p. 16.
27
VISUAL IDENTIFICATION PROCEDURES UNDER PACE CODE D
corresponding to the witness´s description as well as to those within other relevant
categories, something which was not practicable in the past when permanent hard
albums were used.
Code D3.3 permits the showing of photographs but only “if the suspect’s
identity is not known.”2 It has been suggested that the reason for this is that
although the format for this procedure is controlled and structured (as described
below) it remains a less transparent test than a video identification and may suffer
from a lack of real choice in the physical appearance of those depicted in the
photographs.3 The lack of choice, at least as far as the contribution of any potential
suspect is concerned, is certainly implicit in the use of photographs as a tool to
detect a hitherto unknown suspect but that is inherent to the nature of the exercise
and is hardly any argument against their use where a suspect is known. It is
difficult to see why the use of stills as against moving images will necessarily
suffer from a lack of transparency or element of real choice.
Where there is no known suspect D3.3 provides that the showing of
photographs is regulated by Annex E to the Code. D3.3 expressly prohibits the
showing of still photographs “if the identity of the suspect is known to the police
and the suspect is available to take part in a video identification . . . .” However, as
one commentator has observed, it may be permissive if a known suspect is
unavailable,4 although if resort has to be made to stills they ought to be shown in
video format in conformity with D3.21 when a known suspect is not available. 5
(ii) Deficiencies revealed by research
Research has shown a negative correlation between the accuracy of
identification and the number of photographs inspected. 6 As the number of faces
inspected by the witness increases the greater the extent to which those images
interfere with the witness’s memory of the culprit’s face, the phenomenon of
overshadowing. Similarly, viewing faces in photographs can create some
confusion in memory that interferes with the ability to make a subsequent
identification.7
(iii) Amelioration
A partial amelioration of the shortcomings alluded to above may be to restrict
the total number of photographs selected for viewing, rather than allowing open
2
As a general rule, the Crown should neither adduce evidence, nor refer to, police photographs: Lamb
71 Cr.App.R. 198, C.A. The prejudicial effect of adducing such evidence of bad character usually
outweighs any probative value. However, the crown might, unusually, lead such evidence where the
accused’s criminal record has been adduced by the defence: Allen [1996] Crim.L.R. 426, C.A.
3
See Bogan, op. cit., para. 3.10, p. 24.
4
Ibid., para 3.12, p.24, citing Kitchen [1994] Crim.L.R. 684 where the suspect had escaped from
custody and the equivalent provision under the 1991 edition (D2.18) was held to permit an
identification by photographs.
5
See below.
6
See Lindsay, R.C.L., Nosworthy, G.J., Martin, R., and Martynuck, C., “Using mug shots to find
suspects,” Journal of Applied Psychology (1994) 79, 121-130.
7
Gorenstein, G.W., and Ellsworth, P., “Effect of choosing an incorrect photograph and later
identification by an eyewitness,” Journal of Applied Psychology (1980) 65, 616-622.
28
SUSPECT’S IDENTITY NOT KNOWN
ended search through albums until a face is recognized. This would not necessarily
mean fixing an absolute maximum but it it is certainly feasible to reduce the
number of photographs which are worthy of inspection. 8 Paring down the gallery
to this end would necessitate the witness being asked to provide as precise a verbal
description of the facial features recalled as possible. Alternatively, a likeness
construct such as photofit or E-fit could be employed as a first stage. Then, using
the construct, a trained officer could conduct a trawl through the available albums
picking out only those faces which correspond to the description or which
resemble the construct. However, the problem with this strategy would be that
verbal overshadowing or overshadowing as a result of co-operating in the
preparation of a composite can, as discussed below in the section on composites,
also interfere with the accuracy of an identification. Since the performance of
witnesses in attempting to create constructs tends to be poor it may be best to
restrict preparation to concentrating on taking as detailed a verbal description as
possible, making the selection from that and imposing a strict limit on the number
of images viewed.
(iv) Restricting exposure time to each photograph
Any notion of restricting the number of images viewed would inevitably face
official resistance. However, an alternative means of avoiding the problem of
overshadowing would be at least to limit the exposure time of witnesses to each
image shown, a benefit of the use of DVD. Since, as discussed later, research has
shown that accurate identifications tend to be swift, this is a limitation which may
serve to reduce the effect of overshadowing without diminshing the comprehensive
ambit of the “rogues gallery” trawl.
(v) The problem of implicit revelation of previous convictions
The photograph by which a witness identified the defendant when perusing
the photographic gallery of known offenders is admissible as an element of the
process of proving identification.9 This will implicitly convey to the tribunal the
fact that the defendant has a criminal record, which can be problematical for the
defence if identity is in issue and no application has otherwise been made to
adduce a defendant’s previous conviction under the bad character provisions of the
Criminal Justice Act 2003. If – as more often than not happens – the witness has
gone on to identify the defendant via a standard video identification parade the
initial identification will have been superceded and there need be no reference to it
at the trial. If, on the other hand, no identification is made at a subsequent formal
identification procedure it is unclear if the initial, provisional, identification might
still stand to be admissible to support other evidence. The suggestion by one
8
With Home Office funding the University of Aberdeen developed a system of coding witness
descriptions to compile a relatively smaller number of photographs for inspection, leading to more
accurate performance than was possible using the full albums: see Shepherd, J., “An interactive
computer system for retrieving faces,” in Ellis, H.D., Jeeves, M.A., Newcombe, F., and Young, A.,
Aspects of face processing, Dordrecht: Martinus Nijhoff, 1986, pp.398-409.
9
R v Governor of Pentonville Prison ex p Voets [1986] 1W.L.R. 470, D.C.
29
VISUAL IDENTIFICATION PROCEDURES UNDER PACE CODE D
commentator10 that the failure to make a positive formal identification will nullify
an initial one is to be doubted although in Lamb it was held that a police
photograph may not normally be led.11
(2) Witness participating in the preparation of a likeness construct
(i) Methods employed
For the purposes of seeking out and apprehending unknown offenders it has
always been elementary to try to convert a witness’s description of the appearance
of the culprit into a visual form. A witness may have the skill himself to draw the
offender from memory but more usually the police will employ an artist skilled in
portraiture. Through a process of question and answer, linguistic and pictorial
prompts, two-way cues and a large measure of trial and error the artist will seek
gradually to evolve a sketch concordant with the witness’s memory. In recent
times the traditional employment of an artist has been supplemented by manual,
paper, systems. These have been devised to enable composite likenesses to be
constructed by slotting together pictures of specific facial features chosen by the
witness from a selection of many different eyes, eyebrows, hairline, jawline,
cheekbones, forehead, noses, mouths, and so on.12 The first such system to be
introduced, Identikit, used drawings of facial features. Later, the Photofit system
system used photographs of a large selection of different facial features. More
recently, computerised systems were introduced, of which E-fit is perhaps the best
known,13 but which included such other systems as Pro-fit, Mac-a-Mug Pro, and
FACES.14 Once the witness expresses satisfaction as to the likeness it can be
shown to other witnesses to see if they recognise the person depicted, or it may be
released for publication in the media.
(ii) Constructs to be shown in accordance with Code D, Annex E.
Where the suspect’s identity is not known to the police, showing a witness
computerised or artists’ composites or similar likeness constructs or pictures
10
Bogan, op. cit., at p.186.
(1980) 71 Cr.App.R. 198, C.A. It was held that exceptionally it might be led where the suspect has
refused to co-operate in a subsequent identification procedure but in Williams (2000) unreported,
February 22, C.A., it was held that the availability of covert procedures precluded any need for recourse
to a police photograph. See also Bleakley [1993] Crim.L.R. 203, C.A. where the defendant tried to
speak to the witness the evening before the parade at which she identified him. It was suggested by the
defence that that was the reason why she had identified him at the parade and, in order to avoid their
being misled, the prosecution were allowed to refer to her original identification of him from a police
photograph.
12
Bruce, V., and Young, A., In the Eye of the Beholder, Oxford University Press, 1998, note at pp.180181, that the construct from an assemblage of isolated features is reminiscent of Leonardo da Vinci’s
attempt to construct an inventory of all possible facial features in order to provide instruction on the
drawing of portraits from a single glance at a face: see his Trattato, quoted by Gombrich, E.H., The
image and the eye: Further studies in the psychology of pictorial representation, Oxford: Phaidon
Press, 1976.
13
E-fit was developed jointly by researchers at the University of Aberdeen, the Home Office and in the
private sector: Bruce and Young, cited above at n.12, p.181
14
See Valentine, “Forensic Facial Identification,” cited in Chapter 1 above at n.10, para 17.31.
11
30
SUSPECT’S IDENTITY NOT KNOWN
(including ‘E-fit’ images) in order to obtain identification evidence must be carried
out in accordance with Annex E.15
(iii) Witness performance
Studies have consistently shown that these procedures can be poor at creating
a likeness of the offender. 16 Witnesses generally find it difficult to select individual
features, even when there is no need to rely on memory: composites constructed
with a photograph present throughout the exercise are often no better than
composites constructed by memory.
In an experiment designed to test performance, participants prepared
composites of former high school friends and teachers (that is, individuals whom
they had seen repeatedly over a number of years) and when these were then shown
mixed up with foil composites to other participants who had attended the same
high schools the accuracy of identifications was extremely poor.17 The study also
showed that confidence in the accuracy of the composite was unrelated to the
ability of others to identify the composite from the foils. It has been suggested that
when a number of different witnesses are asked to make a composite picture of the
same person and the same composite picture specialist is used throughout, the
specialist will have gained a preconceived idea of what the offender looks like
after creating the first representation and this is likely to bias the way he questions
other witnesses and interprets their responses when constructing subsequent
composites.18
(iv) Developing a new generation of systems
The existing computerised systems are little better than the older manual
systems and both systems are less effective than a skilled artist. However, a new
generation of facial composite systems are under development. According to the
following summary of their operation by Professor Tim Valentine of Goldsmith
College, University of London, they―
15
D3.3.
For a review of the relevant research see Davies, G.M. and Valentine, T., “Facial composites:
forensic utility and psychological research,” in Lindsay, R.C.L., Ross, D.F., Read, J.D. and Toglia,
M.P., Handbook of eyewitness psychology, Mahwah: LEA, in press, vol 2, “Memory for people,” cited
in ibid.
17
See Kovera, M.B., Penrod, S.D., Pappas, C., and Thill, D.L. “Identification of computer-generated
facial composites,” Journal of Applied Psychology (1997) 82, 235-246. See also Ellis, H.D., Davies,
G.M., and Shepherd, J.W., “A critical examination of the Photofit system for recalling faces,”
Ergonomics (1978) 21, pp.297-307; Ellis, H.D., “Face recall: A psychological perspective,” Human
Learning (1986) 5, pp.189-196. Bruce and Young, op cit., at p.181, have suggested that the poverty of
performance with Photofit likenesses may be as poor as it is because the method is based on the
assumption that a face representation can be deconstructed into its component parts, whereas face
recognition is probably holistic (as to which see below, Chapter 4, p.136). Furthermore, relationships
between different features are at least as important as the features themselves, but Photofit offers only
limited manipulation of features. Although E-fit is designed around a basic kit of parts of faces if
affords much more opportunity for global manipulations, blending and elaboration than with photofit
and the resulting images are more realistic.
18
See Kebbell, M.R., and Wagstaff, G.F., supra, p.25.
16
31
VISUAL IDENTIFICATION PROCEDURES UNDER PACE CODE D
“make use of a statistical model of facial appearance and a genetic
algorithm to converge on the desired facial appearance under the guidance
of the witness. Initially a set of random photographic-quality synthetic
faces are generated by the software and displayed on the screen. The
witness is asked to select the face that most resembles the culprit. The
software then generates a new ‘generation’ of faces that use the witness’s
selection to guide the search through the range of facial appearance (or
‘face space’). The software also introduces random variation to generate
the new set of faces. This process continues repeatedly in an interactive
manner. At first the faces are dissimilar and none may look similar to the
culprit. Gradually the facial appearance of the culprit is selected for. With
each successive generation the facial appearances converge on the desired
appearance. Systems under development include Eigen-Fit and Evo-Fit.
The great advantage of these systems is that the witness only ever has to
look at whole faces and does not have to select individual facial features.
This is important because experimental evidence shows that face
recognition is an holistic process and people find it very difficult to
analyse a face into its constituent parts or features. . . . The new
technology allows a number of innovations which are currently under
development. A 3D facial model would allow the witness to rotate the
head to see a three-quarter or profile view. Hand held devices could be
used to allow rapid deployment for a witness to construct a facial likeness
at the crime scene, within minutes of reporting the crime. The facial
appearance generated under guidance by the witness could be used to
search a database of known offenders while the police are still at the
crime scene.”19
In their early evaluations, Valentine reports, the new systems had not improved on
the performance of the older systems. However, something of a breakthrough in
the use of computer generated constructs was given national prominence at the end
of November 2007 with reports that early in 2008 Derbyshire police were to begin
piloting a system based on research by psychologists at Stirling University and the
“Forensic Facial Identification” (above, Chap 1, at n.10), paras 17.14 and 17.15, citing Frowd, C.,
Hancock, P. J. B. and Carson, D., ‘EvoFIT: A holistic evolutionary facial imaging technique for
creating composites’ (2004) 1 Transactions on Applied Psychology 1-21 (Association for Computing
Machinery); Frowd, C., Carson, D., Ness, H., McQuiston-Surrett, D., Richardson, J., Baldwin, H. and
Hancock, P., ‘Contemporary composite techniques: The impact of a forensically-relevant target delay’
(2005) 10 Legal and Criminological Psychology 63-91 (in press); Gibson, S., Pallares Bejarano, A. and
Solomon, C., ‘Synthesis of photographic quality facial composites using evolutionary algorithms,’ in
Harvey, R. and Bangham, J. A., (eds.) Proceedings of the British Machine Vision Conference 2003,
London: British Machine Vision Association, 2003, 221-230; Valentine, T., Davis, J. P., Thorner, K.,
Solomon, C., and Gibson, S., “Evolving and combining facial composites: Between-witness and withinwitness morphs compared,” (2010) Journal of Experimental Psychology: Applied, 61, 72-86 (showing
that the new system of Efit (Efit V) works well especially when multiple composite from different
witnesses or even the same witness are merged.)
19
32
SUSPECT’S IDENTITY NOT KNOWN
University of Central Lancashire. 20 The research had found that successful
matching of a facial composite can be improved sevenfold (from an average of 3.7
to 26 per cent) by presenting the composite as a series of computer generated
animated caricatures, exaggerating specific facial features. 21
(v) Overshadowing
Research has also demonstrated that the phenomenon of overshadowing 22 can
undermine the ability to make an accurate identification following participation in
the preparation of a mechanical or computer generated likeness. Persons who had
attempted an Identikit of a suspect did not perform as well as a control group at a
later identification parade and in the two hours it took to create a likeness an
immense amount of verbal overshadowing could have occurred to contaminate the
memory of the witnesses by the time they participated in the identification test. 23
(vi) Development of an alternative strategy to eliminate contamination factors
In recent years some police forces have tended to eschew the strategy of
inviting witnesses to view images from an electronic gallery of known offenders,
preferring instead a practice apparently designed to eliminate the contamination
factors which undermine the integrity of a later formal identification procedure
where a suspect becomes “known.” In particular it overcomes the problem that
where a witness makes a tentative identification as a result of a modern version of
the rogues’ gallery search a later formal identification procedure may be no more
than an identification of the person previously picked out from the gallery. The
new procedure involves a police officer acting in effect as a filter by trawling the
central data base for images most closely matching the description of the culprit.
The witness will then view the shortlist of images selected by the officer.
20
See The Sunday Times, 25 November 2007. The research was published by Frowd, C.D., Bruce, V.,
Ross, D., McIntyre, A. and Hancock, P.J.B., “An application of caricature: how to improve the
recognition of facial composites” (2007) 15 Visual Cognition, 1-31 (forthcoming), available in
microsoft word at http://www.uclan.ac.uk/psychology/research/people/Frowd/word 3.doc.
21
According to The Sunday Times report (above) the system involves distorting and arranging facial
features and does so “by marking the different elements of the face – from its overall shape to the size
of the nose and separation of the eyes – with 200 points. Each point is then compared with the position
of its counterpart on an average face of the same sex, age and racial group, produced by merging large
numbers of different images. Any differences from the norm are then exaggerated to generate a
caricature. Different versions of the face are produced, ranging from an extreme caricature to a blander
version with all the exaggerations removed. Conventional static Photofits often include mistakes that
can prompt the brain to reject a particular match. The animated caricature system overcomes this by
including the blander version of the face, allowing poorly recalled features to be ignored. By morphing
from the blander version to the extreme caricature, the brain is able to detect a possible match more
often.” According to the researchers, “the identity of the face seems to ‘pop out’ for one frame in the
sequence.”
22
See Chapter 1, p.21, above.
23
Research by Cornish, referred to without full citation by McKenzie, I., and Dunk, P., “Identification
parades: psychological and practical realities,” in Heaton-Armstrong, A., Shepherd, E., and Wolchover,
D. (eds.), Analysing Witness Testimony, London: Blackstone Press, 1999, pp 178-193, at p.184, note.
33
VISUAL IDENTIFICATION PROCEDURES UNDER PACE CODE D
(vii) Admissibility
Approval by the witness of the evolved likeness renders it his own
description of the person depicted and ousts any issue of hearsay. Such constructs
differ from narrative, verbal, accounts in that they are not treated as self-serving or
previous consistent statements but are admissible in the first instance in their own
right as a discrete type of evidence analogous to a photograph of the culprit, albeit
imperfect and created after the event.24 As with CCTV recordings or stills they
may be used by the jury to compare with the appearance of the defendant. 25
(3) Code D, Annex E provisions
(i) Supervising officer
An officer of sergeant’s rank or above shall be responsible for supervising and
directing the showing of photographs although the actual showing may be done by
another officer or civilian support staff. 26 It is to be noted that there is no
requirement for independence from the inquiry, a reflection of the assumption that
with no suspect there is no motive to point the witness in the direction of any
individual.
(ii) Confirming first description prior to showing of photographs
Annex E.2 states—
“The supervising officer must confirm [sic – that?] the first description
of the suspect given by the witness has been recorded before they are
shown the photographs. If the supervising officer is unable to confirm the
description has been recorded they shall postpone showing the
photographs.”27
This provision is ambiguous. If the officer is able to confirm that a description was
not recorded that is perhaps only another way of stating that he will be unable to
confirm that it was recorded, so there can be no showing of photographs until the
description is recorded. However, what if it is confirmed that the witness never
gave a description? The use of the definite article suggests that the embargo only
applies where the description given has not been recorded. Conversely it will not
apply where ‘a’ description has not been given; confirmation of non-recording will
24
Cook (1987) 84 Cr.App.R. 369. Its admissibility may survive a subsequent identification which is
less than satisfactory (ibid.), the failure of the witness to pick out the suspect at an identification parade
(Okorudu [1982] Crim.L.R. 747, CCC, but cf. O’Brien et al [1982] Crim LR 746, CCC) or the
exclusion of a later positive identification as inadmissible (Constantinou (1990) 91 Cr.App.R.74, C.A.).
See Bogan, op. cit., p.176.
25
See below pp.42-43.
26
Annex E.1.
27
Where it is proposed to show photographs to a witness in accorrdance with Annex E it is the
responsibility of the officer in charge of the investigation to confirm to the officer responsible for
superivsing and directing the showing, that the first description of the suspect given by that witness has
been recorded: Note for guidance 3E. If this description has not been recorded, the procedure under
Annex E must be postponed: ibid.
34
SUSPECT’S IDENTITY NOT KNOWN
not arise. However, possibly, or even probably, the intended effect of the
paragraph’s rather convoluted wording is that photographs should not be shown
unless and until a description has been given and recorded. Perhaps the paragraph
is worded on the assumption that a first description would normally be requested at
an early stage as a matter of elementary police practice—even in cases where the
culprit is well known to the witness. In other words the paragraph assumes that
there will always have been a description and the only doubt is whether the record
was properly preserved. It certainly ought to be second nature for officers to ask..
Since normally after an offence or incident involving a sighting no time ought to
be wasted before the witness is shown photographs the paragraph arguably
requires the recording of any description forthwith.
(iii) One witness at a time to be shown photographs
Only one witness must be shown photographs at any one time. 28
(iv) Requirement for privacy
Each witness must be given as much privacy as practicable.29
(v) No communication between witnesses
During the showing of photographs the witnesses in the case must not be
allowed to communicate with each other. 30
(vi) Not less than twelve photographs to be shown
The witness shall be shown not less than twelve photographs at a time, which
must, as far as possible, all be of a similar type. 31
(vii) Caution that photograph of culprit may not be among those shown
When witnesses are shown photographs they must be told that the photograph
of the person they saw may, or may not, be amongst them.32
(viii) Instruction to indicate if positive identification cannot be made
Witnesses must be told that if they cannot make a positive identification they
should say so.33
(ix) Instruction not to decide until at least twelve photographs have been viewed
Witnesses must be told that they should not make a decision until they have
viewed at least twelve photographs.34
(x) Witness must not be prompted or guided
Witnesses must not be prompted or guided in any way but must be left to
make any selection without help.35
28
Annex E.3.
Annex E.3.
30
Annex E.3.
31
Annex E.4.
32
Annex E.5.
33
Annex E.5.
34
Annex E.5.
29
35
VISUAL IDENTIFICATION PROCEDURES UNDER PACE CODE D
(xi) Positive identification precludes showing of photographs to other witnesses
If a witness makes a positive identification from photographs, unless the
person identified is otherwise eliminated from enquiries or is not available, other
witnesses must not be shown photographs. 36 However, both they, and the witness
who has made the identification, must be asked to attend a video identification
unless there is no dispute about the suspect’s identification. 37
(xii) Selection followed by inability to confirm the identification
If the witness makes a selection but is unable to confirm the identification the
person showing the photographs must ask the witness how sure they are that the
photograph they have indicated is the person they saw on the specified earlier
occasion.38
(xiii) Consequence of identification from prepared composite
When the use of a computerised or artist’s composite or similar likeness has
led to there being a known suspect who can be asked to participate in a video
identification, that likeness must not be shown to other potential witnesses. 39
(xiv) Prior to video-identification suspect and solicitor must be informed of
previous showing of photographs or prepared composite to the witness
When a witness attending a video identification has previously been shown
photographs or a computerised or artist’s composite or similar likeness, the suspect
and their solicitor must be informed of the fact before the video identification takes
place.40 It is the responsibility of the officer in charge of the investigation to notify
the identification officer that this is the case.41
(xv) Photographs must not be destroyed
None of the photographs shown must be destroyed, whether or not an
identification is made, since they may be required for production in court. 42 They
shall be numbered and a separate photograph taken of the frame or part of the
album from which the witness made an identification as an aid to reconstituting
it.43
(xvi) Documentation
Whether or not a positive identification is made, a record must be kept of the
showing of photographs on forms provided for the purpose. 44 This must include
anything said by the witness about the identification or the conduct of the
35
Annex E.5.
Annex E.6.
37
Annex E.6.
38
Annex E.7.
39
Annex E.8.
40
Annex E.9.
41
Annex E.9.
42
Annex E.10.
43
Annex E.10.
44
Annex E.11.
36
36
SUSPECT’S IDENTITY NOT KNOWN
procedure, any reasons it was not practicable to comply with any of the provisions
of Code D governing the showing of photographs and the name and rank of the
supervising officer.45 The supervising officer must inspect and sign the record as
soon as practicable.46 It is noteworthy that these provisions do not preclude the use
of audio or video recording of the showing of photographs, although the common
practice is to maintain only a written record. A written record will not pick up
nuances of vocal intonation and inflexion or the subtleties of facial expression and
body language of the kind which may prove significant in the context of assessing
the validity of a formal identification made later and the weight to be given to the
witness´s evidence in court. There is therefore a very strong argument for making
it compulsory to video-record the procedure, more particularly to compensate for
the necessary absence of any prospective defence legal representative.
(4) Chance or unofficially occasioned exposure
to images of a possible culprit
Hitherto in this section we have been examining the position where a suspect is not
yet known and the showing of photographs to an eyewitness is officially initiated
and supervised with a view to his identifying the perpetrator. By contrast, it may
happen that a first identification is made when a relative, friend or other associate
of an eyewitness informally and casually shows him a photograph of a person
which the witness then claims is the pepetrator, or he otherwise by chance sees the
photograph of such a person. Provided the jury be adequately informed of the
circumstances in which the photograph was shown or observed and the
identification was made there ought to be no instrinsic reason why this should
necessarily taint a subsequent formal identification procedure. In Alexander and
McGill47 the complainant made an initial identification from images posted on
Facebook and the neglect of the police and the Crown Prosecution Service to
obtain the relevant Facebook pages had placed the appellants at a considerable
disadvantage when it came to assessing the complainant’s identification of the
appellants in a subsequent video identification parade. When an initial
identification was made through social media websites it was incumbent on the
police and CPS to obtain, in as much detail as possible, evidence of the
identification, including the original images. However, the jury had been treated to
a detailed account of how the initial identification had come about and knew about
the Facebook photographs and it was held that properly directed it was possible for
them to take account of the appellants’ disadvantage and to consider carefully the
reliability of the identification in those circumstances.
45
Annex E.11.
Annex E.12.
47
(2012) 177 J.P. 73, C.A.
46
37
VISUAL IDENTIFICATION PROCEDURES UNDER PACE CODE D
B. CIRCULATION TO THE MEDIA AND TO THE POLICE INTERNALLY
OF CCTV, OTHER VIDEO FOOTAGE AND STILLS OF INCIDENTS
(1) Detecting and tracing suspects
(i) Widespread use of video surveillance installations and mobile telephone
With the ever increasing spread of closed circuit television (CCTV)
surveillance systems the police will often have obtained footage relevant to a
particular incident at a very early stage in their inquiries into an offence and this
may include viable images of a suspect. 48 Indeed, for a number of years it has been
standard practice for the police, at the start of any inquiry, to investigate whether
the scene of an offence was covered by a CCTV recording. On occasions this may
yield a high resolution still image of a suspected perpetrator sufficient to furnish
proof of identity. Again, with the ubiquity of mobile telephones equipped with
video and still cameras it has become a commonplace for members of the public
present at the scene of a crime to record crucial episodic evidence.
(ii) General publication
Suspect not known Where the identity of the person shown in the images is
not known to the police investigating the incident it is the common practice in the
case of offences attracting prominent public interest for images of the suspect to be
released to the news media in general or specialist programmes such as the BBC’s
Crimewatch, in the hope that members of the public might recognise the person
shown. These may be actual photographs or artist’s impressions prepared with the
help of an eyewitness or manual or computerised constructs (identikit, photofit or
e-fit).
Suspect known Similarly, where the identity of the suspect is known but the
suspect is elusive it is not uncommon in high profile cases for the police to release
a photograph to the media for the purpose of tracing his whereabouts.
(iii) Internal police circulation
As distinct from public dissemination, recorded moving and still images or
likeness constructs are commonly circulated internally within the police service to
facilitate possible recognition by officers who may happen to have had dealings
with the suspect or to assist in the tracing of known suspects. This will often
involve comparison between the seized imagery and official photographs of known
offenders held on file.
It is now ubiquitous practice for one or more officers in a borough division to
be employed on the dedicated full-time duty of scrutinising CCTV video imagery
of recent local offences, or stills derived from such footage, and comparing it with
high quality official photographs of known local offenders in order to try to
For an account of the evidential issues involved in the use of such images see Valentine, “Forensic
facial identification,” cited above at Chapter 1, n.10, section H. For a recent study see Davis, J. P., and
Valentine, T., “CCTV on trial: Matching video images with the defendant in the dock,” (2009) 23
Applied Cognitive Psychology, 482-505 (reporting error rates in human face matching from CCTV
images; average is about 20%, but for some particular faces can be as high as 45 per cent).
48
38
SUSPECT’S IDENTITY NOT KNOWN
establish a match. If the video imagery is of sufficiently high quality to furnish a
clear image of the offender’s face the case may be treated as one of recognition on
the basis that the suspect had become known to the officer from a file photograph
which was indisputably his. Out of an abundance of caution the officer could enlist
a colleague who local research and intelligence indicates has had dealings with the
known offender or is otherwise reasonably familiar with him, to obtain a second
recognition.
In other cases, however, the moving imagery may afford a less clear view of
the offender’s face and any recognition would necessarily need to take account of
his facial and bodily appearance and distinctive movements, gait and gestures. On
an initial viewing of the CCTV footage the officer compares it with the
photographs of a number of local known offenders. Selecting one who most
closely resembles the person on the recording the obvious course would then be to
call in a local colleague who knows the offender. That officer would then be
invited to scrutinise the images, paying particular regard to the totality of personal
characteristics which might conduce to his recognition of the man.
In either case D3.35 will be applicable to require compliance “as far as
possible” with the principles for identification by photographs in Annex E and the
stringent provisions for record keeping laid down in D3.36.
It was stressed in Smith (Dean Martin) and others49 that although a police
officer who views a CCTV recording in his official capacity in order to see
whether he recognises anyone in it is not in the same position as a witness who is
asked to identify a person he has seen committing a crime, the safeguards provided
by Code D are of equal importance in such a case. Thus, in particular, where an
officer does recognise someone in such a situation, there must be some record
which assists in gauging the reliability of that assertion of recognition.
Accordingly, it is important that the officer’s initial reactions to the recording are
set out and available for scrutiny, including whether he fails to recognise anyone
on first viewing but succeeds in doing so subsequently, what words he uses by way
of recognition, whether he recognises anyone else, whether he expresses any doubt
as to the recognition, and what it is about the image that he says has triggered the
recognition; it is therefore vital that a protocol is prepared which provides the
safeguard of measuring the recognition against an objective standard of
assessment, else there can be no assurance that an officer is not merely asserting
that which he wishes and hopes, however subconsciously, to achieve, that is to say
the recognition of a guilty participant.
However, recognition by police officers of suspects depicted on images will
not always take place in purposive, formal, viewing sessions. In Moss,50 for
example, an off-duty police officer was at the police station to check his emails
when he passed a computer screen showing an image taken from CCTV footage of
49
[2009] 1 Cr.App.R. 521 (36). For a further case of recognition following internal police circulation of
CCTV footage see Lariba [2015] Crim.L.R. 534, C.A., cited above at p.11.
50
[2011] Crim.L.R. 560, C.A. (commentary by Andrew Roberts).
39
VISUAL IDENTIFICATION PROCEDURES UNDER PACE CODE D
a burglary and recognised the appellant in the still. In such circumstances, the
same degree of formal record-keeping as in a purposive viewing session could
hardly be expected but it was important for the jury to be able to assess the
reliability of the recognition and evidence enabling the jury to do that could be
given in different ways. In the present case, the officer immediately reported the
recognition to his superior, made a note of it when he was back on duty seven days
later, and gave a description of his previous contact with the appellant, and thus an
explanation of his ability to recognise him, all of which provided a basis upon
which the jury could judge the reliability of his evidence.
Other misconduct implicit in recognition by a police officer Evidence of
recognition by a police officer either from direct observation of the offence or
from scrutinising CCTV imagery of the incident will of course plainly suggest that
the defendant is a known offender. In principle this will not preclude its strict
admissibility but circumstances may conduce to its exclusion. 51 On the other hand,
if the recognition arises from the officer’s involvement as a police witness in
relation to the defendant’s commission of an offence of a kind that would normally
lead to the prosecution applying to adduce it under the bad character provisions of
the Criminal Justice Act 2003, there would on that account be no reason to exclude
the recognition evidence. More generally, however, the problem can in most cases
be circumvented by not adducing evidence of recognition but leaving it to the jury
to decide the issue on the basis of comparison with the defendant in the dock.52
(iv) Code D provision
The practices of public dissemination and internal police circulation are given
express sanction by D3.28, which provides that nothing in Code D inhibits
showing films or photographs to the public through the national or local media, or
to police officers for the purposes of recognition and tracing suspects.53 However,
when such material is shown to obtain evidence of recognition, the procedures in
Part B (evidence of recognition by showing films, photographs and other images)
will apply.54 The issue of recognition was discussed in part in Chapter 1 and will
be further considered in Chapter 3 in the context of the topic of whether there is
any useful purpose in undertaking a controlled identification procedure.
(v) Tracing suspects
The reference in D3.28 to “tracing suspects” shows that the purpose of
disseminating relevant material under the paragraph is not limited to cases where
there is no known suspect but embraces the purpose of discovering the
whereabouts of suspects whose identity is already known.
51
See eg Fowden and White [1982] Crim.L.R. 588, C.A. (conviction quashed where a store detective
and a police officer viewing a video-recording of a shop-lifting incident had been allowed to give
evidence of recognition of the suspect in relation to another alleged incident a week later).
52
As to which see below, pp.42-43, under paragraph (2), “Use of CCTV footage or stills in court.”
53
Since D3.28 permits the showing of imagery for the purposes of recognition it location in Part A is
anomalous and was presumably an error.
54
D3.28.
40
SUSPECT’S IDENTITY NOT KNOWN
(vi) The phenomenon of “unconscious transference”
Academic and research psychologists have developed the concept of a
phenomenon described as “unconscious identity transference,” according to which
the image of a proclaimed suspect, usually one nationally televised or otherwise
disseminated in the media, may blend with, or even oust, the actual culprit’s face
in the memory of a witness who has been exposed to the image and the publicity
related to it. At a subsequent identification process it may become impossible for
the witness to differentiate between the images in his mind and the result may be
that the suspect, wholly innocent, may be wrongly identified.55 It has been
suggested that the requirements to preserve images shown in the media and to
ascertain whether the witness has previously seen such images will provide a basis
for the court to consider whether a positive identification may have been adversely
influenced and contaminated by prior sight of the images. 56 Whether or not
unconscious identity transference is empirically verifiable, it is difficult to see how
exactly a court might go about using the prior images to determine if the
phenomenon has played a part in the instant case. Would trial judges in the English
and Welsh jursidiction be prepared to admit theoretical expertise into evidence
when it may be no more than supposition? It is a hard enough exercise persuading
courts in this country to allow evidence of eyewitness phenomena validated by
empirical research.
(2) Retention of copy material disseminated in the media
When a broadcast or publication is made (as under D3.28), a copy of the relevant
material released to the media for the purposes of recognising or tracing the
suspect must be kept and will therefore be available for later inspection by the
suspect or their solicitor who must be allowed to view such material before any
video or other formal identification procedure is carried out, provided it is
practicable and would not unreasonably delay the investigation. 57 Each eyewitness
involved in the procedure must be asked, after they have taken part, whether they
have seen any broadcast or published films or photographs relating to the offence
or any description of the suspect and their replies must be recorded.58
Ross, D., Ceci, S.J., Dunning, A. and Toglia, M., “Unconscious transference and line up
identification, toward a memory blending approach,” in Ross, et al. (eds) Adult eyewitness Testimony,
Cambridge: Cambridge University Press, 1994, pp.80-100. For a graphic illustration of the
phenomenon in which an image of the man later tried (though never more than obliquely “identified”)
was published under the banner “bomber”: see Wolchover, D., Culprits of Lockerbie, online,
www.DavidWolchover.co.uk.
56
See McKenzie, I., and Dunk, P., “Identification parades: psychological and practical realities,” in
Heaton-Armstrong, A., Shepherd, E., and Wolchover, D. (eds.), Analysing Witness Testimony, London:
Blackstone Press, 1999, pp 178-193, at p.185.
57
D3.29.
58
Ibid. These requirements do not affect any separate requirement under the Criminal Procedure and
Investigations Act 1996 to retain material in connection with criminal investigations. It is noteworthy
that the paragraph is silent about the retention of material shown to police officers under D3.28.
55
41
VISUAL IDENTIFICATION PROCEDURES UNDER PACE CODE D
(3) Use of CCTV footage or stills in court
With the ubiquity of static CCTV cameras and mobile telephones very many
prosecutions nowadays are supported by images generated by such technology.
These may depict a person alleged to be the defendant actually engaged in
committing the offence in question or otherwise present at a location, and evincing
behaviour, demeanour and deportment, from which his involvement may
reasonably be inferred. Although the present work deals with Code D regulation of
identification procedures, it is necessary to refer here to an important rule of court
practice: provided the images are of sufficient clarity to be capable of furnishing
proof that they depict the defendant juries may reach such a finding by comparing
the appearance of the defendant sitting in the dock with the images on screen.59
Indeed it might very well be futile to try to prohibit them from attempting such an
exercise.
The images need not be so clear as to permit the jury to come to a conclusion
without expert assistance. As in Clare and Peach60 this can be provided by an
officer with special knowledge of the recording acquired through extensively
repeated playing of the recording, both at normal speed and in slow motion and on
a frame by frame basis, possibly using highlighting and enhancement techniques.
Such ad hoc expert analysis might well involve comparison with other imagery
proved or not disputed to be that of the defendant, such as a CCTV recording taken
of him in the police station custody suite following his arrest or still images taken
at that stage. (Such imagery will also assist if the defendant has significantly
altered his appearance since his arrest,61 although he may have altered his
appearance between the original incident and his arrest.)
Apart from reference to control imagery, the expert evidence might make
specific reference to those facial features, head and body shape and size and to
characteristic gestures and movements which are clearly discernible from looking
at the defendant as he sits in the dock.62 Furthermore imagery showing the
depicted person’s gait may be compared with that of the defendant as he makes his
way to or from the witness box. Comparison between the contentious imagery and
Attorney-General’s Reference (No. 2 of 2002) [2003] 1 Cr.App.R. 21, C.A. But cf Morrisey (2014)
78 J.C.L. 460, C.A. (appellant convicted of shoplifting three times on same day; CCTV images of
insufficient quality to permit an identification showed the thief to be a woman matching her
description; appellant admitted to police she had visited the shop three times on that day but denied
theft and later claimed that she had lied in order to protect her twin sister who had previous convictions
and adduced photographs of the sister; after retiring jury asked to see CCTV footage again; held, they
should have been warned against “performing an impermissible detection task” of determining the
identity of the thief based on a comparison of the CCTV images, the sister’s photographs and the
appearance of the appellant in the dock, but appeal nonetheless dismissed); for trenchant criticism of
the judgment see Criminal Law Week commentary, CLW/15/1/2).
60
[1995] 2 Cr.App.R. 333, C.A. (above, p. 10).
61
Dodson and Williams (1984) 79 Cr.App.R. 220, C.A.; Downey [1995] 1 Cr.App.R. 547, C.A.
62
However, a defendant may not be compelled to stand up in the dock for an inspection by the jury. No
adverse inference is permissible from his refusal to do so: R v McNamara [1996] Crim.L.R. 750, C.A.
To avoid prejudice and the need for a post hoc corrective direction the prosecution ought to give
warning in the absence of the jury that they would seek to invite an inspection.
59
42
SUSPECT’S IDENTITY NOT KNOWN
the defendant in court has the considerable advantage that it will obviate any risk
of conveying to the jury the fact that the defendant had a police record implicit in
evidence of recognition by a police witness.
No invariable requirement for caution as to care In Shanmugarajah and
Liberna it was held that there is no invariable rule that when the jury are invited to
make a comparison between a contentious image and the defendant in the dock
they are required to be warned of the risk of mistaken identification; the modern
practice was not to require judges to direct juries as to the obvious and it was a
statement of the obvious to direct the jury that they must be careful.63 The careful
scrutiny which is incumbent on the jury when comparing real evidence – that is,
images and the defendant in the dock – is obviously of a different calibre than than
which is necessary for them to deploy when assessing evidence of what a witness
observed and remembered. On the other hand, as the editor of Criminal Law Week
succinctly observes, the need for caution is every bit as obvious as in a classic
Turnbull case:
“Just as it is notorious that honest and convincing witnesses may be
mistaken about their identifications . . . so it is notorious
among
practitioners in the criminal courts that there are few photographs that
could not match several people equally convincingly.” 64
C. STREET IDENTIFICATIONS
(1) The common scenarios: extrinsic factors of weakness in identifications
The criminal courts frequently have to deal with cases where the police arrive on
the scene within a very short time of an alleged offence and the complainant or an
eyewitness is then taken on a tour of local streets to search for the culprit or
culprits on the supposition that they may still be in the vicinity. A potential suspect
is spotted, is positively identified by the witness, and is duly arrested. 65 A variation
on the theme occurs where the suspect has been stopped by police nearby on the
basis of a description and the complainant/witness is then brought to the location
where the suspect is being detained by the police, and makes a positive
identification.66
63
[2015] 2 Cr.App.R.215(14), C.A, preferring Downey, supra, to Blenkinsop [1995] 1 Cr.App.R. 7,
C.A.
64
CLW/15/31/2; Turnbull [1977] Q.B. 224, C.A. As the editor points out, in Shanmugarajah it was
unclear as to exactly what the jury were being asked to scrutinise. According to the judgment the judge
began his directions “on the photograph. He directed them that they should very much consider the
quality and the clarity of the image before they went any further. He also directed them that it would be
‘completely wrong’ for the jury . . . to do nothing more than start comparing the photograph and the
still from the CCTV footage.” The passage relates to a comparison between images – that of the crime
scene and one indisputably of the appellant – not between images and the defendant in the dock.
65
See, eg, Brown [1991] Crim.L.R. 368, C.A.
66
See, eg, Coulman v D.P.P. [1997] C.O.D. 91 Q.B.D. In the leading case of Forbes [2001] 1 A.C., at
p.487, the witness spotted the assailant minutes after the offence, called the police and was then driven
around by them until he pointed out the appellant as his assailant.
43
VISUAL IDENTIFICATION PROCEDURES UNDER PACE CODE D
Another not uncommon circumstance of street identification, as it is called, is
that of the complainant or witness who by chance sees the alleged offender in the
street or elsewhere on some occasion perhaps weeks or days or even hours after
the relevant incident and then calls the police.67 Purposive, as distinct from
fortuitous, street identifications after a lapse of time are occasionally arranged by
the police where, for example, the culprit is thought to make the same journey
regularly or to frequent the same location, in which case officers will take up a
speculative observation with the witness.68 The surveillance need not necessarily
be live. Thus, where there were no known suspects following an outbreak of
violence at a public house and the police installed a video system which enabled a
witness to make an identification from recordings of people subsequently using the
premises, the procedure was apparently treated as analagous to a street
identification or group identification.69
The imperative of prompt search and capture necessitating these exercises are
fundamental to law enforcement and are likely to offer the only chance of bringing
offenders to book. On the other hand, the obvious weaknesses implicit in street
identification require a balance to be struck between the detection of offenders and
the protection of defendants. That balance is expressed in D3.2, which allows
street identification where the suspect’s identity is not known. 70 So long as the
accumulated information, then, does not furnish reasonable grounds to suspect the
person on whom attention has focused street identification is permissible. Note for
Guidance 3F draws attention to the fact that the admissibility and value of street
identification evidence may be compromised if the suspect’s identity becomes
known before the procedure. Not only may it result in exclusion of the street
identification evidence but may have the knock-on effect of vitiating the
admissibility of a later formal procedure.71
The potential pitfalls in street identification are fairly obvious. The
environmental conditions in which they often take place may in themselves
undermine their reliability. The lighting at the place of identification may be poor,
or no better than at the location of the crime, and the witness may be at a distance
from the person to be identified when the identification is made.72 In any event,
67
Noted by Devlin, para 4.16. In Wait [1998] Crim. L.R. 68, C.A., the complanaint saw two of his
assailants some days after the attack and flagged down a police vehicle whereupon they were arrested.
68
In Popat [1998] 2 Cr.App.R. 208, C.A., the victim of an attack subsequently saw her assailant in the
same vicinity and then, over a number of days, kept observation there with a police officer until
identifying the assailant.
69
Jones and others (1994) 158 J.P. 293, C.A.
70
“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.”
71
See Bogan, op.cit., paras. 3.27 and 10.65.
72
In one case of memory the complainant was robbed of money in a dimly lit street during a weekend
neighbourhood carnival. It emerged in cross-examination that the fleeting view he had of the face of his
black assailant was when, lying on the tarmac, he looked up at the man, who was looking down at him
with his head silhouetted against a distant street light behind him. On agreed evidence the only street
light in front of the robber was a considerable distance away and it was strongly argued that the
contours of his face must have been difficult to distinguish. Minutes later the complainant reported the
44
SUSPECT’S IDENTITY NOT KNOWN
there will be little prospect of keeping an unassailable record of these factors.
Again, the limited recording facilities available to the police may admit of
uncertainty and ambiguity as to the manner in which the purported identification
was expressed. If it was by pointing at individuals in a group there is obvious
scope for error if the exact target was misinterpreted and not clarified in words. It
is always to be hoped that the police will take the greatest pains to ensure fairness
and accuracy in their recording of detail but, especially where there is a need to
watch out for possible escapes, or to prevent further eruption of public disorder,
the ideal is often unachievable.
The very presence in the vicinity of a person who may in broad terms resemble
the culprit or one of a group of perpetrators may lead the complainant or witness to
presuppose that the person is indeed the culprit, particularly where there are few
members of the public in the vicinity at the time and the witness is in an excited
and suggestible state. In the experience of practitioners identifications “on the
hoof” frequently appear to be influenced by a distinctive article of attire (which
may in fact be in common currency) rather than the emphasis on precise physical
characteristics such as facial appearance, gait or voice and speech pattern. The
importance of clothing is clearly not to be discounted, because the shorter the lapse
of time the less likely will it have occurred to the culprit to discard a distinctive
item or to exchange it with a confederate in the hope of sowing confusion. On the
other hand, the more distinctive and unusual the item the more likely will be the
formation of reasonable grounds for suspicion and hence the requirement for a
formal procedure.
Again, where a street robbery, for example, has been committed by a group the
purported identification of individuals within a group observed afterwards often
appears suspiciously to lay stress on group resemblance as between the
perpetrators and those pointed out afterwards, in terms of number, approximate
age, mode of dress and ethnic origin. It may be that in certain circumstances the
sighting of no other persons in the vicinity coupled with the short interval of time
between the offence and the stop and group resemblance may by a process of
elimination justify the inference that the group is one and the same. By the same
token, however, these factors may very well form the basis of reasonable grounds
for suspicion against each member of the group, necessitating formal procedures.
Apart from the weaknesses discussed above, street identification involves the
problem of influence by the force of suggestion which inheres in its very
offence at a mobile police post located at the junction of two roads on the carnival route and as he left
the post the defendant was passing by chance across the junction among a large and milling crowd. The
complainant professed to recognise him as the robber and pointed him out to two police officers who
immediately arrested the defendant. No identification parade was held but the case went to the jury
anyway on account of alleged admissions by the defendant. The defence called a member of their
professional team who gave evidence that the normal lighting at the junction was too poor to illuminate
the faces of black people passing by at the time of the experiment. The police evidence was tainted by
discrepancies and the defendant was happily acquitted.
45
VISUAL IDENTIFICATION PROCEDURES UNDER PACE CODE D
mechanics. This is discussed next in the context of the measures designed to
reduce its impact.
(2) Identification of temporary “detainees” (ie potential
suspects who have been stopped by the police)
(i) The fundamental problem of inherent suggestion
One of the benefits of “all cars, all points” rapid response to street crime and
the pervading ownership of mobile telephones is that the police often arrive in the
vicinity so quickly and in such numbers that they are able to spot and stop possible
suspects on the basis of information received over the air even before there has
been any opportunity to take the complainant or other eyewitness on a tour of the
neighbourhood to hunt down the culprits.
The fundamental problem with identification of persons who have already
been stopped by the police when the witness is brought to the location of the stop
is that the very fact that the police will manifestly already have targeted a possible
culprit and will be standing very near to the individual in itself carries the strongest
taint of suggestion that the person would not have been stopped unless the police
had very good reason to suspect guilt. 73 The antidote to the problem provided by
the 1995 version of Code D was supposedly set out in the well known paragraph
D2.17 which perfunctorily instructed:
“Care should be taken not to direct the witness’s attention to any
individual.”
The sentiment was pious but the advice offered little protection against the
influence of suggestion which inevitably arises where police officers are
necessarily having to stand at close quarters to a provisional suspect. The basic
problem is always going to exist of balancing the need to keep a close eye on
would-be escapers who are not yet in custody because the police are supposedly
constrained by the belief they have as yet insufficient information to justify arrest
but who may very soon be in custody after being identified, 74 with that of trying to
avoid too obviously “nudging and winking” by the mere fact of physically
juxtaposing a single individual or a group of persons with police officers in
uniform. A new sense of realism in acknowledging the basic conundrum has been
injected into the 2003 edition of the code, which now makes the admonishment
that care should be taken not to direct the witness’s attention to any individual
conditional on this being unavoidable.75
73
See Vaughan (1997) The Independent 12 May, C.A. (judgment 30 April). Such a preconception may
have been reinforced as a result of overhearing police conversation: see Bogan, op.cit., para. 5.14, p.65.
74
See Malashev [1997] Crim.L.R. 587.
75
See Roberts, A. and Clover, S., “Managerialism and Myopia: The Government’s Consultation Draft
on PACECode D,” [2002] Crim.L.R. 873, at p.888; Clover, S. and Roberts, A., “Short-sighted or
forward-looking?” (2002) New Law Journal 870, at p.872 (June 7).
46
SUSPECT’S IDENTITY NOT KNOWN
(ii) Statutory attempt to mitigate the problem of inherent suggestion
The measure removing from the code the former absolute prohibition on
drawing the witness’s attention to a particular individual where it is unavoidable is
contained in a somewhat forlorn attempt76 to introduce features of a more
formalised controlled procedure to be followed “where a witness [is] taken to a
particular neighbourhood or place to see whether they can identify the person they
saw.” The paragraph (D3.2) continues:
“Although the number, age, race, general description and style of
clothing of other people present at the location and the way in which any
identification is made cannot be controlled, the principle applicable to the
formal procedures under paragraphs D3.5 to D3.10 [ie. where a suspect is
known and is available] shall be followed as far as practicable.”
D3.2 then gives a number of examples which are discussed next, although not
necessarily in the order in which they appear in the code text.
(a) First descriptions Paragraph D3.2(a) states
“where it is practicable to do so, a record should be made of the
witness’s description of the suspect, as in paragraph 3.1(a), before asking
the witness to make an identification.
As already explained in relation to the general topic of the impotance of taking and
recording first descriptions, the obvious purpose of taking such a description as
early as possible is to serve as a check against the subsequent intrusion of
extraneous influences and a yardstick for testing the accuracy of any subsequent
identification.77 As the Court of Appeal said in Vaughan,78 “the rule is not mere
bureaucracy [but] affords the best safeguard that has so far been devised against
the possibility of auto-suggestion.” In other words, it will obviate the problem of
determining whether a description subsequently included in a statement was based
in fact on an observation made at the time of identification rather than at the time
of the offence. It has been pointed out, with some justice, that “[t]he risk of this
happening, even quite unconsciously, may be heightened if the observation at the
time of the offence was for a short period by a frightened victim or a witness at
some distance, and if by contrast the later identification provides a better
opportunity to view and digest descriptive information about a person who is
perhaps static, closer, or in better lighting.” 79
76
Based on guidance provided by Mitchell J in Hickin [1996] Crim.L.R. 584, C.A. In her commentary
at p.586, Professor Birch endorsed the view that further attention needed to be given in the Code to
informal identification procedures.
77
Hickin [1996] Crim.L.R. 584.
78
(1997) The Independent 12 May, C.A. (judgment 30 April). See also Miah [2001] EWCA Crim 2281.
79
Bogan, op. cit., para 5.17, p.66.
47
VISUAL IDENTIFICATION PROCEDURES UNDER PACE CODE D
The failure to take a first description and to make a note of it before an
identification will normally constitute a breach of Code D80 and may result in the
conviction being quashed.81 However, the code is not breached if it is
impracticable to make a record owing to the urgency of the situation. Thus, in “a
volatile situation” in which “the primary need is to identify suspects before they
disperse”82 and where there may be insufficient officers available it may be
regarded as an “affront to common sense” 83 to require a description to have been
taken if this would have allowed the suspect to depart the scene. However, the
code does not specify a requirement for a written record and while the exigiencies
on the ground may preclude the jotting down of a written note, opportunities on
the air, so to speak, will routinely furnish a tape-recording of an initial description
given during an initial 999 call and hence an “incontrovertible record that could
carry the greatest weight.”84
(b) Keeping witnesses apart Paragraph D3.2(c) provides that
“where there is more than one witness, every effort should be made to
keep them separate and witnesses should be taken to see whether they can
identify a person independently.”
The precise mischief which the provision is designed to prevent warrants attention
in some detail because there may be different priorities and only limited resources.
If witnesses are allowed to mingle with the detained person in their sight it is easy
to see how a positive identification by one witness, in the hearing of the others,
may influence one or more of those others to concur in the identification, whether
expressed to the police without solicitation or simply noted mentally. In turn this
may lead to a tainted video identification.
However, there might be a problem of unconscious influence even where the
potential identification witnesses are kept together but do not have the suspect in
their view and witnesses are escorted to a place out of sight of the group in order to
see if an identification can be made. The main danger here is that the witnesses
might compare notes on the appearance of the culprit or culprits while they are
waiting. However, contamination might occur in a more complex way. Under
D3.2(d), considered next, once a positive street identification is made by a witness
any further informal identification procedures involving other witnesses are
prohibited. If, until a positive identification is made each witness in turn is taken to
80
Ryan v D.P.P. (2000) unreported, 10 October, C.A.
Vaughan (1997) The Independent 12 May, C.A. (judgment 30 April).
82
McMath [1997] Crim.L.R. 586, C.A.
83
See, eg, Crowe, unreported C.A. 6 March 1998, and El Hannachi [1998] Crim.L.R. 881, C.A.
84
Duggan (1998) unreported 16 June, C.A. It has been noted of the decision that the “admitted failure
to take a first description was compensated for by the description available from the 999 call [and so]
the breach caused no prejudice”: Bogan, op. cit., para 5.20, p.67. However, it is difficult to see why any
code breach should have been regarded as having occurred when the tape-recording was clearly a
record made by the police.
81
48
SUSPECT’S IDENTITY NOT KNOWN
the detained person and then returned to the group before the next is taken, that
could lead to the influence of suggestion. A report back by one witness to the
others that he believes he has successfully identified the person will hardly be
capable of influencing the later judgment at a video identification parade of those
who are waiting to be called upon and have not yet seen the detained person.
However, those who have already been taken and have failed to make an
identification might well be influenced by such a report back if they are later asked
to participate in a video identification. (Notwithstanding the failure to make a
street identification a witness may nevertheless be invited to participate in a formal
procedure if he subsequently expresses confidence in his ability to make an
identification or if there is a reasonable chance of the witness being able to do
so.85) Again, failure by one or more of a series of witnesses may, if reported back
to those yet to be called upon, may cause a witness to feel that the police ought not
to be “let down.”
The main objective, surely, is not to keep the witnesses separate from each
other throughout but, first, as far as possible to impose a regime of non-discussion,
and, second, to keep them collectively separate from the temporarily detained
person while each witness in turn is taken to that person. The latter the paragraph
requires in its insistence on the witnesses being taken to see the person
independently (suggesting that before they are so taken they will not have had the
person in their sight). Further, it will be important to isolate those who have
already participated from those who are yet to participate and, as far as possible,
from each other. This can be achieved with relative ease by swiftly taking their
name and address after participating and asking them to leave the vicinity as
quickly as possible. (Two or more witnesses who are companions could hardly be
prevented from meeting up afterwards and travelling home together but the
paragraph is little able to avoid that anyway.) It is true that comprehensive
implementation of the measure must, as has been suggested, depend on the
practicability of chaperoning witnesses separately throughout, in terms of the
number of witnesses and available police officers and vehicles and the urgency of
the need to identify suspects before they disperse. 86 If there are insufficient
numbers of officers to keep witnesses separate from each other before they
participate the spirit of the measure can probably be catered for adequately enough
first of all by a single officer group chaperoning those who are yet to participate.
The officer would have to be politely robust in insisting that they refrain from
discussing the description of an culprit or culprits and vigilant in noting down any
discussion if it did occur, as required by the code. 87 Second, those who who have
completed their involvement should be asked to leave the scene immediately.
85
D3.12.
Bogan, op. cit., para 5.25, p.68, citing at n.27, McMath [1997] Crim.L.R. 586, C.A.: “In an ideal
world, there would only be one potential witness in each car to preserve the integrity of each and every
identification.”
87
D3.2(e).
86
49
VISUAL IDENTIFICATION PROCEDURES UNDER PACE CODE D
(c) Street identification by one witness automatically renders known suspect
identification procedures applicable for other witnesses Of self-evident purpose
and effect is paragraph D3.2(d), which provides
“once there is sufficient information to justify the arrest of a particular
individual for suspected involvement in the offence, e.g. after a witness
makes a positive identification, the provisions [for cases in which the
suspect is known and available, ie in paragraph D3.4 onwards] shall apply
for any other witnesses in relation to that individual. 88
(d) Recording action taken New to the code and responding to a plea by Mitchell
J. in Hickin89 is D3.2(e) which provides
“[T]he officer or police [‘civilian support’ in the 2006 edition] staff
accompanying the witness must record, in their pocket book, the action
taken as soon as, and in as much detail, as possible. The record should
include: the date, time and place of the relevant occasion the witness
claims to have previously seen the suspect; where any identification was
made; how it was made and the conditions at the time (e.g., the distance
the witness was from the suspect, the weather and light); if the witness’s
attention was drawn to the suspect; the reason for this; and anything said
by the witness or the suspect about the identification or the conduct of the
procedure.”
The requirement to keep a written record of the events will not preclude the
propriety of an extra precaution of making an audio-recording of the manner and
form of any identification by the use of a hand-held cassette or digital recorder or a
mobile telephone. This would certainly be better than a written record, conveying
as it would in addition to a record of the exact words used, the inflection and tone
of the witness’s voice. Better still would be the use of a camcorder, which will
reveal any tell-tale gestures or facial expressions and the general demeanour of the
witness. Where several people have been stopped a global video-recording of the
possibly confused events might well prevent later dispute as to whether a person
arrested had actually been identified. The entry need not be made
contemporaneously and the code can be observed by making a written note from
an electronic record at a later time.
(e) The giving of cues on where to look While the need for police officers to
stand close to a potential suspect may be unavoidable, it will rarely if ever be
necessary to point directly at a particular person and to ask whether he or she is the
88
The provision was applied in Fuller (2000) unreported, 22 May, C.A. Until it was excised in the 2011
edition the sub-paragraph continued: “Subject to paragraphs 3.12 and 3.13, it is not necessary for the
witness who makes such a positive identification to take part in a further procedure.” See further,
chapter 3, section B.(2) (“Continuation of the strict approach under the code regime after 2002”).
89
[1996] Crim.L.R. 584, C.A.
50
SUSPECT’S IDENTITY NOT KNOWN
perpetrator. To do so would clearly be regarded as a leading question, as the Court
of Appeal observed in Brizey, although in that case the actual effect of the officer’s
words used was held merely to have widened the ambit of the complainant’s
attention.90 D3.2(b), which now adds an important qualification to the old rule
D2.17, provides
“[C]are must be taken not to direct the witness’s attention to any
individual unless, taking into account all the circumstances, this cannot be
avoided. However, this does not prevent a witness being asked to look
carefully at the people around at the time or to look towards a group or in
a particular direction, if this appears necessary to make sure that the
witness does not overlook a possible suspect simply because the witness
is looking in the opposite direction and also to enable the witness to make
comparisons between any suspect and others who are in the area . . .”91
The passage in emphasis nobly aspires to elevate a procedure which inevitably
comes close to being a confrontation to a quasi-identification parade. However, in
most cases in a deserted street late at night there will be few citizens about, either
walking past or stopping to watch, who may be used as foils. In most cases the
only people present who are not in police uniform are likely to be members of a
group who have been stopped and all or most of whom may be suspects. It is
plainly undesirable that they should be used as foils for each other, particularly
when the group may well have been stopped on the basis of a group description.
This is reminiscent of the practice of some of the states in the USA, in which it is
quite permissible for the police to put together a line-up in which all of the
suspects of a crime might be placed together and the witness is invited to select the
culprita procedure which has been referred to as similar to a multiple-choice
examination question with no wrong answer.92 The sanction in the code for
directing the witness’s attention to any individual where this is unavoidable
amounts to a sensible recognition of the fact that in general it is in practice
impossible to avoid drawing a witness’s attention to an individual who has been
stopped at the roadside by uniformed police on mobile patrol. The measure has
been criticised as being likely to be taken as a warrant for inviting the witness
expressly, it is assumedto concentrate on a particular person or group. 93 Strictly
speaking and for what it is worth, this seems to be precluded by the generalised,
almost deliberately vague, terms of the language which are to be used in inviting
the witness where to look. In reality, however, the coy hints sanctioned by the
90
(1994) unreported, 10 March, C.A. See Bogan, op. cit., para 5.23, p.67.
Emphasis supplied. Note for Guidance 3F warns that the admissibility and value of any street
identification may be compromised if, before a person is identified, the witness’s attention is
specifically drawn to that person.
92
See McKenzie, I., and Dunk, P., “Identification parades: psychological and practical realities,” in
Heaton-Armstrong, A., Shepherd, E., and Wolchover, D. (eds.), Analysing Witness Testimony, London:
Blackstone Press 1999, p.185.
93
Roberts and Clover, [2002] Crim.L.R., at p.888.
91
51
VISUAL IDENTIFICATION PROCEDURES UNDER PACE CODE D
passage may convey a stronger message than a blunt question as to whether the
person is the culprit. If a casual identification is going to be permitted where there
is no option but to place a potential suspect immediately next to a uniformed
officer it is farcical to prohibit an express invitation to participate in what would
amount to nothing short of a confrontation. Any officer advancing such an
argument might well feel justified in expecting to receive a sympathetic hearing
from a court.
(iii) A general solution to the problem of inherent suggestion
Where there are multiple witnesses to a street crime the prohibition on further
casual identification procedures as soon as one witness has made a positive
identification affords some relief from the risk of multiple error. However, this
does not eradicate the problem of auto-suggestion in the case of the witness
making the first identification. Moreover, in many instances there will only be one
witness to an incidentusually the complainant. While it may useful to hold a
second, formal, procedure later, since this may cause an honest witness to have
second thoughts when the suspect is viewed against an array of near lookalikes,
this hardly offers a guaranteed cure for hasty error. One solution which has been
suggested is to require officers standing with a potential suspect to be in plain
clothes, where possible, and that uniformed police and marked police vehicles
should not be in the immediate vicinity. 94 This supposed antidote ignores
operational constraints and, although in many instances plain clothes robbery
squad officers will be in attendance, the system should not have to depend on the
instant availability of plain clothes officers, or on uniformed officers switching
tunics and police headgear with anoraks or sports jackets and back-to-front
baseball caps conveniently kept in the boot as stage props, or on the hope that
witnesses will fail to notice size 12 police issue boots, or the fact that three
diminutive youths are flanked by large well-built men in their thirties dressed
slightly self-consciously in the latest designer sports casual wear.
What is a fundamentally very serious problem should be addressed by a vastly
more decorous solution than the frankly ridiculous measures necessitated by
staging a procedure in the street. Fortunately there is a far simpler and more
effective solution made available by modern technology, although not one which
may be to the taste of everyone associated with liberal opinion.
In the classic situation, if not in the majority of cases, where the police
arriving on the scene in answer to a call within a short time of the offence stop a
possible culprit or group of individuals on the street it will almost invariably be on
the basis of a matching of the physical description of the culprits with the persons
stopped, combined with an assessment of the relative times, location, direction of
travel of the temporary detainees, and degree to which the vicinity is devoid of
pedestrians. Although it has been held that that a person is not a “known suspect”
merely because he or she matches the description of an offender circulated to
94
Ibid.
52
SUSPECT’S IDENTITY NOT KNOWN
police officers95 a combination of the above factors may well furnish reasonable
grounds for suspicion justifying an arrest, even without a positive identification. 96
Stops are rarely random or even based on description alone but are usually driven
by a combination of circumstances which in themselves will almost certainly raise
reasonable grounds for suspicion justifying arrest. If there are reasonable grounds
for arrest, even without a positive identification, formal procedures for visual
identification are obligatory under the code where identification is disputed
(D3.12) and arrest (as distinct from reliance on voluntary attendance at the police
station) is likely to be the only practical means of securing the suspect’s cooperation in carrying out these procedures. Where the suspect has said nothing of
relevance prior to, or on arrest, D3.12 will arguably necessitate a prompt, formal
interview at the police station to determine if identification is likely to be in issue.
Where the suspect makes no comment in that short interview there will still be
scope for conducting a formal identification procedure if this is regarded as useful
(D3.12). It can hardly be denied that with its attendant distress and inconvenience,
an arrest would deprive an innocent, albeit suspected, person of the opportunity of
being cleared forthwith. This is the understandable attraction of street
identification and the police might well seek to demonstrate its efficacy by
pointing to the presumably significant numbers of people whom it clears. 97
On the other hand, arrest and formal procedure will afford a strong measure of
protection against a hasty identification which may well be mistaken. Since a
formal video identification procedure can now be arranged within a matter of
hours, and possibly in under one hour in urgent cases (the speed of the system is
described later) the suspect’s stay at the police station need not be protracted and
may well result in his elimination from the inquiry where he might otherwise be
implicated on the basis of a woefully imperfect procedure. Important also is the
fact that video identification permits articles of clothing to be removed from the
equation, which may otherwise feature disproportionately in a street identification.
95
Coulman v D.P.P. [1997] C.O.D. 91, D.C.
See eg Nunes [2001] EWCA Crim 2283; [2001] 10 Archbold News 1, C.A.
97
No statistics have been published on the frequency or efficacy of street identifications in England and
Wales. Estimates suggest that “showups,” as they are known in the United States, account for between
30 and 77 pc of all identification procedures in that country: see Stebley, N., Dysart, J., Fulero, S. And
Lindsay, R.C.L., “Eyewitness accuracy rates in police showup and lineup presentations: A metaanalystic comparison” (2003) 27 Law and Human Behaviour 523-540 In a sample of 224 identification
procedures recorded by a police officer 172 were showups and 52 were photospreads, with an
identification being made in 22 pc of the showups and 56 pc of the photospreads and in laboratory
studies the identification rate from showups was also lower than from photographic lineups: Gonzales,
R., Ellesworth, P. and Pembroke, M., “Response biases in lineups and showups” (1993) 64 Journal of
Personality and Social Psychology 525-537. By contrast, in another, archival, American study the
identification rates fom showups were higher than from photospreads, with 48 pc of witnesses making
an identification in 284 photographic lineups and 77 pc of witnesses making an identification in 258
showups: Behrman, B.W., and Davey, s.I. “Eyewitness identification in actual criminal cases: an
archival analysis” (2001) 25 Law and Human Behavious 475-491. With the exception of the study by
Gonzales et al the laboratory studies involved presentation of a photograph in the showup. See also
Valentine, “Forensic Facial Identification,” cited above in Chapter 1, n.10, para 17.41.
96
53
VISUAL IDENTIFICATION PROCEDURES UNDER PACE CODE D
Although many suspects might understandably prefer in the short run to take their
chances on instant elimination, the interests of justice surely require a more
objective, if paternalistic, regard for reliability. If the grounds for suspicion are
reasonable enough to justify a stop, then they will probably be enough to justify an
arrest, and, if so, there should be an arrest and not a street confrontation. Indeed,
the police should be discouraged from declining to arrest ostensibly on the basis of
insufficient grounds for suspicion and therefore for arrest, since this may furnish
an improper pretext for circumventing the protection of a formal procedure in
favour of holding an inherently unsatisfactory casual one. Advocates should be
prepared to counter any police claim that they lacked grounds for arrest and to seek
exclusion of visual identification evidence under section 78 of PACE if it appears
that grounds for arrest clearly existed, irrespective of the professed belief or
motivation of the officers.
(iv) Redundancy of argument allowing for street identification
of known suspects in cases of special urgency
In the days when live parades were the normal mode of formal identification
procedure one of the chief attractions of street identification was that despite all its
shortcomings it at least eliminated the factor of fading memory which was always
a conceivable concomitant of the delay invariably involved in the organising of
live parades, particularly where the number of suspects involved was large. With
the availability of a swift formal procedure offered by video identification this can
no longer enjoy any validity as an argument in support of street identification.
However, prior to the new regime the factor of delay confronted the courts with
the possibility of admitting an exception to the normal code requirement for a
formal procedure where the suspect was “known.” That possibility emerged in
Hickin and others98 in which, shortly after an attack on two people during the
course of a serious outbreak of public disorder, the police arrested a large group of
men and then brought two eyewitnesses to the group for the purposes of a street
identification, as a result of which seven of the group were identified. As the group
had been arrested the Court of Appeal proceeded on the assumption that they were
known suspects within the meaning of the code. However, declining to hold either
that the code requirement for formal parades applied in the particular case or that
the police were therefore in breach for conducting street identifications the court
stressed the undoubted impracticability of setting up fourteen identification
parades that night and the fact that the consequent lapse of time before parades
could be held was liable to cloud the clarity of recollection. The court also placed
reliance on the fact that recognition of clothing could be valuable as an aid to
identification. (In fact, as the men were under arrest it is difficult to see why their
clothing could not simply have been seized for later comparison with the
recollection of witnesses99). The decision seems implicitly to have recognised an
98
99
[1996] Crim.L.R. 584, C.A.
See Bogan, op. cit., para 3.25.
54
SUSPECT’S IDENTITY NOT KNOWN
exception to the obligation to hold formal procedures in cases where, because of
the large number of suspects, it is impracticable to arrange formal procedures
before memories are likely to have faded.100 However, the difficulty of arranging
live parades quickly was always a problem for the police, regardless of the number
of suspects.101 In any event it has been observed that the conundrum for the court
could have been avoided had it been argued by the prosecution that the arrested
men were too large a group to have been classed as known suspects, but this would
have meant conceding that the arrests were unlawful. 102
(v) Stops initiated by an eyewitness on tour
The problem of auto-suggestion arises too, although less acutely, where the
witness is taken on a tour of the vicinity and sees a person on foot who matches the
description of the culprit and who, at least viewed from a distance, he thinks he
can identify. Here again, the description, coupled with such elements as timing,
distance, direction of travel, and the fact that the streets of the locality are
desertedfactors which may in themselves induce the witness to believe that the
person is the culpritmay give rise to reasonable grounds for suspicion without a
positive identification. Questioning on prior movements may enhance the
suspicion. If there are sufficient grounds for arrest the formalities of VIPER
become obligatory and the witness should be kept at a safe distance and not given
a chance to make a close facial examination of the suspect before the latter is taken
away.
100
The acknowledgement of such an exception would not necessarily have been inconsistent with the
structure of Code D as it was then formulated, the definition of “known suspect” in the 1995 edition
being contained in an advisory Note for Guidance and not an imperative code provision: see ibid., para.
3.31. The actual decision in Hickin may be contrasted with that of other decisions in which the Court of
Appeal, while sympathising with the predicament of the police and expressing reservations as to
whether Code D could have been intended to restrict their investigative freedom, nevertheless held that
they were in breach in conducting a street identification: see, eg, Vaughan (1997) The Independent 12
May (judgment 30 April); Nunes [2001] EWCA Crim 2283; 10 Archbold News 1 (see above, at p.4 for
facts); Lennon (1999) 63 J.C.L. 459 (facts closely analogous to those in Nunes; breach described as
“flagrant and gross”).
101
The comparative delays in arranging live and video parades are reviewed below.
102
Bogan, op. cit., para 3.25, chapter 1, note 34.
55
Chapter 3
SUSPECT’S IDENTITY KNOWN
A. THE STATUTORY REQUIREMENT TO HOLD A PROPERLY
CONTROLLED IDENTIFICATION PROCEDURE
(1) Evolution to the present rule
Where the identity of the suspect is known there can be no question of the police
testing the ability of witnesses to identify the culprit by resorting to any of the
relatively casual methods for detecting the identity of the perpetrator necessitated
by the lack of information available to them. Instead, they will be required, where
appropriate under the code, to employ one of the properly controlled methods
prescribed for the purpose of testing a witness’s ability to identify the person in
question. The methods which may be used are those set out in in paragraphs D3.5
to D3.10, that is, video identification, identification parade, and group
identification.1 If none of these methods is practicable in the circumstances resort
may be had under the code to a confrontation, defined as when “the suspect is
directly confronted by the witness.” 2 The question of the selection of the
appropriate procedure is examined later but suffice it to say that under the scheme
of the current code the method will invariably be video identification, a method
described in detail later.
As already mentioned the traditional “live” identification parade was
originally introduced in order to avert the risk of miscarriage 3 by supplanting the
old and inherently flawed method of confrontation. It was only ever considered to
be a screening procedure for exposing uncertainty, not a method of validating
recognition scientifically.4 Moreover, it furnished a useful means by which a
defendant who was not picked out could seek to lessen the probative impact of a
previous street or other impromptu identification by photograph or likeness
construct, or incriminatory evidence of another kind. That it was regarded
primarily as a protective procedure was reflected in the scheme of the first edition
of Code D which, by requiring a parade in cases involving disputed identification
1
D3.4.
D3.23.
3
See Graham [1994] Crim. L.R. 414, C.A.
4
On the other hand, science is to some extent now deployed to support r0epresentations for the
improvement and refinement of the methods of controlled selection.
2
56
SUSPECT’S IDENTITY KNOWN
“if the suspect asks for one and it is practicable to hold one” 5 laid the onus for
initiating a parade on the suspect, albeit the suspect enjoyed entitlement to it as of
right. With the third edition of 1995 the question whether a parade ought to be held
shifted significantly from being a matter of the suspect’s right to that of a
prosecution duty: “Whenever a suspect disputes an identification, an identification
parade shall beheld if the suspect consents . . .”6 In an attempt to “resolve some of
the lacunae and uncertainties”7 which had emerged in relation to this brief
formulation it received an elaborate expansion under the present code. Set out
under the caption “Circumstances in which an identification procedure must be
held,” D3.12 provides:
“Whenever:
(i)
an eye witness has identified a suspect or purported to have
identified them prior to any identification procedure set out
in paragraphs 3.5 to 3.10 [video identification, identification
parade and group identification] having been held; or
(ii)
there is a witness available, who expresses an ability to
identify the suspect, or where there is a reasonable chance of
the witness being able to do so, and they have not been
given an opportunity to identify the suspect in any of the
procedures set out in paragraphs 3.5 to 3.10,
and the suspect disputes being the person the witness claims to have seen,
an identification procedure shall 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, for example . . . when it
is not disputed that the suspect is already well known to the witness who
claims to have recognized them when seeing them commit the crime.”
The reference to an identification procedure reflects the fact that the code allows
for the selection from one of three methods of identification, that is, video
identification, traditional live identification parade, or group identification,
according to an assessment of suitability and practicability in the circumstances,
D2.1 (“In a case which involves disputed identification evidence a parade must be held if the suspect
asks for one and it is practicable to hold one. A parade may also be held if the officer in charge of the
investigation considers that it would be useful.”) The provision was reproduced unchanged in the
second, 1991, edition.
6
D2.3. The requirement was subject to certain practical exemptions contained in D2.4, D.2.7 or D2.10.
The second limb of D2.1 of the first edition was perpetuated. The requirement for the suspect’s consent
was omitted in the fourth edition, an omission which it has been pointed out will have the effect of
making an identification procedure obligatory even though neither the police nor the suspect seeks one:
see Bogan, op. cit., para. 3.56..
7
Ibid., para. 3.35.
5
57
VISUAL IDENTIFICATION PROCEDURES UNDER PACE CODE D
albeit with a preference for video identification. As will be demonstrated later, in
practice there are likely to be few if any circumstances in which video
identification will not be utilised.
(2) Prior and prospective identification8
Read literally, the requirement to hold a parade (or to consider an appropriate
alternative) in cases involving disputed identification evidence (first, 1986, and
second, 1991, editions) or whenever the suspect disputed an identification (third,
1995, edition) might have seemed to be restricted to cases where there had been a
prior visual identification, whether in impromptu form in the street or one made,
for example, from a photograph album. However, suspects characteristically do
not find themselves under arrest with identification in issue only where an
impromptu or photographic identification has been made by an eyewitness. For
example, a suspect may very well be arrested for a robbery on the basis of a
combination of a matching description and evidence of being found in very recent
possession of articles stolen in the robbery or as a result of a fingerprint or DNA
trawl. Accordingly, the Court of Appeal had delivered dicta asserting that the
wording of D2.3 of the 1991 edition of Code D should be construed to include
cases where the witness had indicated that he would be able to identify the person
he claimed to have seen or where there was a reasonable chance that he would be
able to do so.9 No steps were taken to incorporate this formulation in the 1995
issue of Code D but the earlier judicial opinion favouring the widened construction
was cited with approval in at least two Court of Appeal decisions under the regime
of the third edition,10 although a differently constituted court made no reference to
it.11 The expanded formulation was not incorporated in the 2002 Consultation
Draft, the only change of wording being to require an identification procedure
“[w]henever a suspect disputes an identification made or purported to have been
made by a witness.”12 The proposed continuation of the narrow criteria attracted
criticism for exempting the police from the obligation to undertake a procedure
where although they had a witness who asserted an ability to identify the culprit
the witness had not actually been required to do so, a situation, it was conjectured,
which might occur where the police were seeking to rely on scientific evidence in
the belief that it was more reliable, or where they lacked confidence in the
witness’s ability to make an identification, to the benefit of the defence. 13
8
I am grateful to Daniel Stevenson, barrister, for some assistance in the preparation of this section.
Rutherford and Palmer (1994) 98 Cr.App.R. 191.
10
Nicholson [2000] Cr.App.R. 182, C.A.; Harris [2003] EWCA Crim 174.
11
Byron (1999) unreported, 12 February, C.A., where it was held that no parade was required although
the witness expressed an ability to recognise the offender. Had the court taken heed of Rutherford and
Palmer the decision would presumably have gone the other way.
12
D3.13, the precursor paragraph of D3.12 of the final version of 2003; proposed additions shown in
emphasis.
13
Roberts, A., and Clover, S., “Managerialism and Myopia: The Government’s Draft Consultation on
PACECode D,” [2002] Crim.L.R., 873, at p.879. In Popat [1998] 2 Cr.App.R. 208, at p.215, the
9
58
SUSPECT’S IDENTITY KNOWN
Fortunately the Home Office ultimately responded by including the wider
obligation.14
The term “suspect” in the prior and prospective conditional clauses of D3.12
is self-evidently a reference to the person the witness claims to have seen on the
relevant occasion, the phraseology used later in the paragraph, not the detainee
under investigation.15 The use of the same word in a single paragraph to describe
two different persons is undoubtedly clumsy. However, strictly speaking its use to
refer to the person professedly seen is more appropriate than “culprit” 16 since in
many cases where identification is in issue there will be no direct evidence that the
person claimed to have been seen by the witness was the perpetrator of the offence
in question. Rather, the prosecution case may be no more than that the person the
witness claims to have seen was observed at a certain location in circumstances
implicating him in suspicion. The position, then, is that it will be incumbent on the
police to undertake a controlled procedure (ie in effect a video parade) whether the
prior or prospective identification conditions apply, provided (in either case) that
“the suspect disputes being the person the witness claims to have seen.” The
converse opinion has, however, been expressed – surprisingly in view of its
distinguished source – that the proviso applies exclusively to condition (i), that is
to say where “an eye witness has identified a suspect or purported to have
identified them prior to any identification procedure . . . having been held.” This is
clearly an ill-considered interpretation. Self-evidently the “person the witness
claims to have seen” (that is, seen originally) does not mean the suspect the
witness purports to have identified later.17
The qualification to the prospective identification condition that the witness has
not been given an opportunity to identify the suspect in a formal identification
procedure (in effect video identification) is evidently intended to exempt the police
from the duty of arranging a further identification procedure where the witness has
already participated in one but has failed to make an identification and has then
subsequently expressed to the police an ability to make an identification, after all.
Where, as will invariably be the case, a witness has enjoyed the opportunity of
unhurriedly inspecting an array of images but has not made an identification there
second limb was taken to cater for the situation where “come the trial, a witness is not going to be
relied upon as an identifying witness.”
14
In terms which adopt those proposed at ibid.
15
The witness will therefore be expressing no ability to identify someone whom he may never have
seen before and will require no prophetic qualities, as Bogan sardonically points out: op.cit., para. 3.39,
n.49.
16
McKenzie and Dunk noted the fact that although psychologists had developed the practice of
referring to the person who actually committed the offence as the “culprit” and the person later arrested
and put up for identification as the “suspect,” the regulatory documents made no such distinction:
McKenzie, I., and Dunk, P., “Identification parades: psychological and practical realities,” in HeatonArmstrong, A., Shepherd, E., and Wolchover, D. (eds.), Analysing Witness Testimony, London:
Blackstone Press, 1999, pp 178-193, at p.179. See also Roberts and Clover, [2002] Crim.L.R. 873.
17
Editorial commentary in Criminal Law Week (CLW/15/31/2) on Shanmugaragah and Liberna [2015]
2 Cr.App.R. 215 (14), C.A. In the 2011 edition of Code D the words “eye witness” replaced the word
“witness” in condition (i) of D3.12 but that clearly did not justify the CLW editor’s interpretation.
59
VISUAL IDENTIFICATION PROCEDURES UNDER PACE CODE D
it may be arguable that the police should not be obliged to incur the time and
trouble of giving the witness a second bite at the cherry on the basis of what may
well be little more than whimsy. On the other hand, the paragraph appears to
exempt the police from the obligation to hold a parade where the witness has
participated in a parade, has failed to identification the suspect, insists that he can
still make an identification and a new suspect comes to the fore. However, the
paragraph clearly imposes no prohibition of a parade in these circumstances. It
may still be held if the officer in charge of the investigation considers it would be
useful.18
The latter saving may give rise to a potential conflict of interest between
suspects. A conundrum suggested to me at a workshop for Metropolitan Police
identification officers in December 2009 was the occasion for robust differences of
opinion. Four men are described as having participated in a robbery but the victim
states he would only be able to identify one of the culprits, for whom he gives a
description. Four men, all of broadly similar appearance and matching the
description, are arrested on suspicion of being the perpetrators and it is proposed to
hold video parades for each of them in turn. All four allow capture of their moving
images. The first suspect to be taken is positively identified. Would it be useful to
test that identification by holding further parades for the other suspects? The
luckless first suspect might have an interest in further parades being conducted
because of the possibility that the witness might resile from the original
identification on seeing the other suspects. On the other hand, he might privately
prefer there to be no further parades, thus facilitating his argument at trial that the
procedure was manifestly unfair because the witness was given no opportunity to
resile from the original identification when faced with the other suspects. For their
part they would be likely to prefer to avoid the risk of being identified and would
probably object, although the investigating officer would not be bound by the
objection. Yet carrying on would be unlikely to damage their positions unduly
even if the witness changes his mind and opts for the second, third or fourth
suspect. That suspect would be able to argue with some force that the effect of the
witness’s change of mind renders the two identifications cumulatively weak, if not
wholly valueless. From the point of view of the investigating officer it is in the
interests of justice to test the witness by holding further parades. It may be argued
that to stop after the first suspect has been positively identified is arbitrarily to cut
off an avenue of inquiry, because the police are duty bound to pursue both
inculpatory and exculpatory investigations.
Although the two components of the prospective condition, the expression of
an ability to identify, and a reasonable chance of the witness being able to do so,
are set out disjunctively there will be little option but to read them conjunctively.
An assessment as to the second component is clearly contingent on the first, since
without knowing whether the witness is confident of an ability to identify the
police would hardly have any means of assessing the chances of an identification
18
D3.13.
60
SUSPECT’S IDENTITY KNOWN
being made. Conversely, the expression of an ability must surely be subject to an
assessment of the probability of success. Where a witness could not see any facial
features because of the distance, initially stated that he might be able to identify
the person but subsequently conceded that he would not be able to do so, and later
gave evidence that the chances were 2 per cent, it was held in effect that the slight
chance avowed by the witness did not amount to a reasonable one requiring a
parade to have been conducted.19 Where there is a fundamental disparity between a
previous description and the physical appearance of the detainee being
investigated, the police might well conclude that there was no reasonable prospect
of a positive identification.20
(3) Suspect disputes being the person seen
by a witness on the material occasion
The duty which the police bear of arranging an identification procedure is
conditional on the suspect disputing that he was the person whom the witness
claims to have seen on the material occasion. The requirement is no longer limited
to cases where, there having already been an identification, the suspect disputes it,
a deficiency in the scheme of the 1991 edition (and continued in the 1995 edition)
which, as mentioned above,21 the Court of Appeal had sought to rectify by
construing the wording to include cases where, in short, an identification might
reasonably be anticipated.
To dispute that he is the person a witness claims to have seen on a material
occasion it is unnecessary for the suspect to know of the existence of such a
witness at the time he informs the police that he denies presence at a material place
and time. Indeed, it is not even necessary for the police to know of the existence of
such a witness at that stage. If the suspect is arrested for an offence on the strength
of fingerprint evidence and denies he was anywhere near the scene of the crime
and a witness is later traced who claims to have seen a man in the vicinity at the
time who may well be the perpetrator and from the description could conceivably
be the suspect and the witness states that he would recognise the man again, that
would be sufficient, other things being equal, to require an identification
procedure.22
For the police to be obliged to arrange an identification procedure they must
be made reasonably aware of the potential dispute about identification. This would
normally be conveyed to them by the suspect on arrest or in interview, by formal
notification from the suspect’s solicitor, in a defence statement or by way of notice
of alibi.23 However, it has been repeatedly held that no requirement arises if the
suspect makes no request for an identification procedure and gives a “no
19
Gayle [1999] 2 Cr.App.R. 130, C.A.
See also below, Chapter 4, pp.119-120.
21
See pp.58-59, above.
22
See Bogan, op. cit., para. 3.45.
23
Ibid., para. 3.47.
20
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VISUAL IDENTIFICATION PROCEDURES UNDER PACE CODE D
comment” interview,24 a proposition which the editor of Criminal Law Week
argues amounts to the equating of no comment with an admission and a reversal in
effect of the onus of proof.25
In other cases the question whether the suspect or defendant is disputing
identification may not always be easy to discern and the police may need to
consider with care all the information available to them in order to determine
whether in all the circumstances the suspect’s account amounts to a disputed
identification. In Lambert,26 where these principles were affirmed, the defendants
had either made no comment in interview, admitted to being present at the time of
the offence, or admitted limited participation and it was held that it had been
reasonable on the facts of the case 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.
The obligation to hold an identification parade under D3.12 is subject to no
time-limit on claiming mistaken identity and the relative ease, expedition and
convenience with which a video identification can be organised, as distinct from a
live parade, may in practice mean that, other things being equal, even a very late
assertion of dispute will oblige the police to arrange it.27 However, it has been
suggested that it would be inconceivable for the duty to arise where a defendant
24
Meredith and Cowan [2001] EWCA Crim 1415; McCartney and others [2001] EWCA Crim 2283;
[2003] 6 Archbold News 2; Lambert [2004] EWCA Crim 154; (2004) 68 J.C.L. 285, C.A., 13 January
(commentary by Andrew Roberts); Shanmugarajah and Liberna [2015] 2 Cr.App.R. 215 (14), C.A.
(trial judge held not wrong to agree with the assumption of the officer in the case that a “non comment”
interview did not engage the need for an identification procedure).
25
Commentary on ibid, CLW/15/31/2. All three complainants had thought that they would be able to
identify their attackers and in the editor’s opinion “[t]his was a case in which it was blindingly obvious
that an identification procedure should have been held. If the defendant had been picked out, the
prosecution would have come to court armed with one or more positive identifications, plus the images
from the CCTV, plus their other circumstantial evidence, instead of with a tenuous case (that resulted in
an initial jury disagreement); and if there had been no identification of the defendant, he would have
had the opportunity to make the legitimate point that witnesses, who had thought they would recognise
their attackers, had failed to pick him out in a properly conducted identification procedure. Thus the
police and the prosecution had adopted an approach that equated ‘no comment’ with admission, and
had thereby deprived themselves of potentially highly probative testimony and the defendant of a
safeguard for his liberty, and the Crown Court and the Court of Appeal had connived in this by denying
him even the benefit of the jury being told that there had been a breach of Code D, the provisions of
which existed for good reason, and that they should take this into account.” The comment is justly
made but a simple riposte might be that the police ought in their discretion to have held an
identification procedure under D3.13, as to which see below section D., at p.93, et seq.
26
[2004] EWCA Crim 154. See also Emiku [2003] EWCA Crim 2237, where the complainant alleged
that a man had tried to force her into his car and the defendant, whose vehicle had been identified,
denied the allegation in interview but admitted that two hours earlier he had stopped at the location of
the incident because of mechanical trouble and had spoken to a woman there. Held, that the judge had
been wrong to rule that the admission amounted to that of some form of association with the
complainant leaving to the jury only the question of what had happened. In essence the Appellant was
disputing identity and there should have been a parade.
27
A very lengthy lapse of time may mean that the witness feels no longer able to make an
identification.
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SUSPECT’S IDENTITY KNOWN
announced a defence of mistaken identity for the first time at trial. 28 This may be
compared with the opinion of the Court of Appeal that the question whether a
suspect disputes being the person the witness claims to have seen on the relevant
occasion, such as to require an identification procedure to be conducted under
D3.12, 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.29 It is not
clear if the court meant that the obligation under D3.12 ceased at the charging
stage but it may be observed that an investigation does not necessarily cease at that
point but may well continue up until trial, if not actually throughout the trial.)
It is not clear from the authorities how far the logical distinction between
disputing an allegation that the defendant was seen at such and such a date, time
and place and expressly putting the prosecution to proof on the issue impacts on
the application of D3.12. While it might be thought tactically imprudent for a
suspect in interview to go on record throwing out a challenge to the police “to
prove he was there,” would such a challenge in a solicitor’s letter or in the defence
statement, expressed, no doubt, in decorous terms, engage the provision? The issue
of identification, as any issue in the proceedings, will be a live one requiring the
police to prove it unless and until it is formally admitted. It will be in issue even if
the suspect makes no comment. However, the articulation of a “dispute,” that is
expressing the converse, or a challenge, involves something more.
Self-evidently, a positive identification of the suspect by one witness to an
offence will not relieve the police of the obligation under D3.12 to hold an
identification procedure for the benefit of a second eyewitness where the criteria
under the paragraph apply. If this were not required the police could with impunity
avert the risk of a second witness failing to make another positive identification.
That was the rationale for the rule as explained in Gojra and Dhir where in
summing-up the judge had merely suggested that an identification procedure
would have been desirable.30 The conviction was quashed on the grounds that this
may thereby have left the jury with the impression that the omission was of little
consequence, that the appellant was entitled to the imprimatur of the judge in
stressing the fact of a code breach in clear and unequivocal terms, that it was not
enough to rely on his counsel to make the point to the jury, and that the judge
should have directed the jury as to how the breach had arisen and that it was for
them to determine the possible effect of the breach. 31
28
See Bogan, op. cit., para. 3.47.
Lambert (2004) 68 J.C.L. 285.
30
[2011] Crim.L.R. 311, C.A.
31
The editor of Criminal Law Week (CLW/11/12/04, March 28, 2011) observes that the decision to
quash the conviction was surprising in view of the court’s opinion that the supporting evidence was
“abundant” and having regard to the court’s robust rejection of the ground of appeal based on the
judge’s failure to stop the case at the end of the prosecution case. He cautions that defence advocates
should beware of reading too much into the decision, which is highly likely to be treated as depending
on its own particular set of facts.
29
63
VISUAL IDENTIFICATION PROCEDURES UNDER PACE CODE D
(4) Adviser’s role where the suspect’s private instructions involve admitting
to presence but he wishes to request a video identification parade
The legal adviser in attendance on a client in the police station may face particular
difficulties where the suspect’s instructions are that he was indeed present at the
scene of the incident in question. For example, the suspect may be saying that he
was acting in self-defence or that he was an innocent bystander, or that while
guilty of a relatively minor offence, he did not participate in the main offence
alleged (for example that while guilty of assisting in robbery he did not aid and
abet the stabbing). On the other hand, he may actually be admitting he was guilty
of the main offence. Yet there may be no scientific evidence linking him to the
scene and he may be a stranger to the complainant or other identification witness
so no question of recognition of a familiar face arises. If without visual
identification there is little or no admissible evidence against him he would usually
be advised to make no comment and wait to see what the police will do. (At this
stage he would certainly not want to make any admission as to presence.) In such a
situation, without the suspect disputing he is the person seen by the witness, they
may decide to invite him to participate in a video identification parade anyway.
Although there is no obligation on the police under the main provision of D3.12 to
hold a parade where the suspect gives a “no comment” interview another part of
the paragraph makes provision for this sort of situation:
“Such a procedure may also be held if the officer in charge of the
investigation considers it would be useful.”
A further difficulty will arise where the allegation for example, is that of a multihanded attack, the suspect has been arrested near the scene shortly afterwards, he
is implicated by a co-suspect and the police are contending on the basis of
descriptions that the suspect was the principal assailant. For his part the suspect’s
case (as yet disclosed only to the adviser) may be that he played a lesser role or
was simply a curious bystander. Without evidence of identification there may be
no case against the suspect, or only a weak one, and he would not want in that
event to admit to presence as part of a “confession and avoidance.” Such an
admission might well provide a basis sufficient to proceed against him in the
absence of a positive identification.
The suspect can keep his own counsel and wait to see if the evidence “stacks
up.” Confident that their witness may well identify the suspect but faced with a no
comment interview the police may choose to set up video parades under the D3.12
subsidiary “useful purpose” rule. Conversely, they may be pessimistic about the
chances of the witness making a positive identification (despite an avowal of
confidence) and would prefer not to risk a failure by the witness to identify the
suspect because now or later it may weaken their hand and strengthen the
suspect’s. In these circumstances faced with the police declining to request his
participation in a video identification parade but confident that he would not be
64
SUSPECT’S IDENTITY KNOWN
picked out by the witness because he played only a subsidiary role and on that
account was only within the witness’s peripheral vision, he may want to adopt a
more proactive approach with the aim of securing his unconditional release
without charge, or at any rate to ensure that the case remains weak.
In these circumstances the suspect/client may with good reason be anxious to
chance his arm. Advising him not to take the risk may be overcautious and may
not be serving his best interests. How should his adviser proceed? It is most
important to establish through the disclosure of any descriptions or other evidence
whether the police are contending on the basis of any particular eyewitness that the
suspect played a specific significant role. If this is confirmed the suspect should
then tender a prepared statement in which he simply “disputes being the person the
witness claims to have seen” on the relevant occasion. This will accurately, if
narrowly, represent his case. Of course, the witness will no doubt also be claiming
to have seen other persons who were involved. As long as it is established from the
police that the person the witness was clearly referring to was someone who
performed a specific role and they are contending that that person was the suspect
(the person “the witness claims to have seen”) and not someone else present at the
time, he could not properly be criticised at trial for untruthfulness
if―disappointingly enough for him―he is then identified as that person. If he is
identified he can then give a further statement setting out his account.
(5) Possible applicability of Code D to the issue of participation
in the offence by a suspect whose presence is not disputed
Until the 2011 revision of Code D it was uncertain whether the police were
required to undertake a formal identification procedure where the defendant was
not disputing presence when an offence took place but denied any involvement or,
while admitting limited involvement, disputed that he was the person who
performed a particular role ascribed to that person by an eyewitness.
The potential ascription to a suspect can arise even before any identification
has been made, for example where following a group attack the suspect is arrested
on suspicion of being the knifeman on the basis of a description and the issue of
identification arises because he asserts he was an innocent bystander and that the
complainant must be confusing him with the assailant. Less innocently, he may be
admitting he was one of a number of men on the periphery encouraging, for
example, a “one-on-one” attack with fists and not conceiving that the assault
would end in a knife being drawn and used. There was certainly a strong case for
contending that the requirement to hold a formal procedure ought to apply in such
a case.32 It has been observed that cases decided under the third (1995) edition of
the code (D2.3) indicate that if the possibility of mistake exists, an issue of
In relation to the pre-2011 edition it was suggested that D3.12 should be interpreted as “the suspect
disputes being the person the witness claims to have seen doing what is alleged ”: see Bogan, op. cit.,
para. 3.48. With at least equal succinctness it might be suggested that the same result could have been
achieved by intepreting the phrase “the person” as “a specified person”.
32
65
VISUAL IDENTIFICATION PROCEDURES UNDER PACE CODE D
participation is generally to be regarded as synonymous with an issue of
identification and that there is no reason to think that the wording used in the pre2011 code altered the position.33
If, however, there was no realistic possibility of confusion between a suspect
who admitted being present and another person who could have been the
perpetrator the issue of identification would not seem to arise. 34 The question
whether the dispute was one of identification or participation might have depended
on the nature of the circumstances of the offence and the period over which it was
alleged to have taken place. In Chen and others35 the police maintained
surveillance on a flat in which it was believed victims of kidnapping were being
held against their will. The appellants were then arrested in the flat, where they
were found with the victims, who were subsequently shown a video recording of
everyone entering and leaving the flat, in order to assist them in making statements
identifying who exactly had participated in the kidnapping. Although with their
arrest the appellants had become “known suspects,” it was held, dismissing their
appeals against conviction, that there had been no requirement to undertake formal
Code D identification procedures since, in the view of the court, a dispute about
roles or about the commission of particular acts in the context of criminal activity
sustained up to the moment of arrest was not a dispute about identification but
rather one as to participation.
Prior to the 2011 revision, the discretion written into D3.12 allowing that an
identification procedure need not be undertaken where “it would serve no useful
purpose in proving or disproving whether the suspect was involved in committing
the offence” could on the face of it have permitted an identification procedure to
be employed for the purpose of ascertaining whether a person indisputably present
actually participated or did so in the way alleged by a witness if it were considered
useful. However, the Code states at D1.2 in the introduction that its procedures
33
Ibid., citing McMath [1997] Crim.L.R. 586, C.A; K v DPP [2003] EWHC 351 (Admin). See also
O’Leary and Lloyd-Evans 67 J.C.L. 115, C.A.; CLW/03/16/5; Muhidinz (2005) 70 J.C.L. 197, C.A.
(victim of a street robbery immediately flagged down a police car and pointed out the three robbers
whom the police pursued; the appellant, one of the two men arrested, claimed he was an innocent
passer-by who had himself witnessed the robbery but had panicked and himself started to flee the
scene; held, trial judge had been wrong to treat the issue as one of participation instead of identification;
the police should have conducted a formal identification procedure and the jury should have been
directed that the failure to do so deprived the appellant of the safeguard of having the street
identification tested and that they should take account of this in their assessment of the case as a whole;
for commentary see CLW/06/22/5, noting the silence of the judgment on whether the complainant had
kept the two arrested person continually in his sight and on the timing of the appellant´s claim that he
had been swept up in the events). See the difficult case of Hope, Limburn and Bleasdale [1994]
Crim.L.R. 118, C.A., cogently discussed in Bogan, op. cit., para. 3.51.
34
Slater [1995] 1 Cr.App.R. 584 (appeal against conviction for inflicting grievous bodily harm in a club
where there was no suggestion of anyone else being present who was anything like as large as the
appellant, who admitted being present; issue concerned the analagous identification issue of whether a
Turnbull direction was appropriate; held, there was no evidential basis for the possibility of mistake ).
35
[2001] 5 Archbold News 3, C.A.
66
SUSPECT’S IDENTITY KNOWN
“are designed to test the witness’s ability to identify the person they saw
on a previous occasion.”
Furthermore, a witness participating in a video identification procedure was (and
of course continues to be) required to be asked whether “the person they saw on an
earlier specified occasion is present.”36 It is arguable that these provisions
demonstrate that prior to 2011 the identification procedures in Code D were
directed exclusively towards the issue of presence at the scene of a crime. For the
code to have been applied to the question of participation, as distinct from
presence, the witness would have had to be asked whether the person who carried
out a particular act on an earlier specified occasion was among the images to be
shown, an exercise requiring some adaptation of the terms of the code. This was in
fact suggested by the appellants in Chen but rejected by the court as “unrealistic,”
although without explanation.37
The uncertainty of the code position has now been removed. The 2011
revision has made an insertion in D3.12 which requires an identification procedure
where there is dispute as regards the degree of participation, if any, in an incident
involving more than one culprit at which the suspect admits having been present.
Of those instances where a formal identification procedure would not required
because it would serve no useful purpose in proving or disproving whether the
suspect was involved in committing the offence the paragraph now gives as an
example of such a case the position–
“where the suspect admits being at the scene of the crime and gives an
account of what took place and the eye-witness does not see anything
which contradicts that.”
The corollary of this is there may be a useful purpose where there is a conflict for
example between the witness’s account of how many men were involved when he
was robbed in the street and the suspect’s account. Suppose the witness says there
were three men present, all of whom played an obvious part. On the other hand,
the suspect claims that he was one of four men who were present and that he was
one of two who played no active role and were innocent bystanders. In such
situations the code now deems it to be useful to conduct an identification
procedure to determine if the wutness can identify the defendant as one of the three
alleged robbers.
Paragraph 3 of Code D is confined in its existing purpose to being something
of a blunt instrument for testing the issue of whether a suspect was present. As a
means of testing the more subtle question of ascribing a particular role, if any, to a
36
Annex A.12.
For an exhaustive analysis of the theoretical basis for applying the code to resolve issues of
participation see Roberts, A., “Questions of ‘Who was there?’ and ‘Who did what?’: The Application of
Code D in Cases of Dispute as to Participation but not Presence” [2003] Crim.L.R. 709.
37
67
VISUAL IDENTIFICATION PROCEDURES UNDER PACE CODE D
suspect who admits presence. The problem still remains that ad hoc adaptation of
the code as presently formulated would lead to an undesirable lack of uniformity.
A suspect who wished to take a chance and challenge a provisional police
contention that he was major participant A as distinct from minor participant B
could arguably use the stratagem set out in section (4) above, the previous section.
B. INAPPLICABILITY OF THE MANDATORY RULE WHERE AN IDENTIFICATION
PROCEDURE WILL SERVE NO USEFUL PURPOSE
(1) Developments up to the changes of 2002
(i) The narrow construction of the utility principle
Paragraph D2.3 of the 1995 edition of Code D declared the mandatory rule
that whenever a suspect disputed an identification, an identification parade had to
be held if the suspect consented, unless certain relatively narrow exceptions
applied and also if the officer in charge of the investigation considered that it
would be useful. The code exceptions did not exempt the police from the duty to
undertake any formal identification procedure but permitted the recourse to one of
the alternative procedures catered for in the code, group identification, video
identification, or confrontation, as the case might be. 38
In spite of the mandatory terms of the requirement to hold a formal
identification procedure it was recognised that there would obviously be some
cases of disputed identity in which no useful purpose whatsoever would be served
by doing so. Obvious and uncontroversial examples were cases in which witnesses
asserted that they would be unable to make an identification or where it was
common ground that the witness and the suspect were well known to one another,
in which case an identification parade would prove nothing. However, the useful
purpose issue arose more controversially in cases in which there had been a prior
impromptu street identification and the question which fell to be debated was
whether a further formal procedure might add anything of value, since the witness
would be viewing an array of persons which plainly included one person whom the
witness had already purported to identify as the person seen on the relevant
occasion. In Popat,39 the Court of Appeal favoured the view that a formal
procedure would add nothing of value to an unequivocal prior identification.
Where a previous “street” identification had been “actual and complete,” having
been properly carried out under good conditions with no risk of any corruption of
its reliability in accordance with D2.17 of the 1995 edition governing identification
where the suspect was not known, the court held that there could be no question
but that the purpose of the code in ensuring the accuracy of any identification had
38
Thus, alternatives had to be considered if the unusual appearance of the suspect made it impracticable
to assemble sufficient people who resembled him, or where the witness was in fear, or where the
suspect was refusing to co-operate: see D2.4 to 2.16.
39
[1998] 2 Cr.App.R. 208, C.A., followed in El Hannachi and others [1998] 2 Cr.App.R. 226, C.A.,
and Bell [1998] Crim.L.R. 879, C.A.
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SUSPECT’S IDENTITY KNOWN
been fulfilled, that the requirements of the code had been complied with and that
there was no obligation thereafter to hold an identification parade for that witness
again to identify the same person. The possibility that the witness would make no
identification, select a volunteer, or even declare that the person seen was not one
of the array, was regarded in effect as so slight that a formal procedure would
serve no useful purpose. Although the court did not in terms say so, an
identification parade following an informal identification would in effect be a
“farce,” a characterisation originally coined by the Devlin Committee. 40
(ii) The strict approach
Overturning Popat, the House of Lords in Forbes unanimously upheld a strict
application of the mandatory approach, effectively holding that the test of
usefulness was not determined by an assumption that the witness would inevitably
make a second identification of the suspect. 41 Delivering the opinion of the
Appeals Committee, Lord Bingham of Cornhill reviewed in detail the development
of Code D through its then three editions, examined the authorities, and
concluded42 that it was not old-fashioned literalism but sound interpretation to read
the Code as meaning what it said. The Popat approach, he declared, subverted the
clear intention of the code, which was a practical document giving police officers
clear instructions. It would replace an apparently hard-edged mandatory obligation
by an obviously difficult judgmental decision. That decision would be entrusted to
a police officer whose primary concern would (perfectly properly) be to promote
the investigation and prosecution of crime rather than to protect the interests of the
suspect against mistaken identification. Such decisions would be bound to produce
challenges in the courts and resulting appeals. Save in circumstances which were
specified or exceptional suspects should not be denied their prima facie right to the
protection against the risk of a mistaken identification on the decision of a police
officer. In the opinion of the Committee, the Popat approach overlooked the
important fact that grave miscarriages of justice had in the past resulted from
identifications which were “fully satisfactory,” “actual and complete” and
“unequivocal” but proved to be wholly wrong.43 The decision therefore upheld the
oft declared principle that an identification procedure is as much for the benefit of
40
Report, para. 5.77. The description was used by the court in Anastasiou [1998] Crim.L.R. 67, C.A.
[2001] 1 A.C. 473; [2001] 1 Cr.App.R. 430. As Bogan points out (op. cit., at para. 3.54, n.71), this
“extraordinary jurisprudential saga” was not concluded before, first, the Court of Appeal in Forbes
[1999] 2 Cr.App.R. 501 rejected the approach of the Court of Appeal in Popat, and then another
constitution of the Court of Appeal in Popat (No 2) [2000] 1 Cr.App.R. 387 held that the attempt by the
Court of Appeal in Forbes to undermine the decision in Popat was “misguided and unfortunate” and
ought not to be followed.
42
At para. 20.
43
This declaration did not stop the Law Lords nonetheless coming to the somewhat puzzling conclusion
that on the facts of the case the street identification following what had been a comparatively fleeting
intervening encounter after the initial incident had been both “compelling and untainted.”
41
69
VISUAL IDENTIFICATION PROCEDURES UNDER PACE CODE D
protecting a suspect against mistaken identification as for the benefit of the
prosecution.44
(2) Continuation of the strict approach under the code regime after 2002
The inutility exception is expressly written into the code but the principle laid
down in Forbes, that a previous street identification, however, clear-cut, will not
disapply the mandatory rule, arguably remains intact. There is nothing in the
drafting of D3.12 which permits a wider, more prosecution slanted, application of
the no useful purpose exception than was allowed for in Forbes.45
An anomaly removed in 2011 Until D3(2)(d) was amended in 2011 it
purported to contain an exception to the general mandatory rule in the case of
known suspects which excused the first witness to make a street identification
from participating in a subsequent controlled procedure under D3.12. In its entirety
D3.2(d) decreed: “once there is sufficient evidence to justify the arrest of a
particular individual for suspected involvement in the offence, e.g. after a witness
makes a positive identification the provisions [requiring the formal controlled
identification procedures] set out from paragraph 3.4 onwards shall apply for any
other witnesses in relation to that individual. Subject to paragraphs 3.12 and 3.13,
it is not necessary for the witness who makes such a positive identification to take
part in a further procedure.” In short, the second sentence was saying that no useful
purpose would be served by inviting the witness who made the first identification
in the street from participating in a later formal procedure. As this clearly went
against the grain of the essential thrust of Forbes the anomaly was removed.
(3) The nature of useful purpose
(i) A rationale of utility in cases of prior street identification
The decision in Forbes was based on the assumption that even where there has
been an unequivocal street identification (or an identification on inspecting a
gallery of still photographs) there will always be a useful purpose in following up
with a controlled identification procedure (which will now always be video
identification). The opposing positionthat there will be no such useful
44
See Brown [1991] Crim.L.R. 368, C.A.; Wait [1998] Crim.L.R. 68, C.A.; McMath [1997] Crim.L.R.
586; O’Leary and Lloyd Evans 67 J.C.L. 115, C.A.; Nunes [2001] 10 Archbold News 1, C.A. For a
decision subsequent to Forbes see Harris [2003] EWCA Crim 174.
45
This is now accepted by the present author despite previously contending to the contrary in the course
of participating in a lively debate on the topic: see Wolchover D., and Heaton-Armstrong A., “Farewell
to Forbes,” [2003] 7 Archbold News 4; Bogan, P., “Forbes Alive and Well,” [2003] 8 Archbold News
5; reply by Wolchover and Heaton-Armstrong in ibid.; Robert English, letter, [2004] 1 Archbold News,
9. Prof. M. Zander QC in The Police and Criminal Evidence Act 1984, 4th ed., London: Sweet and
Maxwell 2003, at p.279 predicted that under the regime after 2002 a body of case law would be likely
to unfold on the circumstances covered by the phrase “no useful purpose.” It had also been observed
that “the extent of the discretion conferred in the [provision] is so ill-defined as to give rise to the
danger . . . that the police or prosecution will conclude that a procedure would serve no useful purpose
in circumstances where there is, in fact, a real risk of erroneous identification”: Roberts and Clover,
[2002] Crim.L.R., p.878.
70
SUSPECT’S IDENTITY KNOWN
purposeis predicated on the assumption that witnesses will inevitably identify
the person whom they have already identified, even if weeks or even months have
passed and so the prosecution case will be advanced no further. It can add nothing
to the identification already made, since in objective terms it confirms no more
than that the person picked out on the parade was the person who was arrested,
notwithstanding that the witness avows certainty in professing to identify the
culprit. Not only will it be a “farce,” to use the term coined by the Devlin
Committee (albeit slightly out of context), so the argument goes, but it might
actually be misleading and unfair in giving the impresssion of an identification of
the offender rather than merely that of the person arrested. Conversely, if there was
some delay before the controlled procedure was conducted and no identification
was made, or only a qualified one expressed, would this reflect anything beyond
the mere fact that the memory of witnesses often fade with the passage of time?
The opposing argument, that the holding of a controlled procedure will always
be useful because exposure to an array of similar looking persons might cause a
witness, whose memory of the appearance of the person previously identified was
imperfect, to fail to make a positive identification, to make a qualified one, to pick
one of the volunteers instead or even to state that the culprit is not among the
array. On balance there are distinct potential advantages for the defendant in a
formal procedure undertaken days or weeks after an identification made in the heat
of the moment, in spite of the risk that a mistaken identification may be reinforced.
Depending on the circumstances an unqualified failure to make an
identification, or even a qualified assertion of resemblance of the suspect to the
person seen, may warrant an exculpatory inference. If the witness claims to have
had a good view of the culprit and the original street identification was made under
good conditions and was expressed in terms of robust certainty, one might expect
that degree of certainty to be maintained at least over the course of the next few
days, or possibly weeks. Consequently the failure to make an identification under
the controlled conditions of a video procedure a mere matter of days later could be
taken to imply that the original identification may have been precipitate and the
result of auto-suggestion. It is significant that in Bell,46 a decision in keeping with
Popat, it was said that the possibility of non-identification was a “useful purpose.”
In other words, “the mere possibility that a witness might fail to pick out someone
whom he had purported to identify on a previous occasion ought always to
preclude the suggestion that holding an identification procedure in such
circumstances would serve no useful purpose in determining whether or not the
suspect committed the crime.”47
In contrast with an unexpressed failure to make an identification it is always
possible that the identification procedure may result in the witness conceding
doubts in terms, or even actually exonerating the suspect. Once the immediate
excitement of the incident has worn off a witness who has had the time, leisure and
46
47
[1998] 9 Archbold News 1, C.A.
Roberts and Clover, [2002] Crim.L.R., at p.878.
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VISUAL IDENTIFICATION PROCEDURES UNDER PACE CODE D
opportunity for contemplation, may have become less prone to assume that a
person not unlike the offender who was in the vicinity must indeed have been the
offender. When confronted with the images of a range of similar-looking persons
seeds of doubt may take root as to the accuracy of the original identification.
Coupled with the statutory caution warning “that the person they saw on a
specified earlier occasion may, or may not” appear in the images they are shown or
be present on the parade, as the case may be 48 it might also be sensible for the
identification officer to alert the witness to the danger of confusing the person
arrested with the offender, and to the danger of assuming too much from a
combination of resemblance and presence in the vicinity at the time. 49 Such
warnings assume that witnesses will tend to be honest enough with themselves to
ignore amour propre or the embarrassment of loss of face. However, although
such factors can never be discounted it is arguable that even without the suggested
add-on cautions the defendant will have little to lose and much to gain from a
formal procedure. The possibility of a change of mind (and not merely a failure to
identify) was expressly referred to in Harris as the reason why it would always be
useful from the defence perspective to conduct a controlled procedure, although
that was a case of purported recognition rather than a street identification. 50
(ii) General utility of controlled procedure following positive street
identification now empirically validated
The utility of a controlled procedure following a street identification is
supported by an important field research study conducted some years ago but only
published comparatively recently. 51 Of a sample of video identification parades
viewed by witnesses who had previously made a positive identification of the
suspect in a street identification, no more than 74% were positive, confirming the
48
Annex A.11 and Annex B.16.
Cf the caution recommended by the Technical Working Group for Eyewitness Evidence of the U.S.
Department of Justice Office of Justice Programmes, Eyewitness Evidence: A Guide for Law
Enforcement, National Institute of Justice, Washington D.C., 1999, cited by Roberts and Clover, [2003]
Crim.L.R., at p.887, as to which see infra.
50
[2003] EWCA Crim 174, per Potter L.J., at para. 33. “The judge appears to have found his view as to
the inutility of an identification parade upon the proposition that, if a parade was held and the appellant
identified, it would have carried the matter no further from the prosecution point of view, because it
would leave open the question whether the identification was of the appellant as the robber or was
merely a perpetuation of their ‘recognition’ of the appellant as a former fellow pupil. There is strength
in that view. However, from the defence point of view, it ignores the possibility of a change of mind
and/or a failure to identify the appellant at the identification parade, or which possible benefit the
appellant was, in the event, deprived.”
51
Valentine, T., Davis, J.P., Memon, A. and Roberts, A., “Live Showups and Their Influence on a
Subsquent Video Line-up,” (2012) 26 Applied Cognitive Psychology, 1-23; Davis, J.P., Valentine, T.,
Memon, A. and Roberts, A.J., “Identification on the Street: A field comparison of police street
identifications and video lineups in England,” (2014) 21 Psychology, Crime & Law, 9-17, DOI:
10.1080/ 1068316X.2014.915322; originally unveiled at the Nuffield Foundation workshop
“Eyewitness Identification Evidence”, January 30, 2009; cited in Wolchover, D. and HeatonArmstrong, A., “Street Identification,” (2014) 178 CJ&JW, No 10, 135-137, March 8. See also Roberts,
A., Davis, J., Valentine, T. and Memon, A. “Should we be concerned about street
identifications?” [2012] CrimL.R. 633-654.
49
72
SUSPECT’S IDENTITY KNOWN
original identification. This compares with the normal positive video ID rate of
approximately half. There was no relationship between delay and identification;
indeed parades in which no suspect was identified tended to be held sooner than
those in which the suspect was identified. The fact that as many as 26% of
witnesses who made a positive street identification of the suspect and went on to
participate in a video ID parade then failed to identify the suspect surely attests to
the undeniable general utility of a video parade follow-up.
(iii) Recognition of a person well-known to the witness
In Forbes Lord Bingham gave two examples of disputed identity cases in
which a formal procedure would “very probably be futile.”52 The first was the
eyewitness making plain that he would not be able to identify the culprit or person
seen on the relevant occasion (although possibly the clothing 53). It was
subsequently incorporated into what is now D3.12 as the converse of one of the
conditions for invoking the mandatory principle. The second example of a case in
which a procedure would be futile was that of the “pure recognition of someone
well known to the eyewitness.” This too was written into D3.12 but as the single
illustration, now, of a case in which no useful purpose would be served by a
controlled procedure. In a decision on the 2002 transitional provisions the Court of
Appeal could not see what the adjective “pure” (in Forbes) added to the word
“recognition” and suggested that it was for that reason that it had been omitted
from the revised code in the example given there, that is “where it is not in dispute
that the suspect is already well known to the witness.” 54 In fact, well before the
2002 transitional provisions it had been understood that what the Law Lords
referred to as a “pure” recognition case meant one in which there was no dispute
that the suspect was well-known to the witness.55 If there is no issue between the
52
At para. 21.
An expressed ability to recognise the clothing worn by the person seen on the relevant occasion
would plainly form no basis for holding an identification procedure: see Oscar [1991] Crim.L.R. 778;
Forbes, supra, and Haynes [2004] EWCA Crim 390.
54
Harris [2003] EWCA Crim 174, per Potter L.J., at para. 28, citing D2.15 of the 2002 transitional
provisions.
55
See, eg, Conway (1990) 91 Cr.App.R. 142, C.A., where the suspect in his interview denied any
acquaintance with two witnesses who were claiming to know him and it was held that an identification
parade should have been conducted to “test the crucial issue of whether or not the witnesses knew him.”
In Williamson [2002] EWCA Crim 1809, the C.A. doubted whether the fact of the witness having seen
a man casually on a number of occasions over the three years prior to the offence of arson but without
knowing his name and where her description of him did not entirely match the appellant, could properly
be characterised as rendering the man “well known” to her, so as to justify a finding that a parade
would be pointless. In a case at first instance cited by Robert English, letter, [2004] 1 Archbold News,
9, prosecuting counsel attempted unsuccessfully to argue that no useful purpose would have been
served by a parade because the suspect, having been identified in the street as the perpetrator, had for
that reason become well-known to the witness! Where a special constable had known a person 14 years
beforehand, but had only seen him once since 1990, her identification of him could not be said to be the
recognition of someone “well known” to her, and thus an identification procedure should have been
held under D3.12, which imposed a mandatory obligation on the police: McKenna v. DPP [2005] 5
Archbold News 2, QBD (Newman J.).
53
73
VISUAL IDENTIFICATION PROCEDURES UNDER PACE CODE D
prosecution and the defence that the defendant was well-known to the witness the
witness would simply be identifying the person who was well known to him, not
necessarily the person seen on the relevant occasion and it will be for that reason
that no useful purpose would be served by the procedure.
Conversely, where the suspect denies being well known to the witness a
formal procedure might be thought to be essential as a means of putting the issue
to the test. The facts in Harris56 are typical of a very commonly experienced sort
of case demonstrating the importance for the defence which the courts now attach
to a controlled procedure (although the approach of the trial judge was unusual).
The two victims of a three-handed robbery in a recreation ground claimed to have
been able to recognise clearly and under prime conditions one of the robbers, who
was wearing a parka jacket with the hood up, as a former pupil at their school,
although and they had not seen him for more than two years, when the appellant
would only have been 14. One of the victims also recognised his voice. The
complainants stated that they knew him by his first name and the headmaster was
called to say that the appellant had been the only pupil with that name at the school
during the whole of the material period that the witnesses and the appellant would
have been pupils there. From the outset the appellant, whose defence was alibi,
contended that since he did not know who the victims were he could not say
whether he might know them or not. The police opted to conduct no identification
parade and the appellant, despite having legal advice, never requested one. There
was no corroborative evidence.
The trial judge ruled that as the case was one of what he referred to as
“partial” recognition of a person who was well known to the witnesses (by which it
is assumed he meant the claim of familiarity was challenged) no useful purpose
would be served by an identification parade. He ruled nonetheless that the failure
to hold a parade constituted what he termed a technical breach. He then went on to
exercise his discretion to allow in the evidence of identification by the combination
of the appellant’s name and the headmaster’s evidence. In so ruling he took into
account the fact that the appellant, although legally represented at the time, had
never requested an identification parade and was entitled to cross-examine the
witnesses as to how well they knew him. Having allowed in the evidence he then
directed the jury effectively that there had been no code breach and that no useful
purpose would have been served by an identification parade because the case was
one of recognition.
The Court of Appeal took the view that having found the police to be in
breach of Code D (although, it must be said, for reasons which remained obscure)
he had not failed to exercise his proper discretion in allowing in the evidence, no
relevant consideration having been omitted nor anything obviously wrong with his
ruling. However, quashing the appellant’s conviction they held that he had
misdirected the jury in telling them that no useful purpose would have been served
by an identification parade, since the case was not one where it was not in dispute
56
Supra.
74
SUSPECT’S IDENTITY KNOWN
that the suspect was already well known to the witness. 57 The jury should have
been told that the appellant had been deprived of the benefit of the safeguard under
the code of putting the eyewitnesses’ identification to the test. Expressing concern
that the failure may have caused the mischief which the code was designed to
prevent, Potter L.J., giving the judgment of the court, said:
“The judge appears to have founded his view as to the inutility of an
identification parade upon the proposition that, if a parade was held and the
appellant identified, it would have carried the matter no further from the
prosecution point of view, because it would leave open the question whether
the identification was of the appellant as the robber or was merely a
perpetuation of the ‘recognition’ of the appellant as a former fellow pupil.
There is strength in that view. However, from the defence point of view, it
ignores the possibility of a change of mind and/or a failure to identify the
appellant at the identification parade, of which possible benefit the
appellant was, in the event, deprived. It does not seem to us that, in the
circumstances of this case where the ‘recognition’ was of a presumably
growing 14-year old, not seen for 2 years, such a possibility should be have
been discounted.”
Unconscious identity transference While there can be little quarrel with the
inutility of a video identification test where it is not disputed that the suspect is
well known to the witness the fact remains that a purported recognition in such a
case must leave the defendant extremely vulnerable to an assertion which it may
be almost impossible to test even by the most skillful cross-examination. However,
this is not to discount the possible impact of the conjectural phenomenon of
unconscious identity transference, described earlier in the context of images
televised or disseminated in the media.58 From the point of view of defendants it
would certainly be agreeable to be permitted to adduce evidence from
psychologists vouchsafing the “reality” of such a notion. However, in the courts of
England and Wales the frontiers of admissibility of expert evidence are unlikely to
be pushed back on this topic. For one thing, the phenomenon is conjectural rather
than empirically validated. For another, it adds little to the common experience of
mankind, the courts being assailed almost ad nauseam with defence reminders to
the jury on how we are all only too familiar with the experience of seeing someone
in the street whom we are convinced we recognise as a person we know reasonably
well but who turns out to be a stranger.
(iv) Recognition from a photograph
The inutility exception was upheld in Noonan,59 a case which is analagous to
undisputed recognition. In order to keep observation on the appellants police
Indeed Potter L.J., at para. 40, “observe[d] the irony that, whilst the judge’s ruling was given on the
basis that the case was one of recognition of someone well known to the witness, he also informed the
jury that the appellant was not someone whom either witness knew well.”
58
See above Chapter 2, p.41.
59
[2003] EWCA Crim 3869.
57
75
VISUAL IDENTIFICATION PROCEDURES UNDER PACE CODE D
officers had been provided with high quality photographs which indisputably
depicted them. The only issue was whether the officers had correctly recognised
the appellants from the photographs and a controlled identification procedure
would have been valueless. Indeed, it might be supposed that the officers were
better placed to make a recognition than in the usual sort of recognition case, as
they had been able to study the photographs in briefing sessions immediately
before taking up observation.
(v) Hot pursuit capture rendering formal procedure pointless
A further example of the type of case in which a formal procedure would be
irrelevant even though identity might well be disputed, is “hot pursuit,” that is
where an offender is seen in the act of committing the offence and is then pursued
by the witness (usually a police officer) and is captured. If the witness claims
never to have lost sight of the suspect clearly there can hardly be any question of
an issue of identification. However, even a short break in the continuity of sight
may have little consequence if on the alleged facts of the case the inference be
irresistible that the person seen after the interruption must have been the culprit
under pursuit beforehand. For example, the circumstances in which the alleged
culprit is seen to be running after the interruption may make it certain that he was
the person being chased before the break, by virtue of a combination of the factors
of appearance, direction of travel, isolation of the vicinity, timing, and the hour of
night. Again, the suspect may have been found hiding in such circumstances as
make it certain that he was the person being chased before the police lost briefly
sight of him. It is precisely in relation to such a case that it has been characterised
as a “farce” to hold an identification parade.60
C. THE EXCLUSIVE ROLE OF VIDEO IDENTIFICATION IN CODE D
(1) Distinction between known suspects who are available and unavailable
For the purposes of selecting the appropriate identification procedure to be
followed where the suspect is known, Code D distinguishes between suspects who
are available to participate in an identification procedure (section 3(b)) and those
who are not available (section 3(c)). It will become apparent that although the code
theoretically allows for the use of other, alternative, methods (identification
parade, group identification or confrontation) video identification is in practice the
only procedure which may properly be employed in either case, although,
necessarily, covert methods are likely to be necessary in the case of suspects who
are unavailable (a category which embraces unco-operative suspects).
See the Devlin report, at para. 4.69, discussing the impact of “hot pursuit” on identification, and
Anastasiou [1998] Crim.L.R. 67, C.A., a classic hot pursuit case where the police saw the offence, gave
chase, briefly lost sight of the fugitive and then found the defendant hiding on a rooftop. Additionally,
where the suspect is arrested after the police have sealed off the area, as in Nunes [2001] EWCA Crim
2283; [2001] 10 Archbold News 1, C.A., this may reinforce still further an inference that he is the
culprit who was pursued in the first instance. For the facts see above p.5. In that case it was held that a
street identification by the eyewitness officer was in breach of the code.
60
76
SUSPECT’S IDENTITY KNOWN
(i) Code definition of availability
Suspects are defined as being available if “they are immediately available or
will be within a reasonably short time and are willing to take an effective part in at
least one of” the three forms of procedure which may be used, that is, video
identification, identification parade, or group identification, and “which it is
practicable to arrange.”61
(ii) Availability within a reasonably short time
It has been rightly asserted that availability within a reasonably short time
means in a period beginning with the decision to hold the procedure, 62 a decision
which necessarily can only be made when both the suspect has become known and
a witness purports to be able to identify the person seen on the relevant occasion.
What is reasonable will depend on the particular circumstances, including
probably the extent to which delay might prejudice the investigation, as well as the
reasons for the suspect’s unavailability. 63
(iii) Willingness to take an effective part
A suspect who is unwilling to take an effective part in at least one of the three
permissible identification procedures which it is practicable to arrange is deemed
to be unavailable. Normal implementation of the three procedures self-evidently
requires the full co-operation of the suspect. Suspects are entitled to withhold their
consent to the procedure,64 and while they may profess to refuse their consent but
agree in practice to co-operate “under protest” it will be their declared and actual
refusal to co-operate which demonstrates their unwillingness to take an effective
part. (The police will presumably not need to test the suspect’s declared intent by
proceeding to find out if in the event he means it.) The most extreme
manifestation of a refusal to co-operate will be escape from custody, or failing to
surrender to police bail.
A suspect who professes to be willing to co-operate with a procedure which is
impracticable to arrange or is not suitable will not be considered available. 65
Applicability to juveniles D2.12 provides that if any procedure in the Code
requires a person’s consent the consent of a juvenile is only valid if their parent’s
or guardian’s consent is also obtained unless the juvenile is under 14, in which
case their parent’s or guardian’s consent is sufficient in it own right. The paragraph
provides that if the only obstacle to an identification procedure in section 3 is that
a juvenile’s parent or guardian refuses consent or reasonable efforts to obtain it
have failed, the identification officr may apply the provisions of paragraph 3.21
relating to unavailable suspects. Thus, that paragraph provides in effect that the
61
D3.4. The definition dates from the 1995 revision in which it appeared as Note for guidance 2D.
Bogan, op. cit., para. 4.11.
63
Ibid. A suspect whose arrest was imminent might well be regarded as available: Kitchen [1994]
Crim.L.R. 684, C.A., cited in ibid.
64
D3.17(iv). Consent may not be compelled by force or threats: Jones and Nelson, The Times 21 April,
1999, C.A.; Harley (2000) unreported, 22 February, C.A.
65
See Bogan, op. cit., para. 4.14.
62
77
VISUAL IDENTIFICATION PROCEDURES UNDER PACE CODE D
presumption of unavailability in the case of suspects who have evinced an
unwillingness to co-operate will apply to juveniles where the consent of their
parent or guardian is either refused or reasonable efforts to obtain such consent
have failed.66
(iv) Change of appearance amounting to unwillingness to take an effective part
The suspect will normally have been informed of any description given by the
witness of the person seen on the relevant occasion. Any alteration by the suspect
in his appearance between being offered an identification procedure and the
attempt to hold one may well be indicative of a desire to undermine the ability of
the witness to make an identification. It may even be indicative of a guilty
conscience, although that is not a necessary inference of any wilful
obstructiveness. (On the other hand, evidence that the suspect´s change of
appearance dated from well before his arrest and not long after the commission of
the offence, may well be incriminating if it was apparent that the suspect
appreciated that he was being sought by the police in connection with the
allegation.67)
Before a formal controlled identification procedure is arranged suspects must
normally be informed “that if they significantly alter their appearance between
being offered an identification procedure and any attempt to hold an identification
procedure, this may be given in evidence if the case comes to trial, and the
identification officer may then consider other forms of identification. 68 There is no
separate provision expressly authorising such admissibility at trial or such an
alternative course in these circumstances but they are implied.
A change in appearance may be so substantial that it will be virtually
guaranteed to defeat any attempt by a witness to make an identification using the
normal application of video identification procedure, that is using moving images
(and certainly not in any event by identification parade, group identification or
confrontation). Radical plastic surgery to the face is perhaps the most striking and
obvious example. This may well be successful in impeding the inquiry but if there
is other evidence sufficient to bring the case to trial the fact that the jury will
inevitably be informed of the change in appearance and will be able to observe it
with their own eyes may prove to be a sufficient disincentive to any suspect to
attempt such a ploy. On the other hand, less radical plastic surgery may be too
superficial to preclude at least the reasonable chance of the witness seeing through
66
The author is grateful to Mr R. Chandrapala, H.R.A., for pointing out that although placing the onus
of consent on the parent or guardian seems sensible enough in theory there may a number of potential
drawbacks in permitting responsibility for the decision to lie in effect on the shoulders of a lay adult in
the absence of qualified legal advice. D2.12 similarly provides that the consent of a mentally disordered
or otherwise mentally vulnerable person is only valid if given in the presence of an appropriate adult
and there will be similar concerns about the quality of any consent so tendered.
67
For an example of the prosecution successfully arguing at trial that for the defendant to be guilty he
must have changed his appearance, see Amin [2015] Crim.L.R. 631, cited above, Chapter 1, F(1), p.19.
Conviction quashed when police photographs were found showing he had not done so.
68
D3.17(ix).
78
SUSPECT’S IDENTITY KNOWN
it and recognising the suspect. Indeed, if the fact of the suspect having undergone
surgery is apparent to the witness this may of itself be taken by the witness as the
suggestion of an attempt to distract and thus strengthen the witness’s confidence
that the recognition is accurate.
Other changes may be less extreme or impermanent but nevertheless striking.
The suspect may have been able to achieve noticeable (if not miraculous) weight
loss over a short period in an attempt to avoid recognition. While both this and, for
example, the removal of a bushy beard and moustache may be a potential
distraction, ultimately neither ploy may be potentially decisive, since it is the shape
and colour of the eyes which is perhaps the one factor which most distinguishes
individuals from each other. However, without meaning to be facetious, theatrical
costumiers will always have in stock a supply of false beards and these can be used
for the suspect and any foils in order to recreate the suspect’s former appearance.
For video identification this would necessitate the recording of special footage (as
to which see below) or alternatively, if technically feasible, the recreated image of
a beard on each face can be superimposed electronically. Conversely, the growing
of a bushy beard69 may be seen as a facile attempt to distract, but the suspect will
always have the option of removing it when issued with the above mentioned
warning. A refusal to remove the recent beard growth will not necessarily amount
to, or be treated as, wilful refusal to participate; it may be met by the selection of
foils sporting beards. Again, a temporarily irreversible change in hair style or
length can easily be remedied by issuing hats to the suspect and the volunteers
whether for the purposes of a video identification or a live parade.
An attempt by a suspect to change his appearance may certainly indicate the
desire to avoid being identified. However, this will not necessarily be tantamount
to an “unwillingness to take an effective part” in one of the normal procedures for
available suspects, such as to permit resort to be had to an alternative method for
unavailable suspects. The attempt may be capable of remedy, with his cooperation, so as to permit one of the standard procedures for available suspects to
be used after all. In such a situation the change will not have been significant and
the suspect’s belated co-operation will mean that he must be treated as available. If
the change is reasonably capable of remedy in order to implement a normal
procedure, then it will not be “significant” and the identification officer ought to
give consideration to the remedy. It will amount to a failure to comply with the
code (a) to ignore the possibility of remedy, (b) not to offer the suspect an
opportunity of co-operating in the remedial measure, (c) taking the change of
appearance as proof without more of an unwillingness to take a willing part in the
procedure, (d) treating the suspect therefore as unavailable, and (e) resorting to an
inherently less satisfactory method which may be used when the suspect is
unavailable.
69
In George [2003] Crim L.R. 282, C.A., the accused grew a full beard in the thirteen months which
passed between his arrest and video identification procedures. For an account and commentary on the
decision see Bogan, op. cit., paras. 10.51-10.56.
79
VISUAL IDENTIFICATION PROCEDURES UNDER PACE CODE D
If after a full assessment of the possibility of remedy it is considered that the
the attempt was successful enough to preclude the use of a normal procedure, the
alteration will be significant enough70 to warrant resort to a special method
permissible for unavailable suspects. It will also constitute proof of the suspect’s
“unwillingness to take an effective part” in a normal procedure, thus rendering him
constructively not available within the meaning of the code definition of that term,
and for that reason allowing resort to one of the alternative methods for
unavailable suspects. As explained below, in the case of a significant (that is
irremediable) change of appearance (as in the example of radical plastic surgery)
the special method may be adopted of using a photograph of the suspect taken
before the change to make up an array of images in video format. 71 (A known
photograph of the suspect may have been obtained from official police records or
it may have been seized from the suspect’s personal effects, such as his bus pass.)
(2) Scheme of ranking of methods in the case of available suspects
(i) Notional choice with preference for video identification under the the statutory
scheme
Video identification, which is defined as one “when the witness is shown
moving images of a known suspect, together with similar images of others who
resemble the suspect,”72 first made its debût in the 1991 edition of Code D. Under
the 1995 edition of the code it ranked equally with the traditional live parade in the
scheme of selection but under the fourth (2003), fifth (2005), and now the sixth,
(2006) revisions, it is the first option which must be considered in a range of three
available methods. However, any notion of choice is purely theoretical. In reality,
it has effectively ousted the live parade and group identification (as well as
rendering confrontation entirely otiose) and, with the possible exception of group
identification in one particular circumstance, 73 is now the exclusive means of
testing eyewitness identification where the suspect is known, whether or not
“available.” In the following exposition of why this is the case reference will be
made to some of the features and merits of the video identification systems which
are described more fully later. It is because video identification is now the only
formal method for identifying known suspects which the police will be using that
it is unnecessary to consider those other methods in this treatise.
The other procedures do remain in the code as nominal alternatives but to all
intents and purposes they have been rendered otiose. To understand why this is so
it is necessary to examine the textual framework of the code. D3.14 provides
“If, because of paragraph [D]3.12 an identification procedure is to be
held, the suspect shall initially be offered a video identification unless
70
Within the meaning of D3.17(ix).
See Bogan, op. cit., para. 4.13.
72
D3.5 current edition.
73
See p.85, below.
71
80
SUSPECT’S IDENTITY KNOWN
(a) a video identification is not practicable; or
(b) an identification parade is both practicable and more suitable
than a video identification; or
(c) paragraph 3.16 applies [see below].
The identification officer and the officer in charge of the investigation
shall consult each other to determine which option is to be offered. An
identification parade may not be practicable because of factors relating to
the witnesses, such as their number, state of health, availability and
travelling requirements. A video identification would normally be more
suitable if it could be arranged and completed sooner than an
identification parade.”
It is appropriate to set out at this point paragraph D3.16, which provides
“A group identification may initially be offered if the officer in charge of
the investigation considers it is more suitable than a video identification
or an identification parade and the identification officers considers it
practicable to arrange.”
(ii) Practicability
The scheme of the paragraph is to give primary preference to video
identification. The first testin (a)of whether it may give way to an
identification parade is that of practicability. If it is not practicable in the particular
case an identification parade may be considered. For example, if a potential
identification witness was near death and there happened to be a disruption in
contact with, or in the operations of, the only accessible database large enough to
provide a sufficient number of suitable foils, that might well warrant resort to an
alternative. However, a conjunction of events ruling out the feasibility of video
identification seems almost inconceivable.
Even if video identification is a practical proposition an identification parade
may still be considered under (b). The first, self-evident, condition of such resort is
the practicability of an identification parade, which, the wording appears to
suggest, is practicability in terms of witness availability (not the suspect’s
convenience). It may be noted that the paragraph does not require a comparison of
relative practicability between the two methods. It is enough if both are
practicable.74 The point has rightly been made that with the increased use of video
and the infrequent use of parade volunteers, the pool of parade volunteers would
probably become too limited for the assembly of a viable parade. 75 On the other
74
Although the principle may no longer be directly relevant to the regime under 5th edition it has been
stated that the mere fact that insufficient volunteers are available on the day of an arranged parade does
not of itself render a parade on another day impracticable: Penny (1992) 94 Cr.AppR. 345; [1992]
Crim.L.R. C.A.
75
Bogan, op. cit., para. 4.21, n.32.
81
VISUAL IDENTIFICATION PROCEDURES UNDER PACE CODE D
hand, a large data base of images of volunteers presupposes the willingness of
many of those volunteers to stand on a live parade, if requested and available. If
practicability is measured in terms of efficiency video would be sure to come out
on top with its very large database of instantly available foils drawn from the
whole spectrum of racial and ethnic backgrounds and the facility of rapid retrieval.
However such a comparison is not required.
(iii) Suitability: video will invariably be more suitable
The next testin (b)of whether video identification may give way to an
identification parade is the question of comparative suitability. Given that both
methods may be practicable (though not necessarily equally practicable) the police
are required to utilise a video identification if it is more suitable than a live parade.
The primary test of suitability is set out in the paragraph. Video identification is
deemed to be more suitable, in the normal case, if it can be arranged and
completed sooner than a parade. It is this provision which now effectively makes
video identification the exclusive method to be used in virtually all conceivable
cases involving an available suspect.76 The main reason is that with the easy
availability of a comprehensive video library of faces and the comparative
simplicity of the arrangements for organising a video identification it will always
be possible to hold a session well ahead of a live parade. It is noteworthy that in
the Government’s White Paper Justice for All77 it was stated that the use of video
identification could frequently take place within one week (and often less) in
contrast to an average time for a parade of 10 weeks.78 The cancellation rate for
video was around 5 per cent compared with 52 per cent for parades. The move to
video identification reflected the view that the video library would do the job
better than the traditional parade.79
That the test of suitability in the paragraph, as between video and live parade,
is primarily one of comparative expedition is implicit in the use of the word
“normally” but that word would seem to permit other subsidiary tests of suitability,
exceptionally, to be considered.80 The factor of delay comes within the principal
test of suitability. Whether the reference to other tests is conditional on it being
feasible to arrange video and live parade with equal (or nearly equal) dispatch is
76
It will also be the only method for use in cases where the suspect is not available: see below.
Cm. 5563, July 2002, para. 3.14.
78
The figures for delay are broadly in line with those given on a variety of websites about VIPER
consulted during the preparation of this paper, to which reference is made later.
79
See eg Tinsley, Y., “Even better than the real thing? The case for reform of identification procedures”
[2001] 5 Journal of Ev. and Proof, pp.99-110. For a critique of the resource-led pressure for change see
Roberts, A., and Clover, S., “Managerialism and MyopiaThe Government’s Consultation Draft on
PACE Code D” [2002] Crim.L.R. 873).
80
Of now limited relevance is the observation that even if an identification parade is more suitable than
an alternative method significant delay caused by difficulties in assembling volunteers of similar
appearance can render a parade impracticable: Jamel [1993] CrimL.R. 52, CA. As the factor of delay is
now the principal test of suitability under D3.14, the potential delay caused by such difficulties will of
itself exclude from the equation other aspects of suitability favouring a parade.
77
82
SUSPECT’S IDENTITY KNOWN
not clear. It has been suggested81 that a live parade may be more suitable for
eliminating unusual features borne by the suspect. Thus, the suspect’s distinctive
hair can be hidden by issuing hats to all on the line-up and a facial scar can be
disguised by the time-honoured practice of placing a sticking plaster on the
suspect’s scar and similar plasters on the same position of the faces of all the
volunteers. The first stratagem can be achieved with video by the routine
procedure of recording footage for permanent saving to the database showing each
volunteer with and without a standard item of headgear. A similar effect can also
be achieved through the electronic technique of pixellation, as can that of
superimposing the image of a sticking plaster to the image of the suspect and to
each of the images selected for the video array. The argument that the live parade
may be more suitable in these circumstances is based on the assumption that
pixellation is “in its infancy.” 82 This is surely not the case, as can be attested by the
most remarkable exercises in computer generated graphics wizardry which have
been achieved for very many years now. It is understood that such disguises are
well within the capability of the available programmes used for video
identification, as they are within the skills of the operators. (Indeed, they are
available on many packages sold for use with home computers.) The standard
images used in video identification consist of a view of the head and shoulders and
the subject being shown full faced then turning to one side, then the other. If,
however, pixellation for the purpose of superimposing the image of a hat or a
sticking plaster did prove too difficult for such moving images, the decision can be
made, where profile views are not essential, to show only full faced views.
Equally, special footage might be taken using real sticking plaster. (The possible
use of ad hoc moving images for the purpose of showing full body appearance or
posture, gait, movement or gesture is discussed in the next paragraph.)
A more telling reason which has been canvassed for resorting to a live parade
is where it is thought that the sight of the suspect’s overall appearance is important
or that the witness particularly recalls a characteristic posture, gait, movement, or
gesture.83 Normally, the presentation of video identification images is confined to
the head and shoulders of the suspect and foils and so height and build (the latter
other than in a marginal way) will be out of account. However, this is not a
statutory requirement of the method, merely an operational reflection of what the
traditional live parade has essentially always been intended to test, that of the
ability to make a facial recognition. It is why foils for live parades were selected
81
See Bogan, op. cit., para. 4.21.
Ibid. For a recent decision involving the use of electronic masking see Marcus (Ruel) [2004] EWCA
Crim 3387; [2004] All ER (D) 351 (Nov); case number 0400198 D3, 23 November 2004. See further
below p.121.
83
Bogan, op. cit., para. 4.21. In George [2003] Crim. L.R. 282, C.A., a standard video format was
employed and witnesses reported that their ability to make a positive identification was impeded by not
seeing the whole body of the persons on the array who struck them as resembling the man observed on
the relevant occasion. See Bogan, op. cit., para. 10.52.
82
83
VISUAL IDENTIFICATION PROCEDURES UNDER PACE CODE D
by their resemblance to the s uspect in terms of height and buildto eliminate
irrelevant but potentially misleading differentials.
This potential shortcoming of standard format video identification can present a
particular problem for a suspect whose height is significantly at variance with that
described by the witness because in focusing on facial appearance to the exclusion
of the consideration of height it will necessarily preclude the possibility that the
witness might otherwise be less inclined to make a positive identification on the
grounds that the suspect’s height is noticeably and significantly different from that
given in the previous description. In their old-time format live parades may have
been of real assistance to the suspect in this respect because witnesses were invited
to “walk the line” close up. By contrast, in their final form live parades were of
relatively little assistance to the suspect on this score because the witness would
view the array from some distance away, behind a two-way mirror.
If it were thought so essential to test the ability of the witness to recognize
posture, gait or a particular movement of some part of the body in accordance with
a description given by the witness, that could assuredly be accomplished by
departing from the usual method of preparing images and requiring special footage
to be supplied. Thus, the suspect would be video-recorded standing or walking or
making the particular gesture requested by the witness, and the chosen volunteers,
whose images are held on the data base, could be contacted and asked to attend
their nearest identification suite, where, on instructions passed on from the
investigating officer, perhaps with the footage of the suspect as a convenient
model, they would be video-recorded standing, walking or making the same
requested gesture. They would not need to assemble on the same occasion (as in
the case of a parade) and, subject to their diligent attendance, the compilation
could be made up with reasonable speed, certainly more rapidly than it would take
to arrange a live parade. So the advantage of swifter arrangement would be
matched by an equal capacity to meet special requests.
The opening words of D3.14 in the fourth edition of 2003 had stated “. . . the
suspect shall initially be offered either a video identification or
identification unless . . .” The words “either” and “or identification” (with
“parade” missing) were included as a vestige of the temporary, 2002,
modifications to the third edition in which video identification and identification
parade were ranked equally in the hierarchy of selection. 84 It has been suggested
that since the preference for video identification is already stated in the hierarchy,
the preference for video identification if achievable sooner, as stated in the last
sentence of the paragraph, is an “incongruous hangover” from those
modifications.85 On the other hand, express inclusion of the “achievable sooner”
test is still essential for underscoring the justification of the rejection of any
request by the suspect for a live parade. By itself the provision in D3.11 that
84
The equal ranking formula was removed for the 2006 edition. The Home Office schedule of changes
is available on-line.
85
See Bogan, op. cit., para 4.20, n.31.
84
SUSPECT’S IDENTITY KNOWN
“[w]hen an identification procedure is required, in the interests of fairness to
suspects and witnesses, it must be held as soon as practicable” would have been
inadequate to the task of ensuring that expedition outweighed other considerations
of suitability.
Group identification option By contrast with video against live parade
determination under D3.14 the choice between video and group identification
under D3.16 is determined not by the competing speeds with which they can be
arranged but by suitability. Although the minimal requirements of group
identification allow it to be held swiftly this affords no advantage against video
identification under D3.16. In terms of comparison of persons of similar
appearance group identification will be far less suitable than video, as the presence
of persons similar in appearance to the suspect will be purely fortuitous. In terms
of allowing comparisons of posture, gait, movement or gesture to be taken into
account there is no prospect of this being achieved with a group identification
whereas video identification can be harnessed with relative ease to furnish full
body images of foils all of whom can be recorded walking or making a specially
requested body movement or gesture. There is no contest.86
(iv) Representations on behalf of suspect as to the choice of procedure
Paragraph D3.15 provides that suspects “who refuse the identification
procedure first offered shall be asked to state their reason for refusing and may get
advice from their solicitor and/or if present, their appropriate adult. The suspect,
solicitor and/or appropriate adult shall be allowed to make represdentations about
why another procedure should be used.” 87 After considering any reasons given,
and representations made, the identification officer must, if appropriate, arrange
for the suspect to be offered an alternative which the officer considers suitable and
practicable.88 The failure to offer an alternative where there is no impediment in
terms of practicability and suitability will be a breach of the code.89 However, with
the scheme of the code and the manifest advantages of video identification, as
against the other methods, being what they are, it seems unlikely that there is
anything which either the suspect, legal representative or appropriate adult, might
say which could be capable of obliging the identification officer to agree to an
alternative to video identification.
Bogan’s suggestion at ibid, paras. 4.21-4.22, that an identification parade or group identification may
be more suitable than video in cases where whole body appearance, posture, gait and movement are
important, with the clear implication that there will therefore be a significant albeit minority use for
them in the management of evidence gathering, is hardly supported by other correct statements in his
work. Thus, in the Preface he observes that “video identification is now used in all but the rarest cases.
The identification parade has become a relic of the past, likely only to be seen in old movies.” At para.
4.15 he states that “for some police forces the identification parade is a creature now almost extinct.”
87
The paragraph states that a record should be made of the reasons for for refusal and any
representations made.
88
If the officer decides it is not suitable and practicable to offer an alternative identification procedure,
the reasons for that decision must be recorded: D3.15.
89
Gasper [2002] EWCA Crim 1764, C.A.
86
85
VISUAL IDENTIFICATION PROCEDURES UNDER PACE CODE D
(v) Selecting the method: a nominal impasse
Reference should be made to the small curiosity of the requirement for the
Identification Officer and the officer in charge of the investigation to consult with
each other in order to determine, in effect, which method to select. It is not clear
what is to happen if they cannot agree or whose view is meant to prevail. The
potential impasse between identification and investigating officers will of course
never arise because the whole scheme of Code D is cleverly designed to oust the
alternatives.90
(3) Suspects who are not available (including non-coöperating suspects)
(i) The permissible use of covert action against the suspect
(a) General remarks In the previous section it was demonstrated why it is that, in
cases where the suspect is available, out of the three relevant procedural options
video-identification will in practice by the sole method of choice. Similarly, it can
be asserted that video identification will be the only proper method of
identification where the suspect is unavailable 91 (as defined in the code). This is
because the police may employ appropriate existing video-footage of the suspect
or still photographs presented in a video format to prepare a video identification
without the suspect’s consent or co-operation and, if necessary, they may also
employ covert recording of moving images or the use of a covertly captured still
picture presented in a video format. Covert recording or still-photography may be
necesssary where they do not have appropriate existing images or a photograph of
the suspect and where, if he were aware of an attempt to film or photograph him he
might try to conceal or avert his face. If the unco-operative suspect is accessible
enough to be video-recorded or photographed, or the police have a still photograph
of the suspect from which a video array of stills can be compiled, this will obviate
the need for a resort to the invariably less suitable and usually less convenient
method of group identification or the inherently unsatisfactory option of a
confrontation. A suspect who is available for these will conceivably always be
accessible to be filmed or photographed covertly. Where covert means are
necessarily employed the suspect has to be given the choice thereafter of cooperating in making more suitable images. If he chooses not to co-operate the
penalty is that he will simply lose the opportunity of being able to make
90
Professor Michael Zander Q.C. in his work The Police and Criminal Evidence Act, 1984, 4th ed.,
2003, para. 6-164, states, at p.279, that “[t]he decision as to which method to use is made by the officer
in charge of the case after consulting with the I.O. as to which ‘is the most suitable and practicable in
the particular case’.” This is incorrect and Professor Zander was citing the June 2002 consultation draft
plainly on the assumption, when he was preparing the 4th edition, that the provision would be adopted
for the draft to be laid. (He made the same error when describing D3.13 as, conversely, providing that
an identification procedure can also be held if the I.O. considers that it would be useful. In fact, the
2003/2004 version states that it may be held if the officer in charge of the investigation considers it
would be useful.)
91
Suspects being “available” are those immediately available or those who will be within a reasonably
short time and willing to take an effective part: D3.4.
86
SUSPECT’S IDENTITY KNOWN
representations over the images to be used and the selection of foils. The
significance of this is that the suspect who has not become a fugitive will be
unable to escape the procedure, one way or another. 92 In the case of fugitive
suspects video identification will also be feasible if the police have moving images
or still photographs of them.
(b) Video identification without the suspect’s co-operation The code structure
reveals how a suspect who chooses not to co-operate will be on a hiding to
nothing. Although a video identification is defined as one “when the witness is
shown moving images of a known suspect, together with similar images of others
who resemble the suspect,”93 D3.21 provides
“When a known suspect is not available or has ceased to be
available . . . the identification officer may make arrangements for a
video identification . . . If necessary the identification officer may
follow the video identification procedures but using still images. Any
suitable moving or still images may be used and these may be obtained
covertly if necessary.”94
(c) Moving images Clearly it will be impracticable to assimilate the neutral
background and appearance and movements of volunteers depicted in standard
archival comparator images with that of the covertly recorded footage. The best
means of furnishing suitably correspondent moving images would be to choose
persons of similar appearance from the database and then to contact the shortlisted
volunteers with a request to participate in the compilation of ad hoc footage. This
might depict them walking for example either in the same location as that in which
the images of the suspect were taken covertly and from the same camera position
or in a variety of locations in order to avoid drawing attention to the suspect. With
Hence the title of the author’s lecture “No Dodging Viper” (with apologies to the DaimlerChrysler
Corporation) given at 7 Bell Yard, London WC2 on 26 November 2003.
93
D3.5.
94
Original emphasis. Note for Guidance 3D states that D3.21 would apply when a known suspect
deliberately makes themself “unavailable” in order to delay or frustrate arrangements for obtaining
identification evidence and when a suspect refuses of fails to take part in a video identification or other
identification procedure. D3.21 enables any suitable images of the suspect, moving or still, which are
available or can be obtained, to be used in an identification procedure: ibid. In the Code revision which
came into force on 1 January 2006 the note was expanded to include such examples as images from
custody and other CCTV systems and from visually recorded interview records. In Folan [2003]
EWCA Crim 908, see below at p.94, the appearance of the defendant had changed significantly in the
20 years between his wife´s disappearance and the discovery of her remains during demolition work at
a hospital and the police showed his old passport photograph to witnesses who had been involved in
building works at the site during the period the wife had gone missing and who recognised the
defendant as having worked at the hospital at that time. It was held that in the unusual circumstances
application of the Code was inappropriate but that nevertheless the witnesses should have been shown a
series of photographs. The current edition of the Code would have been applicable on the facts but for
the rule that still photographs of the suspect and foils may only be shown in a video format where the
suspect is known but unavailable.
92
87
VISUAL IDENTIFICATION PROCEDURES UNDER PACE CODE D
relatively low cost high resolution cameras now widely available good facial shots
can easily be obtained from afar under conditions which are less than ideal.
Paragraph D3.22 provides that any covert activity should be strictly limited to that
necessary to test the ability of the witness to identify the suspect. This is
presumably intended to avoid the use of images which convey a negative
impression of the suspect, such as for example slyness, and certainly of footage of
the suspect engaged in criminal or other reprehensible conduct or behaviour. The
option of proceeding in the face of the suspect’s wilful non-coöperation does not
give the police carte blanche to use images which will draw attention to suspect.
Annex A.3 states
“The images used to conduct a video identification shall, as far as
possible, show the suspect and other people in the same positions or
carrying out the same sequence of movements. They shall also show the
suspect and other people under identical conditions unless the
identification officer reasonably believes
(a) because of the suspect’s failure or refusal to co-operate or other
reasons, it is not practicable for the conditions to be identical;
and
(b) any difference in the conditions would not direct a witness’s
attention to any individual image.”
Thus, if it is not possible to show images under identical conditions any
differences should not be so marked as to highlight the suspect.
(d) Still photography It is the last mentioned proviso which, in non-coöperation
cases, may impel the police to resort to the use of still photographs presented in a
sequential video format. The provision for using still images is clearly a reflection
of the fact that, notwithstanding the theoretical feasibility of shooting ad hoc
footage, as suggested above, it may be inconvenient, difficult or impracticable for
the police to match footage of the suspect shot covertly, specifically for the
purpose of the identification procedure, or which they otherwise happen to have in
their possession, with footage of foils shot in anything like the same
circumstances.95 The reasons why identical conditions are not practicable must be
recorded on forms provided for the purpose. 96
(e) Notification regarding consent and non-coöperation Reference has already
been made to D3.17 which provides that before a video identification, an
identification parade or group identification is arranged a number of specified
matters must be explained to the suspect. This does not apply if the need for preemptive covert action is considered necessary. 97 The information which D3.17
95
For consideration of the possible sources of still photographs see below, pp.90-91 and Chapter 4,
p.99.
96
Annex A.4.
97
Under D3.20, addressed below.
88
SUSPECT’S IDENTITY KNOWN
requires to be given to the suspect must also be recorded in a written notice to be
handed to the suspect which the suspect must be given a reasonable opportunity to
read.98 The suspect should then be asked to sign a second copy indicating
willingness to co-operate with the making of a video.99 Where the police decide to
employ a video identification D3.17 requires suspects to be told that a moving
image or photograph may be taken of them when they attend for any identification
procedure.100 They must also be told that they do not have to consent or cooperate101 but that if they do not consent to, and co-operate in, a video
identification, their refusal may be given in evidence in any subsequent trial. 102
That the right not to consent is of little intrinsic value will be obvious to suspects
because they must also be told that the police may proceed covertly without their
consent or make other arrangements to test whether a witness can identify them. 103
(f) Pre-emptive covert action Where the identification officer and the officer in
charge of the investigation suspect on reasonable grounds that if the suspect was
informed, in accordance with D3.17, that in the event of a refusal to co-operate, the
police might proceed covertly, and that on being informed the suspect would then
take steps to avoid being seen by a witness in any identification procedure, the
identification officer may arrange for images of the suspect suitable for use in a
video identification to be obtained before giving the information orally required by
D3.17 and the requisite written notice. 104 In other words, if it is suspected that a
potentially non-coöperating suspect would take steps to avoid being video-filmed
or photographed if made aware of the intention to do so the images are permitted
to be recorded covertly before the suspect is alerted to the fact that they are going
to be recorded or taken.105
(g) Futility of non-coöperation While it is true that the whole scheme is designed
to engineer a video identification procedure with or without the suspect’s cooperation it is hard to concur with the alarmist concerns of Roberts and Clover that
the scheme somehow involves an inherent lack of fairness to suspects.106 Coercive
it may be but the saving is that the suspect will have the final say because the code
provides that if images are obtained covertly following a decision to withhold the
notice, ultimately “the suspect may . . . co-operate in providing suitable new
98
D3.18.
Ibid.
100
D3.17(x).
101
D3.17(iv).
102
D3.17(v).
103
Ibid.
104
D3.20.
105
With some justice Roberts and Clover note the lack of any criteria in forming a reasonable belief that
the suspect will not co-operate and they note the irony of the apparent permission to withhold the notice
where the officers reasonably believe that the suspect will fail to co-operate as a consequence of
receiving it, as opposed to believing that the suspect is likely to be unco-operative in any event: [2003]
Crim.L.R., at p.881. Presumably, however, there would have to be some history or other extraneous
indicator of non-coöperation before the notice could properly be withheld.
106
Ibid., at pp. 881-882.
99
89
VISUAL IDENTIFICATION PROCEDURES UNDER PACE CODE D
images to be used instead.”107 The syntax of this is permissive and, notably, does
not state that the suspect must be given the opportunity to co-operate in providing
new images. However, D3.17, the paragraph which sets out the information which
must be given to suspects before a video identification, provides, under subparagraph (vi), that suspects must be informed whether, for the purposes of the
video identification procedure, images of them have previously been obtained and
if so, that they may co-operate in providing further, suitable images to be used
instead. The reference to images previously obtained is explicitly coupled with a
reference to D3.20, indicating that the images in question are those covert images
recorded without the initial D3.17 notice procedure. It is clear, therefore, that
before a video identification procedure can take place using covertly recorded
images made in the first instance by virtue of the D3.20 exception to the notice
requirements the suspect must be given the opportunity to co-operate in providing
more suitable images. There can be no obstacle in communicating this to reticent
suspects in custody. Again, where the suspect is on bail and is legally represented
this can be conveyed through the solicitor. Where this has been done, before
proceeding with a video identification procedure based on the previously or
covertly recorded images the police should wait to give the suspect an opportunity
to make himself available at least “within a reasonably short time.” 108 If the
suspect cannot be informed of the option because he fails to surrender on the due
date and has failed to keep in touch with his solicitor it may be observed that he
will little grounds for complaint if the police proceed with a video identification
without his co-operation. On the other hand, bearing in mind that the definition of
“available” includes “available within a reasonably short time” it is arguable that
the police should not act with indecent haste to conduct a video identification in
such a case, and might be advised to await a reasonable time either for the suspect
to surrender voluntarily or for any bench warrant to be executed. In the end even
those suspects who have initially tried to avoid co-operating enjoy the option of
securing a presentation most advantageous to their interests.
(ii) Sources of video images recorded previously or covertly
There will be a practical distinction between images of the suspect which the
police may already have in their possession and which may or may not have been
recorded with a view to a potential identification issue and footage shot covertly,
or non-consensually, for the specific purpose of holding a video identification
procedure. The police may routinely have recorded CCTV footage of the suspect
being brought into the custody suite of a police station and this might be available
subject to matching with suitable corresponding images of foils, although its use in
an identification procedure may amount to an infringement of the European
Convention on Human Rights if Code D is not materially complied with (see
below). Again, they may be able to use CCTV footage of the suspect in a public
107
D3.20.
See the definition of “available” in D3.4. Cf D3.11, providing that where an identification procedure
is required, in the interest of fairness to suspects and witnesses, it must be held as soon as practicable.
108
90
SUSPECT’S IDENTITY KNOWN
place as long as it does not depict any activity the adducing of which would
involve prejudice to him in the instant case. If they do not have satisfactory images
already in their possession when the question of non-coöperation arises, it may be
envisaged that they will need to film the suspect surreptitiously, for example,
walking or sitting in a public place while on bail or walking up to the police station
when answering to bail.
The case of Kennedy109 is an early examplenotably dating from just about the
time of the 1991 revision, when video identification was included for the first
timeof the use by the police of a covert video-recording in what amounted to a
video identification procedure. The appellant, who had refused an identification
parade and had thwarted police attempts to effect a confrontation, was videorecorded walking down a passageway in a police station handcuffed to a police
officer. The police then made similar video recordings of eight men of similar
appearance, similarly handcuffed and the recordings were shown to the witnesses.
The court said that this was the
“. . . fairest possible method which in the circumstances could have
been devised. It was certainly a great deal fairer than any sort of group
identification . . . [or] confrontation.”
The case illustrates how the use of video identification began as a necessary means
of thwarting attempts by suspects to avoid a live parade but became in the course
of a decade the standard method of first call.
If resort to the use of still images presented in a video format proves to be
necessary there are a number of potential sources of photographs of the suspect.
The police may already have in their possession a photograph of the suspect, for
example an official photograph contained in a criminal record file, one taken of the
suspect during surveillance prior to arrest, a photograph of the suspect found
among his personal effects and seized on his arrest for evidential use, or one taken
of the suspect while detained at the police station for the specific purpose of
investigating an offence.110 Again, stills may be made up from CCTV time lapse
recordings. Finally, while it may be as easy to take covert moving images as it is to
take still photographs it may be easier to match a covertly taken still with the stills
of foils from the database, than it will be to organise the ad hoc taking of moving
images of foils recruited from the database to match in context the covertly taken
moving images of the suspect. For this reason it is likely the police will usually
rely on stills in a video format where the suspect has refused to co-operate.
(iii) Human Rights implications
Roberts and Glover had predicted that any policy of routinely and
systematically recording and storing images of arrested persons in police station
109
(1992) unreported, C.A. 20 March, 90/02296/Y4.
The PACE Act, s.64(4)(a), specifically permits the use of a photograph of the suspect in the
investigation of an offence. An important source now available under the PROMAT system is the
enormous national database of images provided by the Custody Suite Imaging System: see below
Chapter 4, p.100.
110
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VISUAL IDENTIFICATION PROCEDURES UNDER PACE CODE D
custody suites might be susceptible to challenge under the right to privacy
guaranteed by Article 8 of the European Convention on Human Rights. 111 So it has
proved although it seems that in principle such images may be used provided there
is proper compliance with Code D. In Perry v United Kingdom112 the police
covertly used a security camera in a custody suite to record the images of the
applicant which were used in a compilation video tape, along with the images of
11 volunteers, to show to witnesses, and which was subsequently shown in open
court. The European Court on Human Rights held that this amounted to an
interference with the applicant’s right under Art. 8(1) of the convention to respect
for his private life, and that the interference was not justified under Art. 8(2)
because, while Code D provided a legal footing for the actions of the police, the
court at first instance had found three significant breaches in the light of which the
measures taken had not complied with domestic law. However, the trial judge had
found that the breaches did not adversely affect the fairness of the trial and the
application under Art. 6 had been found inadmissible. The decision has been
criticised on the basis that the domestic legal rules should have been considered in
their entirety, including the case law on when a breach should make evidence
inadmissible, which was as much a part of the domestic law as the provisions of
the code themselves.113 Covert filming in a public place can amount to an
infringement of the right to privacy even when there was no private element in the
events filmed.114
(iv) Group identification or confrontation now generally otiose
Where the suspect is unavailable or has ceased to be available the
identification officer must decide whether it is feasible to arrange a video
identification using covertly recorded images of the suspect. The Code provides
that if it is not practicable to do so the identification officer may make
arrangements for a group identification. 115 If this option is impracticable the officer
may arrange for a confrontation. 116 The power to make use of covertly shot images
and the relative ease with which such images may be taken have rendered such
alternative procedures effectively otiose. Any attempt to justify resorting to
confrontation on the grounds of the impracticability of taking suitable images
covertly might be difficult to sustain since it is assumed that a suspect who is
available for a confrontation will be available to be filmed or photographed.
[2003] Crim.L.R., at p.882. Article 8(1) of the Convention states: “Everyone has the right to respect
for his private and family life, his home and his correspondence.” Article 8(2) states: There shall be no
interference by a public authority with the exercise of this right except such as is in accordance with the
law and is necessary in a democratic society in the interests of national security, public safety or the
economic well-being of the country, for the prevention of disorder or crime, for the protection of health
or morals, or for the protection of the rights and freedoms of others.”
112
(2003) E.C.H.R. No. 63737/00, 17 July.
113
See commentary at [2003] 7 Archbold News 2.
114
See Loveridge et al. [2001] 2 Cr.App.R. 29, C.A.
115
D3.21.
116
D3.23.
111
92
SUSPECT’S IDENTITY KNOWN
Almost inevitably the ambience of the setting of the covertly recorded images
would be qualitatively different from that of the posed library images of the foils.
For example the suspect might be surreptitiously “shot” or “snapped” walking
towards the police station when answering his bail. However, the suspect would
always have the option thereafter of co-operating in the shooting of more suitable
images (see above). If the suspect still refused to co-operate, the police would then
be perfectly entitled to use what they had in continuing with the procedure 117 and
would have little basis for arguing that a confrontation was employed because it
was perceived to be fairer. If the police cannot secure co-operation for video
identification they would be unlikely to get it for a group identification and noncoöperating group identification would usually be much less convenient and
practicable to arrange than a video-identification employing covertly recorded
images. On the other hand, there might conceivably be circumstances in which it
might be more practicable to undertake a non-coöperating group identification
than to record footage of the suspect. Again, if the lines were temporarily down
and the matter were extremely urgent a group identification might be necessary as
the first instance choice. However, these highly exceptional circumstances do not
warrant consideration in this paper of the provisions of Annex C regulating group
identification.
D. DISCRETIONARY EMPLOYMENT OF CONTROLLED PROCEDURE WHERE
THE INVESTIGATING OFFICER CONSIDERS IT WILL BE USEFUL
Absent the conditions specified in D3.12 for a mandatory formal identification
D3.13 states:
“Such a procedure may also be held if the officer in charge of the
investigation considers it would be useful.”
The procedures referred to are those set out in paragraphs D3.5 to D3.10, that is
video identification, identification parade and group identification.
Limited nature of the discretion to invoke the paragraph Although the
wording of the paragraph is permissive, it is arguable that the officer’s discretion is
limited and that if a procedure were plainly to be of use in the circumstances it
would constitute a breach to eschew one for example merely because the suspect
had given a “no comment interview”118
It is to be noted119 that whereas D3.14 invokes the selection process when a
controlled identification procedure is mandatory under D3.12, it contains no
reference to any such selection process where under D3.13 an identification
117
Subject to the proviso in Annex A3(b) that any differences in the conditions would not direct a
witness’s attention to any individual image: see above Chapter 3, p.88 and p.117, below
118
Thus, in Shanmugarajah and Liberna [2015] 2 Cr.App.R. 215(14), C.A. it ought to have been
required under D3.13: see commentary on the decision in CLW/15/31/02, considered at n.25, p.62,
above.
119
See Bogan op. cit., para. 4.17
93
VISUAL IDENTIFICATION PROCEDURES UNDER PACE CODE D
procedure would be considered useful. It is has been argued that this should be
regarded as a drafting error and that the scheme of D3.14 should be applied in both
cases to avoid the anomalous situation in which the selection process could be
ignored if the procedure was not mandatory. In support of the contention that the
selection process should apply in both situations reliance is placed on the fact that
in the 2002 transitional modifications to the Code D both the mandatory and
discretionary procedure were combined into one paragraph, D2.14. 120 The
suggestion urged is that in removing the discretionary procedure to its own
paragraph the draftsman appears to have forgotten to widen the scope of the
selection scheme to both paragraphs.
While there is much force in this argument it may be suggested that D3.13
has been deliberately severed from D3.12 and is not subject to mandatory
observance of the detailed rules of compliance for a very good reason. It arguably
allows a measure of flexibility of practice under the Code in cases where it may be
impracticable to follow the mandatory terms of D3.14 but where a controlled
procedure following the spirit of the Code is nonetheless desirable if at all
possible. The facts and decision in Folan121 are illustrative. The appellant’s
appearance had changed significantly in the 20 years between his wife’s
disappearance and the discovery of her remains during demolition work at a
hospital. Accordingly, the police showed his old passport photograph to witnesses
who had been involved in building works at the site during the period that his wife
had gone missing and who recognised him as having worked at the hospital at that
time. It was held that in the unusual circumstances application of the Code was
inappropriate but that the witnesses should have been shown a series of
photographs.122
Applying the mandatory requirement of D3.14 for a video identification to
the facts in Folan it might be argued that the police ought to have employed still
photographs in a video parade format on the basis that D.3.21 permits stills to be
used as such in cases when a known suspect is unavailable. Arguably the suspect
as he appeared twenty years previously was no longer available. However, if that
argument is considered over-contrived and unpersuasive, a discretionary approach
would nevertheless seem to call for a video identification using stills on the basis
that since it may be useful and will certainly be more protective it ought therefore
to be used.
The investigators in Folan no doubt assumed that after twenty years the
suspect’s change of appearance was so dramatic that there was no reasonable
prospect that an identification would be made but considered that an attempt might
prove fruitful under D3.13. However, the results of a research study by Bruck and
others suggest that recognition across the passage of many years may not be
120
As they were in earlier versions, see notes 5 and 6, above.
[2003] EWCA Crim 908.
122
See above p.87.
121
94
SUSPECT’S IDENTITY KNOWN
anything like as forlorn a prospect as may be supposed. 123 Volunteers were asked
to attempt to match high-school graduation photographs with pictures of the same
people taken 25 years later, when they were in their early forties. Those unfamiliar
with any of the people depicted performed with an accuracy of 33 per cent
(compared with 10 per cent which would have been expected from guessing). Parti
cipants who had been class-mates were significantly more accurate, with 49 per
cent giving correct matches. It may be that accuracy would be less where the time
lapse was middle age to old age, when the change in appearance would probably
be greater.
Bruck, M., Cavanagh, P., and Ceci, S., “Fortysomething: Recognizing faces at one’s 25th reunion,”
Memory and Cognition, 1991, 19, pp.221-228, discussed in Bruce, V., and Young, A., In the Eye of the
Beholder, Oxford: Oxford University Press, 1998, pp.98-99, referring also to the case of identification
across the years of John Demjanjuk (see below, Chapter 4, B.(17), pp.128-129.
123
95
Chapter 4
VIDEO IDENTIFICATION PARADES
A. VIDEO IDENTIFICATION SYSTEMS IN OPERATION IN ENGLAND AND WALES
(1) VIPER1
(i) History and background
In about 1991, when PACE Code D first included video identification, the
West Yorkshire Police Video and Photographic Unit (subsequently renamed the
Imaging Unit) began to develop a tape library of volunteer individuals for use in
video ID parades. In about 1995 approval was given by the Command Team for an
online video identification scheme and the resulting VIPER system (standing for
Video Identification Parade by Electronic Recording) and its subsequent
developments have been in use since 1996. Although originally developed for use
within the West Yorkshire Police it soon became known to other forces in the
country and was made available for their use in serious crimes where there was no
realistic prospect of holding a traditional identity parade because of the suspect’s
unusual appearance. Initially, other forces would bring suspects to a VIPER suite
in West Yorkshire and more than half of the forces in England and Wales made
use of the facility in this way. The obvious development of this was that VIPER
suites were established outside West Yorkshire, thereby eliminating the need to
bring the suspect there. With the Code D revision of April 2002, giving priority to
video identification, VIPER was “fast tracked out to the ten forces participating in
the Street Crime Initiative, when the resource was identified as being particularly
useful for identifying street robbers.”2 The Home Secretary, Mr David Blunkett,
officially opened the national VIPER Bureau at Wakefield, West Yorkshire, on 14
March 2003, as of which date the system was being used by12 forces in addition to
West Yorkshire and there are plans to extend its use to all 34 forces in the United
Kingdom. Including the West Yorkshire catchment a total earlier this year of 58
police sites were equipped with imaging units and there were orders for 20 more.
In the 12 months to 25 February, 2003, the VIPER suite delivered 14,991 video ID
compilations. Wakefield is now a 24 hour facility.
1
This section is based on a digest of information gleaned from consulting several websites, not all of
which is consistent.
2
Quoted from release 072/2003 on the website gnn.gov.uk.
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VIDEO IDENTIFICATION PARADES
(ii) The system described
At a local VIPER suite the suspect’s head and shoulders are video-recorded in
front of a standardised neutral cloth background using a wall-mounted camera and
fixed standard lighting. At the start of the sequence the suspect looks straight
towards the camera and then slowly turns the head to show first the right full
profile and then the left full profile before again facing the camera. A clip of
“footage” lasting 30 seconds is recorded and, using simple commands and
prompts, it is transmitted via the central network to the VIPER bureau at
Wakefield, where its image quality is monitored. There, a trained editor searches
the database for the 15-second clip images of volunteers of similar appearance
using keyword descriptions based on age, ethnicity, hair type, build, etc. The editor
makes up a selection of still frames from the selected moving images and these
stills are then transmitted to the remote identification suite where at least eight are
chosen from the selection available and a decision is also made as to the order in
which the sequence is to be shown to the witness. 3 The unique reference number
for each still is noted (names and details are withheld) and these, together with the
sequence choice is sent back to Wakefield. The editor then makes up the requested
compilation using the moving image versions of the stills, editing down the
footage of the suspect to a 15 second clip to match the comparator clips. The
compilation is then downloaded at the remote VIPER suite where it can be burnt
on to a CD-ROM or DVD disk, to be shown to a witness on a laptop, or recorded
on to a DVD or VHS or other standard cassette tape for court use. The images are
shown to the witness in sequence. If a video recording is made of the identification
procedure a split-screen sound and vision composite can be prepared for court use
showing the images as they are seen and the witness inspecting them.
(iii) Database
Depending on which web site is relied upon the database holds image clips of
anything from 6,000 to 10,000 volunteers. Images are collated and quality-checked
to ensure that they meet stringent requirements of standardization.4
(iv) Staffing and training
The Wakefield VIPER Bureau employs 20 trained editors and 10 other staff.
As of May 2003 the centre had trained 700 operators for the forces involved in the
scheme, including some 51 training officers.
(v) Funding
The Wakefield Bureau was originally funded by £7.6 million from the Home
Office Police Support Unit and Street Crime Action Team, with a further £2.8
million committed for the year 2003/2004.
3
Bogan suggests that not all systems in use can accommodate selection from a larger number or
substitution to meet objections: op. cit., para 5.38, p.72, n.52, or sequence alteration: ibid., para. 5.39,
n.54. Whether or not this is correct the Wakefield Viper centre can certainly deal with any such
requests.
4
See Valentine, “Forensic facial identification,” cited above in Chapter 1, n.10, para 17.35. See also
text under (vi) below on the system’s technical specification.
97
VISUAL IDENTIFICATION PROCEDURES UNDER PACE CODE D
(vi) The system’s technical specification
The system in use at Wakefield is unique and has been described as Europe’s
largest video editing facility. It runs on an industry standard platform of X Series
Linux processors and intellstations supplied by Sagitta at a cost of about £1.3
million, which use the IBM General Parallel File System, enable the showing of
bandwidth necessary for large file sizes of at least 25MB each, and support 1.4TB
of storage space. DigiScope 601AX units with remote controls and two specially
modified Hamlet 302 WVR waveform monitors maintain signal quality and ensure
the essential probity and consistency of image quality across both library files and
the recordings of suspects. The Bureau utilises 34 Pinnacle Liquid silver NLE
editing machines of the kind long employed by the West Yorkshire Police Imaging
Unit for editing CCTV and video of raids and public disorder incidents. Liquid
silver is regarded as the perfect non-linear instrument for making such adjustments
as colour correction, essential in the task of eliminating differences between the
comparator clips and that of the suspect. Supporting MPEG-2, 1394/DV25 and
uncompressed video codes, the system offers the same quality as traditional MPEG
systems for 40 per cent less disk space.
(vii) Future of the system
The National Video Identification System is the next level up, exploring the
use of images of suspects from other sources such as CCTV to match against the
database of known offenders. It will be backed by the Police Information
Technology Organisation, which has a strategy of putting links into the system to
enable forces to share this information.
(2) PROMAT5
In competition with the employment of VIPER, a commercially developed system
known as PROMAT (standing for “profile matching”) has achieved adoption so
far by over thirty, that is more than half, of Britain’s police forces, pre-eminently
the Metropolitan Police. In fact, it has now overtaken VIPER as the principal
system in use, its success being a measure of its greater manageability and
flexibility, larger database, simpler software, and emphasis on speed. In contrast
with VIPER, PROMAT is a “stand-alone” system, the heart of which is a
customised, built-in, “clip-shared” database tailored to permit rapid search and
retrieval of the volunteer “distractor” images. At the time of writing, the shared
database of moving images stood at that of 17,000 volunteers and is continuing to
grow with volunteer images supplied by the participating police forces. It includes
an extensive range of individuals from ethnic groups. An important advantage of
5
The account of the PROMAT system given here was compiled from material published on
www.imagered.co.uk, the website of manufacturer Image Red Ltd, www.Videoid.co.uk, and
www.policereform.gov.uk, and information kindly furnished by Inspector R. Tucker, formerly officer
in command of the Metropolitan Police Identification Suite at Kilburn. Another system in use in some
forces is “Parade Manager”: see Bogan, op. cit., para. 5.36, p.71, n.47.
98
VIDEO IDENTIFICATION PARADES
the system is that the preparation of the array from capture of the suspect’s image
to completion of a video identification parade can be accomplished if necessary
within minutes. The system is compatible with a range of media, whether VCD,
VHS, SVHS, DVD, CD, or direct from the compiler’s PC monitor. A recent
innovation is the use of facial recognition algorithms (biometrics) for searching the
volunteer database. The system facilitates the creation of multiple parades with
random or selective positioning for multi-witness incidents. Provision is made for
on-line software maintenance and technical support, on-site hardware maintenance
and comprehensive training with advanced training for “mosaicing” the removal of
scars and other distinctive features. The stand-alone nature of the system allows
defence solicitors to make one visit to the identification suite, as the capture and
compilation is all carried out on one occasion. In the case of suspects who have
deliberately made themselves unavailable to participate in the preparation of a
moving image compilation the system allows the use of stills compiled, not from
the volunteer data base of moving images, but from a separate database of digital
still photographs taken of prisoners in custody suites under the Custody Suite
Imaging System. It has been observed that whereas conditions for recording video
images is standardized the specifications are less stringent than for VIPER. 6
PROMAT has obviated the need for the old identification suites, although
these continue to be used as an administrative convenience in run-of-the-mill
cases. For appropriate cases the Metropolitan Police have pioneered the use of
mobile identification units.7 Witnesses can thus view the compilations in a more
relaxed and less intimidating atmosphere (for example, at home, at work, or in
hospital) and the units have been been used extensively for conducting parades in
prison, avoiding the need to escort the suspect to an identification suite.
For superior integrity 9 compilations can be written to a single CD,with the
suspect located in each of the 9 positions on the different parades.This is a facility
which had not been available with VIPER and means that the selection of the
suspect can be made at the time of the witness viewing, a feature of the system
which ensures that none of the ID staff is aware of the suspect position until after
the viewing. It could usefully be combined with a procedure using two screens
placed back to back, one viewed by the witness, the other viewed by the operator,
suspect´s legal adviser any other persons present and showing only the number of
the participant appearing on the witness´s screen. 8 The use of CDs as a media can
have dramatic cost savings over DVDs or video tapes. The database can also carry
Valentine, “Forensic facial identification,” cited above in Chapter 1, n.10, para 17.35.
See “Mobile ID cuts cost of parades,” The Job, vol. 36, issue 899, March 7, 2003, reporting on the
five Metropolitan Mobile Identification Units led by Chief Inspector Jim Davis, believed then to be the
only fully mobile identification process in the country. Cf. Bogan, op. cit., at para. 4.15, n.26, who
acknowledged C.I. Davies as one of his sources of information, refers to the existence of a single
Metropolitan Police mobile unit which “in an urgent case can, in the same day, attend a police station in
which an arrested person has been detained, set up its equipment and video the suspect, complete a line
up from its database and confirm its content with the suspect or solicitor and then attend the witness’s
home or a hospital to conduct the procedure.”
8
See proposal discussed below at B.(27), pp.142-143.
6
7
99
VISUAL IDENTIFICATION PROCEDURES UNDER PACE CODE D
on managing line-ups if these are still required. A matrix of pictures can be printed
out to allow the suspect and solicitor to make a selection of volunteers, if required.
Fiscally, the advantage of the system is that no fees are payable for distractors or
for a managed bureau service. Until sufficient images became available under
PROMAT, the Metropolitan Police for a time resorted to the VIPER database for
an expanded selection, the combined system being known as PROMAT-VIPER.
(3) Approval or veto of images
Practice varies between different police forces across the country as to who makes
the initial selection of images and decides on the order in which they are to appear
in the compilation.9 In some forces (e.g. the progressive West Yorkshire Police)
suspects and their legal advisers make the selection and decide the sequence order,
with the advice and assistance of the identification officer. The Metropolitan
Police follow a more prescriptive approach. The initial selection is made by the
identification officer and, in accordance with the strict letter of Annex A.7 to Code
D (see below), the suspect and his or her legal representative are merely given an
opportunity, once the selection has been made, to inspect the complete set of
images and to voice any objection.
(4) Merits of video identification
Video identification offers a number of advantages over the traditional live
parade.10 The following are the most important of those which have been described
in academic studies and on various web sites on the subject.
(i) Economy
A single live parade cost up to £1,250. In contrast a VIPER download of about
10 video images can cost as little as £150. It will eliminate the need to pay
volunteers for each attendance at a live parade. It has been reported that police
forces expect to save £7 million in 2003 from the use of video identification as
against the use of traditional live parades. It is estimated that 1.2 million policing
hours will be saved.
(ii) Convenience11
It is an easier procedure than the live parade to arrange and conduct, will
reduce the burden of marshalling where there are many witnesses, which might
require the police to muster and organise the witnesses and perhaps a great many
volunteers on a given day, will excuse the need for witnesses to travel long
distances and will spare witnesses who are in poor health from the need to attend a
live parade.12
9
I am grateful to Mr. Peter Burton, Head of Imaging Unit with the West Yorkshire Police Scientific
Support Department, who in a personal communication helpfully furnished information about regional
differences in practice.
10
See Tinsley, Y., “Even better than the real thing? The case for reform of identification procedures”
[2001] 5 Journal of Ev. and Proof, pp.99, at n.26.
11
See Roberts and Clover, [2002] Crim.L.R., at p.884.
12
See ibid.
100
VIDEO IDENTIFICATION PARADES
(iii) Speed
On average live parades took anything between 6 and 10 weeks before they
could be held. By comparison the whole process of video identification can take
less than 3 hours. Indeed a service level agreement requires preparation and
delivery within 2 hours. Urgent cases can be reduced to 1 hour and the fastest
recorded took a mere 15 minutes. This degree of speed means that the procedure
can be conducted while a witness’s memory is fresh, an important consideration
given empirical evidence that a witness’s ability to make an accurate identification
diminishes as the interval between the original sighting and the identification
procedure lengthens.13 The failure to make an identification after such an early
opportunity to participate in an identification procedure, or a tentative or qualified
identification, may well be of considerable value to a defence case of mistaken
identification.14 The facility of speed will also allow a procedure to be conducted
before any decision is made about granting or withholding bail, a consideration
which may be relevant on the issue, referred to earlier, as to whether the police
should eschew street identifications in favour of arrest.
(iv) Elimination of delay through cancellations
Reference has already been made to the fact that in the Government’s White
Paper Justice for All it was stated that the cancellation rate for video was around 5
per cent compared with 52 per cent for live parades. 15 Cancellations were largely
the result of the failure of a bailed suspect or of the witness to attend or a lack of
suitable volunteers on the appointed day.
(v) Extensive range of available comparator images
For the purposes of conducting a live parade finding a sufficient number of
volunteers, who in the words of the long established rule, “as far as possible
resemble the suspect in age, height, general appearance and position in life,”16 was
always problematic.17 In contrast, the instant availability of a very extensive library
of images facilitates refinement of the selection process to the point at which the
13
For a review of the relevant research see Cutler, B. and Penrod, S., Mistaken Identification: The
Eyewitness, Psychology and the Law, Cambridge: Cambridge University Press 1995, pp.105-106.
14
See Roberts and Clover, [2002] Crim.L.R., at p.884. See also George [2002] The Times, August 30,
C.A. (sanctioning examination of the degree to which a qualified identification could be properly
attributed by the Crown to delay).
15
Cm. 5563, July 2002, para. 3.14. The 50 per cent cancellation figure was first identified in a survey
by Slater, A., “Saving money on ID parades,” (1995) 11 Policing, pp.203-231. In an analysis of 1083
parades in West Yorkshire between 1997 and 1999, Pike and others found that only 5.2 per cent of the
403 VIPER parades were cancelled compared to 46.4 per cent of the 680 live parades: Pike, G.E.,
Kemp, R., Brace, N., Allen, J. and Rowlands, G., “The effectiveness of video identification parades,”
(2000) 8 Proceedings of the British Psychological Society, 8(1), p.44.
16
The requirement goes back at least as far as the Consolidated Home Office Circular to police issued
on January 1, 1925, the extract from which on conducting identification parades is set out at Appendix
6 to the Report of the Royal Commission on Police Powers and Procedure, Cmd. 3297, 1929.
17
In Slater’s 1995 survey 50 per cent of witnesses thought that less than half of the parade participants
resembled each other: “Saving money on ID parades,” (1995) 11 Policing, pp.203-231.
101
VISUAL IDENTIFICATION PROCEDURES UNDER PACE CODE D
foils are as near to being clones of the suspect as it is possible to achieve in
humanity.
(vi) Absence of extraneous influences caused by inappropriate volunteer
demeanour
With live parades it has long been recognised that the behaviour of the
volunteers may consciously or unconsciously serve as a cue in drawing the
attention of the witness to the suspect.18 A graphic instance of such a factor
occurred in the notorious case of Major R.O. Sheppard, who in June 1925 was the
victim of an allegation of theft based on mistaken identification. 19 Police officers
present at the parade all maintained that the witness in question picked out Major
Sheppard without hesitation or encouragement but at the later tribunal of inquiry
into the case the witness himself said that he had not been sure who the man was
and it was only through the “hypnotic influence of the police and the volunteers,
all of whom were looking towards” Major Sheppard, that he eventually touched
him.20 With a video array this of course will not be an issue.
(vii) Elimination of unusual features
The suspect may bear an unusual and distinctive facial feature, such as
scarring, a birth mark, an area of skin discolouration or other blemish, a deformity
or injury, the absence of eyebrows through hair loss, hair of an unusual syle or
colour, or a tattoo. While it may not be difficult to find volunteers who in other
respects resemble the suspect it will usually be imposible to find those who share
the particular feature as well. It will obviously be essential to eliminate the feature
from the equation in the interests of achieving a viable degree of resemblance so as
to ensure fairness. It has long been the practice with live parades to eliminate the
feature, where possible, by placing a sticking plaster over the mark on the
suspect’s face and plasters in same position on the faces of all the volunteers. In
the case of unsual hair, this may be achieved by having everyone on the parade
wear an item of headgear to disguise the distinctiveness of the suspect. Video
The Home Office Consolidated Circular of January 1, 1925, supra, cautioned against “the witnesses’
attention being directed to the suspected person in particular instead of indifferently to all the persons
paraded.” Curiously, no such enjoinder is contained in the 2003 code in relation to live parades.
Perhaps it is so obvious that it never occurred to the draftsman to include one. In the Report of the
Royal Commission on Police Powers and Procedure, para. 129, it was acknowledged that the provision
in the rules which allowed the accused to change position after each witness, though intended to
prevent unfairness, actually made it impossible to conceal his identity from the others on the parade.
(The suggested antidote was to require all on the parade to change places or to require them to walk
about, the latter proposal of which had the added advantage of affording the witnesses an opportunity to
observe the gait of the suspect and volunteers.)
19
See Report of the Tribunal of Inquiry on the Arrest of Major R. O. Sheppard, D.S.O., R.A.O.C. (ch.
The Right Hon. J.F.P. Rawlinson, K.C.) Cmd. 2497, 1925. For a lively account of the Sheppard case
see C.H. Rolph, op. cit., ch. 3.
20
The behaviour of the police and volunteers should have been prevented by the Home Office
Consolidated Circular of January 1, 1925, referred to above.
18
102
VIDEO IDENTIFICATION PARADES
identification allows such stratagems to be achieved electronically. 21 In one case
an uncoöperative suspect wearing unique eyeglasses refused to remove them. The
Pinnacle system allowed the editor to put the same glasses on the faces of all the
stand-ins.
(viii) Concentration on facial appearance
Generally speaking visual identification of an individual is through recognition of
the face, the unique visual fingerprint of human individuality. To that end factors
such as height and build are extraneous, though they may be relevant in
corroborating a facial identification. By concentrating on the head and shoulders of
participants video identification removes those irrelevant factors from the
equation.
(ix) Portability and elimination of witness stress
It has been arguednotably by Peter Burton, Head of the Wakefield Imaging
Unitthat an important advantage of using a laptop, DVD or VHS tape is that it
will enable witnesses conveniently to view the line-up in the protective, private
and relatively stress-free environment of their own home or from a hospital bed,
while the details of the crime are fresh in their minds. In practice, however, this
benefit is contingent on the suspect’s solicitor being present or on the procedure
being itself video-recorded, so an Identification Officer would have to travel to the
witness’s home either accompanied by the suspect’s solicitor or equipped with a
camcorder to film the witness making an identification or both, if persuaded to go
beyond the strict requirements of Code D.22
(x) Increased accuracy of identifications
Since the revised code has effectively made video identification the exclusive
procedure to be followed, it has been noted that the one factor which might have
been expected to be cited in justifying the change would have been the greater
accuracy of video as against the traditional live parade, yet the preamble to the
consultation draft curiously contained no reference to any such consideration. 23 In
fact the evidence appears to indicate that there is a significantly lower risk of false
positive identifications with the method of showing video clips than with
traditional parades. This is considered in more detail below.
The technique is known as “pixellation.” Bogan reports that its development and use is not presently
widespread: op. cit., para 5.36, p.71. It is understood that the VIPER centre at Wakefield has full
facilities, and the service is available nationwide, even if not all local centres are suitably equipped.
PROMAT allows sophisticated electronic adaptation of imagery, including changes in appearance of
the background in order to assimilate images of the suspect with that of the foils. For Annex A
provisions on electronic alteration of images see below, pp.120-122.
22
See Annex A.9 and see generally section C.(4), p.142, et seq, below. The issue of witness stress
elimination in the context of removing the suspect’s absolute right to have his or her solicitor present at
the identification has been raised in the Consultation Paper Modernising Police Powers: Review of the
Police and Criminal Evidence Act (PACE) 1984, Home Office, March 2007, paras. 3.39 to 3.41,
considered below at pp.148-150.
23
Roberts and Clover, [2002] Crim.L.R., at p.885.
21
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VISUAL IDENTIFICATION PROCEDURES UNDER PACE CODE D
(xi) Empahsis on sequential as distinct from simultaneous inspection
The VIPER system was devised by the police themselves, originally without
any direct input from psychologists.24 However, as the images are shown to the
witness sequentially (albeit with permissible opportunity to freeze images and to
switch back and forth between images out of sequence), the method to a greater or
lesser extent will tend to accord with the approval given to sequential viewing by
psychologists on the basis of theory and research considered later. Certainly video
identification naturally lends itself to pure sequential presentation (with no
opportunity to concentrate at length on certain of the participants for the purpose
of comparison between them but rather a decision to be made on each participant
in turn as that person´s image is displayed). Even without a strict sequential
manner of proceeding it will reduce the opportunity for the witness to compare the
images with each other, an unavoidable concomitant of live parades which is
thought to be conducive to false positive identifications.
(5) Possible shortcomings
One conjectured disadvantage of video identification is that it cannot, as can the
live parade, furnish the witness with an ad hoc opportunity for observing particular
requested aspects of posture and gait and other body movements, or of demeanour
and expression when uttering a remembered sequence of words, of the kind which
may furnish clues as to identity. On the other hand, parades, whether live or in
video format, are primarily intended to test the ability of a witness to make a
recognition by the unique factor of facial appearance. It might be thought that,
even in conjunction with facial examination, a comparison between participants by
asking them to speak certain phrases or adopt various mannerisms or expressions
is prone to selection by guesswork.
It is arguable that another disadvantage is that video clips give no opportunity
for the comparison of height or build, but this may be a blessing in the light of
research considered immediately below, suggesting that comparison between
participants on a traditional parade is conducive to false positive identifications.
(6) Research comparing VIPER-type procedure with traditional parades
In an experiment conducted many years ago with the use of colour slides projected
to life size instead of a live parade mistaken identifications were higher in the
conventional parade than with the colour slides, a finding which, it is thought
reflected the fact that, at a time when witnesses were in the same room as the
parade (rather than as in the practice developed later of viewing the line-up from
behind a one-way glass screen) witnesses tended unconsciously to avoid looking
See Kemp, R., Pike, G., and Brace, N., “Video-based identification procedures: Combining best
practice and practical requirements when designing identification systems,” Psychology, Public Policy,
and Law, December 2001, for a discussion on the contribution which psychologists might make to the
design of investigative procedures.
24
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VIDEO IDENTIFICATION PARADES
directly into the face of parade participants.25 However, even with the intervention
of a one-way glass screen, debilitating stress levels may well remain high.
A review of research findings led the New Zealand Law Commission to
conclude that procedures using live subjects produced more reliable results than
those using video recordings. 26 According to some research accuracy rates were
comparable when the true “culprit” was present on the parade or was one of the
array.27 However, the results of an experiment conducted by Professor Tim
Valentine of Goldsmith’s College, University of London, suggested that when the
true culprit was not present video parades were fairer to the suspects than
conventional live parades.28 Briefly, the experiment involved showing mock
witnesses video parades or photographs of live parades held as part of the
investigation of real criminal cases. For each parade, video or live, the mock
witnesses were asked to read the first description of the offender given by the
original, real, witness and were then required to guess who the suspect was on the
parade. The mock witnesses simulated a notional real witness who (a) had no
memory of the culprit at the time of the identification procedure; (b) could
remember the description previously given to the police, and (c) purported to make
an identification. In a perfectly fair selection of foils, the mock witnesses would
have had no basis on which to make their selection and would merely have to
guess who the suspect was. From perfectly fairly constructed arrays a large
number of mock witnesses would correctly guess the suspect on 11 per cent of
occasions because the parades all contained a suspect and eight foils. In fact,
however, 1 in 4 mock witnesses (25 pc) identified the suspect in live parades,
showing some bias against the suspect, compared with 15 pc of mock witnesses
who identified the suspect from video parades. Whereas the vidoe parades were
therefore signficantly fairer than the live parades (15 as against 25 pc) the video
parades were not significantly less fair than would have been expected by chance
(15 as against 11 pc). Other research suggested that video parades of AfricanCaribbeans and of white Europeans using equal numbers of mock witnesses from
both ethnic backgrounds were equally fair to suspects of both ethnic groups, 29 a
Dent, H., and Gray, F., “Identification on Parade” (1975) New Behaviour 366-369, cited in the Devlin
report, para. 5.56.
26
The Law Commission of New Zealand, Total Recall? The Reliability of Witness Testimony Evidence,
Miscellaneous Paper 13, Wellington 1999.
27
See, e.g., Cutler B.L., et al., “Eyewitness Identification Test Media,” in Ross, D.F., Read, J.D., and
Toglia, M.P. (eds.) Adult Eyewitness Testimony:Current Trends and Developments, Cambridge:
Cambridge Univ. Press, 1994.
28
Valentine T. and Heaton, P., “An evaluation of the fairness of police lineups and video
identifications,” 13 Applied Cognitive Psychology (1999) 13 (special issue), S59-S72. See also Lindsay,
R., and Wells, G., “Improving Eyewitness Identifications From Lineups: Simultaneous Versus
Sequential Lineup Presentation,” (1985) 70 Journal of Applied Psychology 556, and see Online
Conference Report on the British Association Annual Festival of Science, September 2001, reported on
the New Scientist web site.
29
Valentine, T., Harris, N., Colom Piera, A. and Darling, S., “Are police video identifications fair to
African-Caribbean suspects? (2003) 17 Applied Cognitive Pxychology 459-476.
25
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VISUAL IDENTIFICATION PROCEDURES UNDER PACE CODE D
finding which contrasted favourably with earlier research suggesting that live
parades may have been less fair to ethnic minorities than to white Europeans. 30
B. RULES OF PROCEDURE FOR VIDEO IDENTIFICATION
(1) Annexes A and E
In addition to the relevant provisions of section 3, video identification parades
must be carried out in accordance with Annex A. 31 Annex E, dealing with the
showing of photographs, is also relevant. The overall purpose of these provisions
is to prevent the contamination of the witness’s memory.
(2) Promptness in conducting a procedure
When an identification procedure is required, in the interests of fairness to suspects
and witnesses, it must be held as soon as practicable.32 Coupled with the practical
ease of arranging a video identification at very short notice this provision will now
make it feasible to implement the suggestion, expounded earlier, for arresting
persons who have been stopped in the street and against whom there are
reasonable grounds for suspicion, instead of holding an impromptu street
identification process ostensibly on the basis of the supposition that there are as yet
insufficient grounds to make an arrest.
(3)
Identification Officer and delegated duties in the case of video
identification
Paragraph D3.11 provides that the arrangements for, and conduct of, formal
identification procedures, including video identification, and the circumstances in
which such procedures must be held (ie those set out in Annex A) must normally
be the responsibility of the “identification officer,” an officer not below the rank of
inspector. The officer must not be involved with the investigation, a prohibition
which is clearly fundamental to the aim of ensuring the integrity of the process.
Before the major restructuring of Code D in 2002, old paragraph D2.2 made no
provision for delegation of identification duties by the identification officer to
other officers or civilian staff. A change in this respect was signalled in 2002,33
what is now D3.11 was duly formulated to allow such delegation “[u]nless
otherwise specified,” and in practice much of the work in arranging and
conducting identification procedures is indeed delegated.34 In delegating these
Wright, D.B. and McDaid, A.T., “Comparing system and estimator variables using data from real
lineups” (1996) 10 Applied Cognitive Psychology 75-84.
31
D3.6.
32
D3.11.
33
Recommendation by Pike, G., Brace, N. and Kyan, S, The Visual Identification of Suspects:
Procedures and Practice, Home Office Briefing Note, 2/02, March 2002, p.6.
34
Staff to whom identification procedures may be delegated must be employed directly by the police
authority and under the direction of the Chief Officer or employed by a person contracted to the police
30
106
VIDEO IDENTIFICATION PARADES
procedures, the identification officer must be able to supervise effectively and
either intervene or be contacted for advice. 35 The officer remains responsible for
ensuring that the procedures and tasks are carried out correctly in accordance with
the Codes of Practice.36
Annex A.1 states that the arrangements for obtaining and ensuring the
availability of a suitable set of images to be used in a video identification must be
the responsibility of an identification officer, who has no involvement with the
case. It is not clear if this is represents a “specified” exception to the licence to
delegate or whether it permits delegation of the responsibility. Subject to two
conditions the duties of the identification officer with regard to giving the suspect
the information required by the code and serving on the suspect the requisite
written notice detailing that information may be performed by the custody officer
or other officer not involved in the investigation. 37 The conditions are (a) that it is
proposed to hold an identification procedure at a later date, e.g., if the suspect is to
be bailed to attend an “identification parade,” and (b) that an inspector is not
available to act as the identification officer before the suspect leaves the station.
The officer concerned must inform the identification officer of the action taken and
give them the signed copy of the notice. 38 A Note for Guidance advises that the
purpose of these provisions is to avoid or reduce delay in arranging identification
procedures by enabling the required information and warnings to be given at the
earliest opportunity.39
Later, in addressing the question of measures which might be put in place to
prevent the communicating of cues to witnesses during video identification
sessions, an added safeguard that will be canvassed is the amending of Code D to
provide for such sessions to be “double-blind.”40 In other words, operators should
be unaware of the identity and appearance of the suspect and thus in no position to
send signals to the witness, whether consciously or unconsciously. Such a measure
would require delegation to become obligatory (not merely permissible) under the
code in order to guarantee a division of function between (a) the police officer or
civilian staff member conducting the actual identification with the witness and (b)
authority: D2.21. Such staff must have regard to any relevant provisions of the PACE Codes of
Practice: D2.22.
35
D3.11.
36
D2.21.
37
D3.19. The information to be given is that set out in D3.17. The written notice is required by D3.18.
38
D3.19.
39
Note 3C.
40
See below B.(27), pp.142-143. See Levi, A., and Lindsay, R., “Issues concerning policy
recommendations: The example of lineups and photospreads,” Psychology, Public Policy, and Law,
December 2001; Wells, G.L., Small, M., Penrod, S., Malpass, R., Fulero, S. and Brinacombe, C.,
“Eyewitness identification procedures: Recommendations for lineups and photospreads,” (1998) 22
Law and Human Behaviour, 603-647. It has been noted that this might be rather difficult to achieve
with live parades in practice but slightly more manageable with video identification. Kemp, R., Pike,
G., and Brace, N., “Video-based identification procedures: Combining best practice and practical
requirements when designing identification systems,” Psychology, Public Policy, and Law, December
2001.
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VISUAL IDENTIFICATION PROCEDURES UNDER PACE CODE D
the officer or staff member selecting the array of images, who necessarily has to be
aware of the suspect’s identity in order to carry out that exercise.
In the consultation process leading to the code revision which came into
force on 1 January 2006 Sir Ronnie Flannagan and Her Majesty´s Inspector of
Constabulary recommended the removal of the requirement for an inspector to be
in charge of identification procedures and recommended the addition of a section
providing that the appointment of an identification officer should be a matter for
the Chief Constable to decide. In the Schedule of proposals and Home Office
responses, in which this proposal is recorded, it is noted that the Home Office were
proposing to amend the first sentence in D3.11 to read “...an officer or police staff
appointed as an identification officer by the chief officer of their police force and
who is not involved with the investigation.” It was further noted that the
recommendation reflected a move towards using police staff and that the Home
Office welcomed the proposal but required clarification from their legal advisors
on the need for primary legislation to enable the Designated Identification Officer
to take custody of the detainee and/or use reasonable force. This was to be subject
to further consultation and discussion with stakeholders.
The Home Office Consultation Paper Modernising Police Powers: Review of
the Police and Criminal Evidence Act (PACE) 1984, published in March 2007,
posed the question whether there was any need to consider provision of any
identification procedures and processes in primary legislation, as distinct from
Code D (para 3.41). No hint was given in that terse sentence as to what exactly the
authors had in mind but what in fact was being considered was an elaboration upon
the Flannagan proposal of 2006. The scheme had in fact been set out in a paper
issued by the National Identification Forum. 41 It involved a radical change in the
status of Identification Officers, to be effected by the implementation of primary
legislation. The changes in contemplation were likely to lead to a serious dilution
of the safeguards which have been achieved through evolution of the general
PACE scheme.42
In place of the requirement for the identification officer to be of the rank of
inspector it was intended to create the post of Designated Identification Officer
under schedule 4 to the Police Reform Act 2002, which “would ensure that staff
appointed to undertake the role would be subject to the existing disciplinary and
liability provisions that apply to all police officers and designated police staff.” 43
41
Also called Modernising Police Powers: Review of the Police and Criminal Evidence Act (PACE)
1984, issued September 2006 (hereafter “NIF paper”).
42
I am grateful to Police Inspector Martin Griffiths, of West Yorkshire Police, whose insights have
inspired a number of the prognostications which follow in the text. These are included in a submission
to the Home Office by the present author and Anthony Heaton-Armstrong, formulated in response to
the Consultation Paper. The submission was subsequently incorporated into articles: see Wolchover, D.
and Heaton-Armstrong, A., “PACE Code D Review on video ID parades: The innocuous cloaking the
insidious,” [2007] 6 Archbold News 7; “VIPER disappointments in the PACE review,” [2008]
10 Archbold News 4; “Viper and the Vandalizing of PACE,” (2009) 173 Criminal Law and Justice
Weekly 5, January 3 and 10.
43
Para. 7.5.
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VIDEO IDENTIFICATION PARADES
The Act requires Chief Officers to be satisfied that staff are “suitable, capable and
trained.”
The justifications offered by the Home Office for their proposals were
tendentious and unconvincing. Thus, it was suggested—ingenuously it might be
thought—that “using civilian staff has the potential to increase, rather than reduce,
the independence of the post holder.”44 Of course, many people could, with
sufficient training and experience, manage and supervise video identification
procedures perfectly competently. However, it may be queried whether civilian
auxiliaries would in general be more likely to resist the sort of esprit de corps
pressures coming from senior investigating officers to cut corners or misinterpret
the code than do inspector rank identification officers at present. Would
appointment to “designated” status under the 2002 Act really be sufficient to instill
the necessary independent self-confidence to make them more robust than police
inspectors? This is very doubtful.
Under the existing rules decision-making in respect of every formal
identification procedure lies exclusively with the Identification Officer. Indeed,
with the exception of one particular decision which the code requires to be made, 45
there is no obligation on the Identification Officer even to consult the officer in
charge of the investigation. In all other respects any discretion allowed for by the
code may be exercised by the I.O. without the investigating officer having any
recourse to refer the ultimate decision to a more senior officer. The professed
belief of the NIF paper authors that Designated Identification Officers (police
officers of unspecified rank or civilian staff employees) will possess the selfassurance to withstand pressures from senior investigating police officers is belied
by the proposal that “[a]s with the provision for Staff Custody Officers, the Codes
will provide the Identification Officer with recourse to a superintendent in the
event that his or her authority or decision is questioned.” 46 The reality of course,
plainly reflected in the referral proposal, is that, lacking the status of inspector’s
rank and facing pressure from senior police investigators to forego the highest
standards, D.I.O.s would need to feel able to reach for the support of a high
ranking-officer, or, at least, to pass on responsibility for a decision which may
displease the investigator.
The problem lies with the personnel who would be likely to serve as ultimate
referees. It is true that most superintendents have a good working knowledge of the
law on custody and are competent to adjudicate on detention issues referred to
them by custody officers. Many may have been custody officers, or if not, they
would at least have experienced many years of interaction with custody officers as
investigators or supervisors. By contrast, very few would have gained suitable
experience of, not to say a necessary level of expertise, in understanding, the
relatively complex issues raised by the Code D provisions on visual identification
44
Para 7.6.
D3.14. See above, p.46, et seq.
46
Para 7.6.
45
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VISUAL IDENTIFICATION PROCEDURES UNDER PACE CODE D
by witnesses. Lacking the necessary expertise divisional officers might feel
unqualified to engage meaningfully in an area of law and practice in which they
enjoy little experience and might be tempted to take the easy option of simply
supporting the senior investigator, whom they would have been likely to know on
a personal level. Sensing that reticence, and not wishing to press an argument
which they might feel they were likely to lose and to become a nuisance by taking
a particular point in vain, D.I.O.s might prefer simply to back down. It is
understood, for example, that across the country it is not uncommon for a division
to be without its own dedicated inspector rank identification officer, with the result
that requests for video identification tend to be met regardless of the legal position.
Uncontroversially, the NIF paper stated:
“Given the expertise many civilian staff have developed and the need
for designated staff to be suitable, capable and trained the skills and
knowledge they possess will see the post holders develop as specialists
within their field. Designation will also provide a career pathway
enabling staff to be retained and take on new responsibilities.”47
It was proposed to amend “PACE” (ie presumably the Act) in order to place
“witness identification procedures” on the same statutory footing as other
identification powers (eg fingerprinting, photographing and taking tissue samples)
and thus “enable designation to take place” (para 7.8). It is not clear why this could
not have been achieved simply by amending Code D to remove the police status
and rank qualification from the post of identification officer. The requirement for
Chief Officers making an appointment to be satisfied as to suitability, capability
and adequacy of training could presumably be written into the code. In fact, the
forum paper acknowledges that police staff could be authorised to act as
identification officers without primary legislation simply by amending Code D but
asserts that this would “not carry the same weight as the Police Reform Act in
requiring designated staff to be suitable, capable and trained” (para 7.10).
Apparently it requires the imprimatur which only Schedule 4 to the Police Reform
Act 2002 can give to ensure that standards are maintained or even raised.
This assessment might well be justified. However, as already stated, it was
abolition of the present status and rank qualification which was objectionable. By
placing emphasis on the vague notion of “training” and dispensing with that
qualification, there was a very real risk that in the interests of cutting costs highly
experienced and high salaried Code D police inspectors woudl have been removed
from post and transferred to field or more general managerial duties. They would
have been replaced by ancillary staff (police or civilian) currently working under
the supervision of Code D Identification Officers. The likelihood was that they
would have been promoted to the post of D.I.O. with only a modicum of “add-on”
training.
47
Para 7.7.
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VIDEO IDENTIFICATION PARADES
The NIF paper envisaged that D.I.O.s could also be empowered to exercise
other complementary identification powers and duties under PACE, such as the
taking of fingerprints, photographs, samples and footwear impressions currently
assigned to designated detention offices (para. 7.9). There were three potential
problems with this proposal.
First, the management and supervision of video identification parades and
attendant procedures is time-consuming and amounts to a full-time job. To
increase the burden with unrelated, undemanding and laborious tasks would only
have diminished the time available for work requiring careful thought, skill and
experience, to the inevitable detriment of standards.
Second, to conduct those other procedures identification officers would have
needed to spend much of their professional time in the custody area. This would
have involved considerable inconvenience and time-wasting in coping with
demands to be in two places a once, since video identification facilities must be
kept well away from the custody area in order to avoid witness contamination and
intimidation.
Third, the other tasks required little evaluation and in many forces were
performed by staff on a lower pay scale. The result was likely to be a downgrading
in the perception of the status and importance of the post, a result directly
contradictory of the proclaimed aspiration of investing it with even greater
independence than police inspectors had. By abolishing the inspector qualification
the status of the post would have been reduced. To diminish it further by
associating it with comparatively low-status duties, would have made it that much
harder for post holders to persuade high-ranking investigators to accept their view
on the conduct of procedure.
(4) Officers involved in the investigation
Of very long established provenance is the principle that no officer or any other
person involved with the investigation of the case against the suspect, beyond the
extent required by the provisions in paragraphs D3.5 to 3.10 for arranging and
conducting identification procedures, may take part in the procedures or act as the
identification officer.48 So important is the rule that it has been very strictly
applied.49 The general prohibition is not incompatible with the process of
consultation between the identification officer and the officer in charge of the
48
D3.11.
See e.g., Gall [1989] Crim.L.R. 745, C.A. (investigating officer permissibly escorted the witness to a
parade but then entered the parade room and had the opportunity of speaking to the witnesses before the
parade took place; held, although there was nothing to suggest anything untoward had occurred the
evidence ought to have been excluded); Quinn [1995] 1 Cr.App.R. 480, C.A., (investigating officer
wrong to have conducted a demonstration of an identification parade to witnesses before the actual one
was held); Ryan [1992] Crim.L.R. 187, C.A. (“substantial breach” of the code where investigating
officers attended a robbery victim at the police station where a confrontation was held). Cf. Walters
[2001] EWCA Crim 1261 (driving the suspect to the police station for a parade held not part of the
arrangements).
49
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VISUAL IDENTIFICATION PROCEDURES UNDER PACE CODE D
investigation which the code requires in the determination as to the appropriate
procedure to be used.50 An ancillary safeguard against involvement by
investigators in the selection of images and the risk of influencing witnesses is the
rule that no one involved in the investigation is permitted to view the images to be
used for the procedure before they have been shown to the witness. 51
(5) Notice to the suspect
Reference has already been made to the provisions of D3.17, requiring the suspect
to be given an explanation of various specified matters before arrangements are
made for a video identification (or live parade, or group identification). Reference
was also made to D3.20 permitting the explanations to be delayed where it might
induce the suspect to take steps to avoid being available to participate in the
identification procedure. In addition to the explanations already mentioned, an
explanation must also be given to the suspect as to:





the purposes of the video identification52
the entitlement to free legal advice 53
the procedures for holding the video identification, including the
suspect’s right to have a solicitor or friend present 54
the special arrangements for juveniles, if appropriate 55
the special arrangements for mentally disordered or otherwise
mentally vulnerable people, if appropriate56
It has already been mentioned that the information which must be given under
D3.17 must also be recorded in a written notice to the suspect.57 Suspects must be
given a reasonable opportunity to read the notice, after which they should be asked
to sign a second copy to indicate if they are willing to co-operate with the making
of a video and the signed copy must be retained by the identification officer. 58
(6) Details of any “first description” to be disclosed to suspect
before any video identification is carried out
Reference was made in Chapter 1 to the requirement laid down by paragraph D3.1
for any first description given by a witness of a suspect to be recorded.
Before any video identification parade is carried out the suspect or their
solicitor must be provided with details and where practicable the record of the first
50
D3.11. Such consultation is required by D3.14, discussed above in C.(2)(iii), at p.84-85.
Annex A.15.
52
D3.17(i).
53
D3.17(ii).
54
D3.17(iii).
55
D3.17(vii).
56
D3.17(viii).
57
D3.18.
58
Ibid.
51
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VIDEO IDENTIFICATION PARADES
description of the suspect by any witnesses who are to attend the video
identification.59 The code makes no reference to later descriptions (which may be
at variance with the first description) but it has been suggested that subsequent
descriptions should equally be disclosed.60 In any event, a later description
arguably comes within the meaning of a “first” description by virtue of being an
amendment to it.
The provision facilitates an assessment of the suitability of the proposed foils
by suspects and their solicitors and it may well have an impact on whether any
objection is taken or any requests for adjustments are made. Thus, if the suspect
has a facial mark and a similar mark is described by the witness, a request would
be certain to be made for the mark to be concealed by the placing of a pixellated
blur on the image of the suspect and on the images of each of the foils. However,
where no such feature had been described previously, the suspect and solicitor may
have a more difficult and delicate decision to make. On the one hand they might
decide to forego such a request in order not to forfeit the potential opportunity at
trial of being in a position to stress the considerably enhanced exculpatory
significance of a failure by the witness to pick out the suspect, or of the witness’s
expressed reluctance to make a positive identification. On the other hand, this may
be a high risk strategy. As has been cogently pointed out, 61 if the distinctiveness is
not suppressed by eliminating it from the suspect’s image and from the foils it may
be that the witness will profess to recognise the suspect by the distinctive feature,
claiming that the sight of it revived his memory, or that he in fact mentioned it
when the original description was given but that it was doubly missed from the
recordby the police maker and then by himself when checking the record. In fact
he may simply be latching on to a previously unobserved feature and using it in the
belief that it will enhance his appearance of confidence. The choice whether to
leave the distinction or to suppress it may be a difficult one, but the profession by
the witness of a sudden revival of memory or asserting poor record-keeping and
careless verification is liable to prove unconvincing in the face of sceptical crossexamination. In the end, if it has not been previously referred to, it may well be
worth leaving the feature distinct.
(7) Giving notice of previous showing of photographs or
computerised or composite likeness
Reference has already been made to paragraph D3.3, the effect of which is to
permit witnesses to be shown photographs, computerised or artist’s composite
likenesses or similar likenesses or pictures (including “E-fit” images) if the
identity of the suspect is not known to the police or if a known suspect is
unavailable to participate in an identification procedure. Where the police have
shown a witness an image of a culprit or suspect this may well undermine the
59
D3.1, D3.17(xiii), and Annex A.8.
See Bogan, op. cit., at para. 5.32, p.70.
61
Ibid., para. 5.37.
60
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VISUAL IDENTIFICATION PROCEDURES UNDER PACE CODE D
value of any subsequent formal identification procedure. Accordingly, when a
witness attending a video identification has previously been shown such material
the suspect and their solicitor must be informed of the fact before the procedure is
conducted.62 It is the responsibility of the officer in charge of the investigation to
make the identification officer aware that this is the case. 63 The code contains no
express requirement for disclosure of the material at that stage. 64 However, there
would be little point in requiring the police to pass on the fact that the witness had
been shown the material if the suspect and representative were not also to enjoy
the right (subject to considerations of practicability) to view the material before the
identification procedure continued. The evident purpose of giving the information
beforehand is clearly to afford the suspect and representative the opportunity to
request any adjustments in the presentation of the selected images which they
perceive to be necessary in the light of the material shown. Thus, it may be that
although the suspect has a distinctive facial scar no such feature was described by
the witness and the representative may originally have taken the view that it was
therefore unnecessary to request that the scar be masked electronically with
identical masking being added to the images of the foils in order to match the
suspect.65 However, if it turns out that one of the photographs previously shown
depicted the suspect, then even though the witness never picked out the suspect
when viewing the photographs the fact that the witness had been shown a
photograph of the suspect would be almost certain to occasion such a request. (Of
course, failure previously to pick out the suspect’s photograph might make it
unlikely that an identification would be made, so obviating the need for a
procedure.)
(8) Measures relevant where moving images, still photographs, constructs
and information have previously been disseminated via the media
Reference was made earlier to D3.28, which states that nothing in the Code
precludes the showing of films or photographs to the public through the national or
local media, or to police officers for the purposes of recognition and tracing
suspects. A witness who is to participate in a formal identification but has
previously seen material in the media depicting a possible culprit might well be
influenced in making an identification. The code affords some protection against
this possibility by providing that the suspect or their solicitor must be allowed to
62
Anex E.9. The fact must also be included in the Notice to Suspect: D3.17(xi). Annex e.9 does not
apply where an image was created and based on the witness’s own description: Wright [1994]
Crim.L.R. 131, C.A.
63
Annex E.9 and see Note for Guidance 3B.
64
Noted by Bogan, op.cit., at para. 5.33. Contrast may be drawn with D3.29 and Annex E.9, infra,
which expressly grant suspects or their solicitors the right to view media material before a video
identification procedure.
65
See above, section (6), at p.61, for the arguments for and against requesting the distinctive feature to
be added electronically to the foils where it had not been mentioned by the witness in the first or any
subsequent description.
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view such material before any video identification procedure is carried out,
provided it is practicable and would not unreasonably delay the investigation. 66 To
this end it is further provided by the paragraph that when such a broadcast or
publication is made, a copy of the relevant material released to the media for the
purposes of recognising or tracing the suspect must be kept. The evident intention
behind the provision is that suspects and their representatives should have an
opportunity to make representations on the selection of foils or the form of
presentation in order to request any adjustments which they perceive to be
necessary in the light of the appearance of an image depicted in the media
material. The example of the scar on the suspect’s face postulated above in relation
to photographs previously shown to the witness is equally applicable in relation to
viewing material previously broadcaset or published in the media.
It might have been supposed that an additional safeguard would be to ask
witnesses before any identification procedure if they have seen any images in the
media. The code indeed provides for such an inquiry but only after the witness has
participated in the procedure. Thus each witness involved in the procedure must be
asked, after they have taken part, whether they have seen any broadcast or
published films or photographs relating to the offence or any description of the
suspect and their replies must be recorded.67 The rationale for a delayed request is
not immediately obvious but it may be that the draftsman had in contemplation an
assumption that the requirement to offer inspection would serve as a sufficient
safeguard whereas it was supposed that asking the witness if they had seen such
material might trigger a recollection which would otherwise have remained
dormant. Such a rationale would be to overlook the potency of unconscious
memory. It is noteworthy that the paragraph is silent about the retention of material
shown to police officers under D3.28.
(9) Assimilating movements, positions and condition of
suspect and foils to be depicted in the images
Full consideration was given earlier to the requirement that “[t]he images used to
conduct a video identification shall, as far as possible, show the suspect and other
people in the same positions or carrying out the same sequence of movements.” 68
As already pointed out the suspect and volunteers are conventionally recorded
sitting in the same position against the same neutral backdrop and with the same
lighting. Each person faces the camera, turns to one side and then to the other and
finally faces the camera again. Each aspect is timed to last an equal number of
seconds.
66
D.3.29 and Annex A.8. Although the wording is disjunctive the suspect and their solicitor are
presumably both permitted to view the material.
67
D3.29 and Annex A14. D3.29 states that it does not affect any separate requirement under the
Criminal Procedure and Investigations Act 1996 to retain material in connection with criminal
investigations.
68
Annex A.3. See above Chapter 3, C.(3)(i)(c), p.87-88.
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The images must be shown under identical conditions unless the identification
officer reasonably believes it is not practicable to do so because of the suspect’s
failure or refusal to co-operate or other reasons, provided any difference in the
conditions would not direct a witness’s attention to any individual image. 69 This
ought not to be difficult to achieve. For example, a suspect in custody who has
refused to co-operate might conveniently be video-recorded covertly in the
precincts of a police station. The police might already have recorded such footage
routinely as part of an ongoing CCTV security and surveillance programme
covering the custody areas of the police station.70 Volunteers might then be
similarly recorded in the same or similar location to avoid drawing attention to the
suspect.71 A suspect on bail might be recorded surreptitiously walking along a
particular road with comparable footage being recorded of volunteers walking
along similar roads.
Where a known suspect is not available or has ceased to be available and it has
not been possible to obtain video footage of the suspect covertly, or at all, the
identification officer may follow the sequential video identification format of
procedure but using still images, which may be obtained covertly if necessary. 72
As suggested earlier the still image of the suspect may conceivably be made up
with a photograph taken from criminal records, from one taken during surveillance
prior to arrest, from one seized at the suspect’s address or from his among
belongings, from one taken while the suspect was initially detained at a police
station or from a CCTV time lapse tape. 73 It has been suggested that the use of a
photograph from criminal records will allow a high degree of uniformity to be
achieved if similar sourced stills of the foils are used. 74 The Custody Suite Imaging
System now provides a potentially unlimited database of foils nationally available
under the PROMAT system. However, it is not clear whether this would require
the permission of those persons shown in such photographs. (The images stored in
the various identification data bases such as the VIPER collection are used by the
consent of the persons they depict.) In any event, it is understood to be a
comparatively straightforward exercise of modern computer technology for still
photographs taken from the moving images held in the VIPER database to be
adapted to match most supplied portrait photographs in terms of lighting and
background.
69
Annex A.3. The reasons why identical conditions are not practicable must be recorded on forms
provided for the purpose Annex A.4.
70
For the evidential use of video monitoring recordings of the police station precincts, see Wolchover,
D., and Heaton-Armstrong, A., Confession Evidence, London: Sweet and Maxwell, 1996, pp.460-463.
71
As in the cases of Kennedy (1992) unreported, C.A. 20 March, 90/02296/Y4, Perry (2000)
unreported, 3 April, C.A., and Perry v. United Kingdom (2003) E.C.H.R. No. 63737/00, 17 July; [2003]
Crim.L.R. 281.
72
D3.21.
73
See above Chapter 3, C.(3), pp.86-87.
74
See Bogan, op. cit., para. 5.50.
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VIDEO IDENTIFICATION PARADES
(10)
Requirement for the selection of foils conforming to
the suspect´s “general appearance”
Reference has already been made75 to the long-established rule for identification
parades that the chosen volunteers should “as far as possible resemble the suspect
in age, height, general appearance and position in life.” This principle has been
applied to video identification, the rule for which formerly was that “[t]he set of
images must include the suspect and at least eight other people who, so far as
possible, resemble the suspect in age, height, general appearance and position in
life”76 but which under the code revision which came into force on 1 January 2006
was modified to remove the requirement for height conformity on the ground that
within reason it is impossible to tell a discrepancy in height from the images
displayed.77
For reasons which are summarised below psychologists have argued that it is
preferable to use foils whose appearance matches a previous description given by
the witness rather than the suspect, at least where the description involves no
obvious or radical disparity with the suspect. 78 The code emphasis on “general
appearance” would certainly permit the use of foils whose facial description may
differ on some specific points from that of the suspect and would arguably allow
for a choice to be made between match to culprit description and suspect
resemblance methodology.
In isolating the rationale for choosing between match to description and suspect
resemblance it is necessary to distinguish between cases in which the witness has
given a description consistent with the appearance of the suspect in all attributes
mentioned in the description and those in which the suspect does not match the
witness’s description in respect of some attributes.
(i) Description of person seen matches the suspect
As Valentine has explained, where the description of the person seen (for ease
of reference, the “culprit”) matches the suspect it introduces no bias against the
suspect if the foils differ on some feature that was not mentioned in the original
description:
“For example, imagine a witness who described the culprit as “white,
male, mid-forties, with long, dark hair.” The suspect fits this description
and has a pale complexion and prominent dark eyebrows. A culpritdescription strategy would require that all lineup foils would be white
males, say between 43 and 47 years old with long, dark hair. No attempt
75
See A.(4)(v) above, at p.101-102.
Annex A.2..
77
The change was proposed by the CPS: see schedule of proposals and HO responses.
78
Originally argued by Luus, C.A.E. and Wells, G.L., “Eyewitness identification and the selection of
distractors for lineups” (1991) 15 Law and Human Behaviour 43-57. See also Wells, G.L., Small, M.,
Penrod, S., Malpass, R., Fulero, S. and Brimacombe, C., “Eyewitness identification procedures:
Recommendations for lineups and photospreads,” (1998) 22 Law and Human Behaviour 603-647. See
further below p.119.
76
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VISUAL IDENTIFICATION PROCEDURES UNDER PACE CODE D
would be made to match the prominent eyebrows or the pale complexion.
Indeed there should be a range of variability around these and other features
not mentioned in the description (e.g. build, face-shape etc.). Heterogeneity
of features not mentioned in the description will help a witness with a
reliable memory to distinguish the culprit from the foils. If the police
suspect is the culprit, the witness may be able to identify the suspect,
because on seeing the lineup, she recognises the man with the pale
complexion and prominent eyebrows. A lineup that consists of a number of
people chosen because they closely resemble the suspect in all aspects of
their appearance, will make it difficult even for a reliable witness to identify
the culprit, if present. However, if the suspect was not the culprit, the pale
complexion and prominent eyebrows are no more likely to trigger a
mistaken identification than some other features on a foil (maybe thin
eyebrows and an olive skin tone) because the witness has not seen the
suspect before. A strategy of suspect resemblance, which attempts to match
all features including the pale complexion and the prominent eyebrows, will
produce a procedure that is less sensitive than a lineup constructed of foils
chosen to match the witness’s description of the culprit. As the culprit
description strategy does not introduce any systematic bias against the
suspect both procedures should be equally fair.” 79
Although selection by match-to-culprit description may therefore be no less fair to
the suspect than selection by suspect resemblance the latter is likely to offer a more
tempting option for the suspect since it might well be supposed that, distracted by
an array of near-clones, the witness will be confronted with an almost forbidding
obstacle to surmount in making an identification. However, selection by suspect
resemblance may ultimately prove to be a mixed blessing for the suspect because
the closer the resemblance between foils and suspect the more forlorn will be the
chances of the defence successfully mounting any challenge if the suspect should
happen to be identified.80 From an objective standpoint although there is some
experimental evidence to suggest that foils selected by culprit description may
produce more reliable identification evidence than those selected by suspect
resemblance, taking all relevant studies into account there is, as Valentine points
out, little empirical evidence on which to base a contention that a match-to-
“Forensic facial identification,” cited above in Chapter 1, at n.10, para 17.25, original emphasis.
Valentine cautions against placing foils of different sex or ethnic background on the same array where
such “default values” were not mentioned in a description, but he advises that the problem of missing
“descriptors” may be eliminated by police officers taking a careful and comprehensive description: ibid,
at para 17.26, citing a study by Lindsay, R.C.L., Martin, R. and Webber, L., “Default values in
eyewitness descriptions: A problem for the match-to-description lineup foil selection strategy” (1994)
18 Law and Human Behaviour 527-541).
80
McKenzie, I., and Dunk, P., “Identification parades: psychological and practical realities,” in HeatonArmstrong, Shepherd and Wolchover (eds.), Analysing Witness Testimony, London: Blackstone Press
1999, pp.185-186.
79
118
VIDEO IDENTIFICATION PARADES
description strategy is a superior method to construct an array than a suspectresemblance strategy.81
Since the available empirical evidence places no particular premium on the
need to select by culprit description there remains one compelling reason for
selecting by suspect-resemblance. The suspect may have a facial feature which
though not idiosyncratic, such as a tattoo, is nevertheless uncommon, for example,
an abnormally large nose. No such feature is mentioned in the witness’s written
description, though that would not necessarily mean that the culprit had a normal
size nose. The witness might have forgotten that the culprit´s nose was large and
the officer taking a description might have neglected to take the witness through
the appearance of particular facial features. If foils are selected with a normal
range of nose sizes, an identification of the suspect would raise suspicions that the
witness had been told privately about the suspect’s nose size and was therefore on
the look-out for a face with such a feature.
(ii) Disparity between description and suspect’s appearance
A stark descrepancy between the description and the suspect on some
important attribute (for example, age, complexion or hair length) will create an
obvious objection against the selection of foils according to the description, if for
no other reason than that it will draw attention to the suspect. On the other hand it
might be supposed that any risk that the difference will in itself induce the witness
to plump for the suspect rather than foils matching the description will be
substantially more than offset by an assumption that witnesses will normally have
in mind the description they previously gave to the police and that they will be
expecting to identify somebody who matches that description. 82 It is always
possible that on the point of discrepancy the description was mistaken and that
despite the mistake the witness on seeing the suspect in the array instantly
recognised him as the culprit. A witness making such an assertion to the jury might
well be believed. Equally, (as in the example of the large nose postulated above in
relation to non-disparity cases) such an outcome might not unnaturally raise
“Forensic facial identification,” para 17.27, citing Wells, G.L., Small, M., Penrod, S., Malpass, R.,
Fulero, S. and Brinacombe, C., “Eyewitness identification procedures: Recommendations for lineups
and photospreads,” (1998) 22 Law and Human Behaviour, 603-647 (cited above this chapter, n.40).
Valentine cites the report of an experimental study supporting the argument that match to description
selection produces more reliable identification evidence: Wells, G.L., Rydell, S.M. and Seelau, E., “The
selection of distractors for eyewitness lineups” (1993) 78 Journal of Appplied Psychology 835-844.
More correct identifications were made from culprit-description arrays (67 pc) than from suspectresemblance arrays (22 pc) when students witnessed a live staged theft and were immediately asked to
identify the perpetrator from an array of photographs. However, when the culprit was absent from the
array the difference between mistaken identification of foils from culprit description arrays (32 pc) and
those from suspect-resemblance arrays (47 pc) was not regarded as statistically significant. Moreover,
in two other studies no statistically significant difference was found in the rate of correct or mistaken
identifications between culprit-description and suspect-resemblance arrays: Lindsay, Martin and
Webber, cited above, and Tunnicliff, J.L. and Clark, S.E., “Selecting foils for identification lineups:
Matching suspects or descriptions?” (2000) 24 Law and Human Behaviour 231-258.
82
See Valentine, “Forensic facial identification,” para 17.24.
81
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VISUAL IDENTIFICATION PROCEDURES UNDER PACE CODE D
suspicions that prior to the video identification procedure the witness had been
shown a photograph of the suspect or, at least, told of the disparity. In such a case,
selection of foils by culprit-description could prove a recipe for miscarriage. It is
therefore imperative that a selection should be by suspect-resemblance for those
features which do not match the description.
Since a radical discrepancy between some point of the description of the culprit
and the suspect´s appearance would raise obvious suspicions about an
identification of the suspect it might be expected that no identification would be
likely ever to be made, whether employing a culprit description or suspect
resemblance methodology. Indeed in the case of a fundamental disparity it is
conceivable that no procedure would even be contemplated. 83 Presumably
proponents of a culprit description strategy would rarely expect an accurate
identification to be made but it might be wondered what purpose they would in
that case envisage for a comparator test, be it a live parade or a video method.
There is an implied suggestion in the analysis of one commentator with a
background in criminal investigation and academic psychology that, although it
may be explained as “an additional investigatory advantage,” the real purpose
behind the use of foils selected on the basis of a previous description is that where
one of the foils is picked out this “will give the investigators a wealth of
information about the appearance of the culprit.” 84 Yet this can hardly provide a
justification for conducting a video identification procedure. The suggestion by
another commentator85 that the parade might usefully comprise a mix (e.g. some
with fair hair to resemble the suspect, others with dark hair to match the
description) seems based on a similarly confused approach.
(iii) Annex A provision for electronic manipulation of images
Reference has been made to the technique of pixellation, including the
electronic masking out of an unusual facial feature belonging to the suspect with
identical masking out of the same area of the faces of otherwise similar foils.
Annex A makes full provision for such exercises. Thus Annex A.2A provides that
where the suspect has an unusual physical feature, eg, a facial scar, tattoo or
distinctive hairstyle or hair colour which does not appear on the images of the
other people that are available to be used, steps may be taken to (a) conceal the
location of the feature of the suspect and the other people, or (b) replicate that
feature on the images of the other people. It is to be emphasised that the provision
is discretionary. The paragraph continues that for these purposes, the feature may
be concealed or replicated electronically or by any other method which it is
practicable to use to ensure that the images of the suspect and other people
resemble each other. The identification officer has discretion to choose whether to
83
In any event, obvious differences may well warrant a judgment under D3.12 that there being no
reasonable chance of an identification of the suspect no identification procedure is required.
84
McKenzie, I., “Psychology and legal practice, fairness and accuracy in identification parades” [1995]
Crim.L.R. 200; see also McKenzie and Dunk, supra, p.187.
85
Bogan, op. cit., para. 5.37.
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conceal or replicate the feature and the method to be used. Thus the position of a
scar on the image may be pixellated over to cover the scar and pixellation imposed
over the same position on the images of the faces of the foils. Alternatively, if it
can be done effectively a scar might be digitally added to the images of the foils. It
is submitted that a mark, blemish or scar on the suspect should not be eliminated
by the application of cosmetic make-up, because that would to mislead the witness
into supposing that the suspect does not have such a feature. Importantly, Annex
A.2A goes on to provide that if an unusual physical feature has been described by
the witness, the identification officer should, if practicable, have that feature
replicated. If it has not been described, the paragraph suggests that concealment
may be more appropriate.
In a description of the culprit (or “the person seen”) the witness may have
made no mention of a particular facial feature such as a scar. However, suppose
the suspect has such a feature and there are no suitably similar foils available on
the data base with comparable. The identification officer will need to decide
whether to pixellate over the feature on the image of the suspect and over the
equivalent areas of the faces of the foils, or to make no alteration. The suspect
would probably press the officer to opt for the latter course as a consequence of
assuming that not having noticed or recalled a scar the witness would be likely to
assume that a person bearing a scar is not the culprit. The hidden danger for the
suspect is that the witness may have been unconsciously aware of a scar, the
memory of which is only triggered on seeing the suspect, who in other respects
closely resembles the culprit. The revived memory then reinforces what might
otherwise be no more than a tentative feeling of familiarity. Being discretionary,
the option under A.2B to assimilate the appearance of the suspect and foils, or not,
allows the identification officer to accede to the suspect’s request.
Annex A.2B provides that if the identification officer decides that a feature
should be concealed or replicated, the reason for the decision and whether the
feature was concealed or replicated in the images shown to any witness shall be
recorded. Lastly, if the witness requests to view an image where an unusual
physical feature has been concealed or replicated without the feature being
concealed or replicated, the witness may be allowed to do so: Annex A.2C
In order to attempt to comply with the relevant provision of Annex A
pixellation was employed with the consent of the suspect and his solicitor in an
appeal case some years ago to eliminate the suspect’s greying temples and greying
goatee beard, where such features could not be found even after a trawl of the
19,000 images available on the particular database in question.86
86
Marcus (Ruel) [2004] EWCA Crim 3387; [2004] All ER (D) 351 (Nov); case number 0400198 D3,
23 November 2004. However, because of local concerns among the police that masking was impeding
the ability of witnesses to make identifications it was decided at the initiative of the CPS that an
alternative compilation using the same foils should be made, but without masking, and that the
unmasked array should be used if the witnesses were unable to make an identification from the masked
array. The exercise was a novelty and apparently undertaken as a test case. Neither the suspect nor his
solicitor were informed of the intention to resort to the procedure until immediately before the video
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VISUAL IDENTIFICATION PROCEDURES UNDER PACE CODE D
A particular facial feature of the person seen by the witness on the occasion in
question may have been sufficiently noticeable to be described by the witness.
Where the suspect shares that feature it is especially important to select foils who
also share it, otherwise the witness’s attention is likely to be drawn only to those
on the array with that feature and the other foils may well be ignored with the
result that the relevant array is effectively reduced. It may therefore be necessary
to select foils to include a feature which though not normally considered a criterion
for selection, such as eye colour, has relevance in the particular case. 87 The
suspect’s legal representative should be alert to the problem when inspecting the
proposed array and should be prepared to raise the issue with the identification
officer.
(iv) Practical impact of match to description and match to suspect debate
The whole issue of whether to select the foils by reference to culprit description
or on the basis of resemblance to the suspect is actually less important in practice
than the vigour of the debate mentioned earlier might suggest. As between first
description and suspect appearance it is not uncommon to encounter fundamental
disparities over such characteristics as height, build, age, racial type, hair quality,
hair quality and colour, and skin complexion, blemishes or markings. But in very
many casesprobably the great majoritythere will be little starkly contrasting
difference between the description and the suspect. While it is the face which
uniquely distinguishes human individuals from each other and is the key feature
upon which identifications tend to be based, paradoxically, descriptions rarely
contain much detailed facial information. This is because facial characteristics are
difficult to describe,88 particularly for lay persons. Literature abounds in such
precisely understood shorthand as “button nose,” acquiline profile,” “well
chiselled features,” “beetle-browed,” and “lantern-jawed,” and such phrases as
“narrow, deep-set eyes,” “hooded eyelids,” “thin lips,” “high cheek-bones,” “cleft
chin” and “prominent ear-lobes” are in common currency outside the hard covers
of fictional prose. Yet, even then
“. . . language is much too imprecise to be of much use in acquiring the
subtle information regarding each face we encounter. When asked to
identification procedure took place, and the solicitor´s objection to the unfairness of the procedure was
overruled by the identification officer, in spite of the lack of proper notice. In cross-examination a
police inspector (not the identification officer who had presided over the identification) conceded that it
was “blatantly unfair” as it would mean that the Appellant would “blatantly stand out” from the other
images. However, the trial judge allowed in the evidence because, as he said, whatever its flaws it at
least had the virtue of transparency. The Court of Appeal disagreed and quashed the relevant counts of
robbery.
87
See Bogan op.cit., para. 1.32, drawing attention to the risk of latent unexpressed awareness of a
particular facial feature.
88
See McKenzie and Dunk, supra, p.182.
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describe faces people usually resort to simple general labels (eg crafty
looking) or select a few salient features (eg large nose and red hair).”89
Whereas in cases of very serious crime the police will have the time and resources
to assist witnesses in making up photo-fit or E-fit composites of a suspect, this is a
luxury unavailable to police information room operators who need to record
descriptions verbally in order to relay instant information to officers on the lookout for offenders. In the heat and excitement of a 999 call few witnesses have the
perceptive faculties and language skills at their command to emulate Jane Austen
or a Daily Mail crime reporter. In the words of McKenzie and Dunk
“Th[e] Code of Practice requirement [for the recording of first
descriptions] is so recent that it is doubtful whether any serious thought has
been given to police telephone operators’ techniques and the impact of
them on a witness’s ability to store and then successfully (and accurately)
recognise a suspect.” 90
It might anyway be thought that where a description was wholly at variance with
the appearance of the suspect an application of the second, prospective
identification, condition of D3.12 might obviate the duty to hold a parade. Thus,
despite the profession by the witness of an ability to identify the person previously
observed, a fundamental difference between the description given by the witness
and the physical appearance of the detainee being investigated would conceivably
cause the police to decide that there was no reasonable chance of the witness being
able to do identify the detainee.
(11) Two suspects in a single array
Annex A.2 provides that “[o]nly one suspect shall appear in any set unless there
are two suspects of roughly similar appearance, in which case they may be shown
together with at least twelve other people.” This is the counterpart of an identical
provision relating to live parades.91 It has been argued that it is intended to permit
doubling up where two people are suspected of being a sole offender, and not
where two persons are suspected of joint involvement in an offence. 92 It may be
conjectured that the rationale is to reduce the effort and time taken up in searching
the data base for suitable foils. Given that the two are mutually exclusive
Ellis, H.D., “Practical aspects of face memory,” in Wells, G.L. and Loftus, E. (eds.), Eyewitness
TestimonyPsychological Perspectives, Cambridge University Press, 1984, pp.12-37. In one case
described by McKenzie and Dunk, supra, at p. 183, a witness observed a robber under reasonably good
conditions and gave a very detailed description of scarring to the culprits’s face. However, apart from
the scars the only description of the face was that it was “chubby.”
90
Supra, at p.183.
91
Annex B.9.
92
Bogan, op. cit., para 5.41, p.73. Doubling up pales into sweet insignificance compared with the
practice in some parts of the United States referred to above in Chapter 2 at p. 51 where the whole lineup may consist of suspects.
89
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candidates for the role of culprit anyway and are of similar appearance it is
considered that they may safely be used as foils for each other, provided that the
usual minimum of eight volunteers is increased to twelve (so reducing the number
of requisite foils by fifty per cent). In relation to live parades it has been observed
that in practice it is very rare for a parade to contain two suspects, whose interests
in its arrangements might conflict.93 While considerations of economy and
convenience may have made doubling up an understandable expedient for live
parades there would seem to be hardly any justification for it in the conducting of
video parades.
The significance of an additional provision relating to live parades (but not
replicated in the Annex A provisions for video parades) is unclear:
“When all members of a similar group are possible suspects, separate
identification parades shall be held for each unless there are two
suspects of similar appearance when they may appear on the same
identification parade with at least twelve other members of the group
who are not suspects.”94
There is nothing implicit in the language to indicate whether the reference to “all
members of a similar group [who] are possible suspects” is to the suspected
members of a confederacy or whether it merely refers to a group of similar looking
persons all of whom individually are candidates for identification as the single
culprit. In any event, where there are a number of suspects of similar appeaerance
the measure seems to furnish no more than a licence for taking two each at a time
in a single parade with 12 volunteers.
(12) Separate foils for each suspect
The rule for live identification parades is that where a witness is to view separate
parades for different suspects, the parade for each suspect must be made up of a
separate array of volunteers.95 The rule is clearly designed to preclude the
possibility otherwise that the witness may infer the identity of the second and
further suspects from noticing the repeated appearance of the volunteers and hence
recognising them as such. No such rule is found in Annex A for video
identification parades, presumably through a drafting oversight. The interests of
fairness and reliability and a recognition of the spirit of Code D plainly require the
observance of such a rule as if it were in the Codes.
(13) No discussion with witness as to composition of the images
For obvious reasons there must be no discussion with the witness about the
composition of the set of images.96
93
Bogan, op. cit., para. 5.69, p.82.
Annex B.11.
95
Annex B.9.
96
Annex A.10.
94
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VIDEO IDENTIFICATION PARADES
(14) Identification by number
The term “identification parade” originates from the time that the procedure
literally involved the suspect and volunteers parading in a static row while the
witness walked up and down in front of them. The conventional method of making
an identification was for the witness to step forward and touch the person selected
on the shoulder. It always seemed as if there was an element of ritual about this,
involving a possible test of the witness’s resolve and confidence. On the other
hand, touching is unambiguous, whereas being required to describe the position of
the person chosen (“third from the left”) might have occasioned dispute about the
exact position of the person the witness meant to select. Time and resource
constraints have precluded research as to when touching gave way to the use of
selection by number but with the introduction of identification suites and the use of
a viewing room screened off from the suspect and volunteers by a two-way mirror,
identification by physical touching was no longer feasible. With video
identification provision must be made for each person shown in an image to be
identified by number.97
(15) Images of police officers
If police officers are shown, any numerals or other identifying badges must be
concealed.98 This provision is clearly applicable to cases in which officers are
suspected of committing offences while on duty.
(16) Prison inmates
In cases in which an accused or suspect was a serving or remand prisoner it had
long been the practice to conduct identification parades within the precincts of a
prison, if it were considered unsafe to release the prisoner into the custody of the
police so that they could be conducted elsewhere for a parade, for example to an
identification suite. In such a case other inmates would almost invariably be asked
to volunteer themselves as foils. Where a prison inmate is required for
identification and there are no security problem about the person leaving the prison
establishment, the inmate may asked to participate in a video identification to be
conducted elsewhere.99 As well as permitting video identification procedures
involving inmate suspects to be conducted outside the prison the rule appears
additionally to make provision for volunteers who happen to be inmates to
participate in video identification procedures conducted outside prison. It may be
envisaged that the involvement of such volunteers may be necessary for example
to assist in the compilation of an array of foils to match footage of a recalcitrant
suspect which has been recorded covertly in a police station. 100 The police may
97
Annex A.5. See below Chapter 5 for the admissibility of words and acts signifying an identification.
Annex A.6.
99
Annex B.4.
100
As in Kennedy (1992) unreported, C.A. 20 March, 90/02296/Y4.
98
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VISUAL IDENTIFICATION PROCEDURES UNDER PACE CODE D
have been unable to recruit sufficient suitable volunteers from members of the
public and the suspect’s lack of physical stature may have ruled out the
participation of police officers as volunteers.
Where the recording of the suspect for a video identification must be made
within a Prison Department establishment, other inmates may participate in the
provision of comparator images.101 This may be necessary if it is not possible to
record an image of the suspect using a camera angle or against a background or
under lighting conditions which together match the standard used to record the
images of volunteers drawn from the data base. Portable equipment taken to
prison, or equipment permanently retained at the particular prison, may allow such
a match but these options may not always be available. Even where it is feasible to
create the standard conditions within the prison the suspect’s recalcitrance may
preclude their use and covert recording may become appropriate. In cases of the
non-availability of suitable equipment or of a non-coöperating suspect it will be
necessary to record inmate volunteers in order to secure uniformity with the image
of the suspect. In such a case, if a prison inmate is shown, either as a suspect or
not, then either all, or none of, the people shown should be in prison clothing. 102
This will cover the situation where the suspect refuses to shed his prison uniform
or otherwise has no civilian clothes available and none can be found to fit or for
some reason no such suitable clothing can be found for one at least of the inmate
volunteers.
(17) The suspect’s right of reasonable veto on the selection of images
Annex A.7 provides that the suspect or their solicitor, friend, or appropriate adult
must be given a reasonable opportunity to see the complete set of images before it
is shown to any witness.103 If an objection is raised to the set of images or to any of
the participants the suspect must be asked to state the reason. 104 If the objection is
reasonable steps must be taken to remove the grounds for objection, if it is
practicable to do so. If this is not practicable, the suspect and/or their
101
Annex B.5.
Annex A.6.
103
Footage taken on a portable machine, e.g. when the suspect is in prison, may appear different from
the other images and the solicitor should be looking for consistency in image quality, colour, lighting,
camera position, background and duration: see Corre, N., and Davies, J., “Identification on the Move,”
London Criminal Courts Solicitors Association lecture, 21 January, 2003 (lecture notes obtainable from
Neil Corre, e-mail, corre@corre.demon.co.uk).
104
In Quinn [1995] 1 Cr.App.R. 480 it was held that there had been no code breach where the suspect
and his solicitor had played an active role in assembling an identification parade and voiced no
complaint about its composition until the trial. It has been observed that the suspect may be caught in a
dilemma between, on the one hand, refusing to co-operate with what is perceived to be an unacceptable
array and suffering in consequence the resort to a less desirable procedure, and, on the other, facing the
risk that even “a grudging” acquiescence may be taken as approval: Bogan, op.cit., para 5.39, citing
Mendili [2001] EWCA Crim 757. This may be a valid concern where a traditional live parade is in
issue but the commentator here was referring to video identification, the suspect’s withdrawal of cooperation from which in protest could not conceivably justify the police resorting to one of the less
desirable statutory alternatives.
102
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VIDEO IDENTIFICATION PARADES
representative must be told why their objections cannot be met. The objection, the
reason given for it, and why it cannot be met must be recorded on forms provided
for the purpose.
Reference has already been made to the variation in practice over the initial
selection of images and to the fact that in the Metropolitan Police identification
officers make the initial selection of images and present the complete set to the
suspect for consent. It is evident that this practice is determined by the ambit of
Annex A.7, which, notably, bestows suspects with no right to be involved in the
initial selection of images from those transmitted from the Viper centre but merely
furnishes a right of reasonable veto over the “complete set of images,” subject to
the practicability of meeting any objection. Although it was originally envisaged
that suspects and their legal advisers would make the initial selection, 105 it is
assumed that the terms of the paragraph were deliberately formulated in order to
meet concerns on the part of the police that they should retain the right of selection
in the first instance, no doubt in the interests of imposing time constraints if not for
other reasons also.
There are two conditions for an objection to be met by substitution. The
objection must be reasonable and it must be practicable to make any change. The
first condition expressly involves an objective test and is clearly therefore
justiciable. The test of whether a task is practicable is necessarily whether it is
“reasonably” practicable and the second condition is also therefore justiciable. As
to the question of practicability it may be envisaged that there could be very little
practical difficulty in requesting the Viper centre to supply unobjectionable
replacement images. It may be assumed that with trained operators in charge of
making selections from the data base and with an adequate number of foils to be
supplied as back-up, it will normally be feasible to meet most reasonable
objections. Whether the objection to a particular image is reasonable can only be
decided by a court inspecting the range of images selected by the police which
they claim it is impracticable to replace. This would necessitate a copy of the
selected images being made available to the defence and to the court for
adjudication. The author’s attention has been brought to one ongoing case
involving proceedings which had advanced beyond the pleas and directions
hearing in the Crown Court. It was proposed to conduct a video identification but
when objection was taken to two out of the nine images selected by the
identification officer the police refused to make any change on the purported
ground of impracticability. It was not clear why it was regarded as impracticable to
request a further small selection of unobjectionable images. The defendant’s
solicitor accordingly asked for a copy of the compilation video so that counsel’s
advice could be sought but the police refused this on the grounds that the
compilation was “data protected,” presumably because it was stored on a data
105
See Peter Burton (Head of the Imaging Unit, West Yorkshire Police Scientific Support Department)
“VIPERthe future of identification parades?” Public Service Review, Information Technology
section, Home Office, Spring 2002, p.34. For an update see “The Viper Revolution,” ibid., Autumn
2003.
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base. It is understood, at the time of writing, that the matter is to be listed for
mention so that a judge can be invited to make an appropriate order. If the data
protection argument were to prevail this would mean that a right to an objective
evaluation available to the defence in relation to live identification parades, in the
form of the long established right to have photographs of the volunteers, would not
be available in relation to video identification.
If the defence take no steps to request a court adjudication before the witness
participates in the identification procedure it is open to question whether the
defence would have any basis for seeking the exclusion of evidence of
identification under section 78 of the Police and Criminal Evidence Act 1984. If
the allegation had resulted in a charge and the case had been sent to the Crown
court it is far from clear whether a judge of the Crown Court would have any locus
to require the police to make a reselection. Again, it is doubtful whether the Legal
Aid Agency would grant a certificate to pursue Judicial Review, even on the
strength of counsel’s advice.
Any impromptu assessment which the suspect and legal adviser make of the
degree of resemblance of the foils to the suspect in determining whether to
approve or object to the array can only be subjective. If, however, the case has
already reached preliminary proceedings when it is sought to hold a video
identification it may be that the court will entertain interlocutory litigation on the
fairness of the selection of images. In that event the provisional selection made by
the police, and their resistance to overtures by the defence to make a more suitable
selection, may be susceptible to objective assessment through expert evidence.
Again, it may be that a trial judge will allow expert evidence to assist the jury on
the fairness of the selection, particularly if the defence have unsuccessfully raised
early reservations or have failed to have the selection reviewed by an expert during
preliminary proceedings. The method of assessing whether the array is slanted
against the suspect is to give volunteers a description of the suspect and to ask
them to identify the offender from an array of images. Selection of the suspect by a
disproportionate number of volunteers will indicate “parade bias” in the
composition of the array. A graphic example of such an experiment was conducted
in order to demonstrate shortcomings in the identification procedures employed by
investigators in the case of John Demjanjuk, convicted in Israel in the late 1970s of
being the Treblinka guard “Ivan the Terrible” who had participated in the murder
of hundreds of thousands of Jews. A number of witnesses had purported to identify
the accused as the mass murderer when they were shown a photograph taken of
him for his immigration to the United States in 1951 set out in an array of
photographs of a number of men. The accused was the only person depicted who
had a round face, short, wide neck and broad shoulders. Wagenaar, a forensic
psychologist recruited by the defence to investigate the procedures used, showed
the array to a test sample of 25 people with the instruction “We are looking for a
man with a full round face, a short wide neck, a bald pate starting.” (Only one
other of the array, a thin man, had a noticeably receding hairline). All 25 of the
sample picked out the picture of Demjanjuk as the wanted person, showing that a
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genuine witness with only a vague recollection of the visual appearance of Ivan the
Terrible, but strong motivation to see him apprehended, could have picked out the
picture on the basis of its close resemblance to this recollection, and nothing
more.106
(18) Ensuring non-communication between witnesses
Annex A.10 provides that the identification officer is responsible for making the
appropriate arrangements to ensure that, before they see the set of images,
witnesses are not able to communicate with each other about the case. 107 Nor must
the witnesses have been able to overhear a witness who has already seen the
material. A witness must not be told whether a previous witness has made any
identification. Only one witness may see the set of images at a time. The general
use of dedicated identification suites, originally introduced for holding live
parades, continues to be of benefit in isolating witnesses from one another
although they can be of little utility in preventing communication between
witnesses who are not strangers to each other, such as family members who are cowitnesses or work colleagues. On the other hand, video identification does not
specifically require witnesses to be assembled for convenience on any one single
occasion, as was the case with live parades, and it is perfectly feasible to ask them
to attend video procedures at police stations on diverse dates to avoid meeting. The
use of portable equipment may certainly permit this, as it will permit sessions to be
undertaken at the home of an infirm or frail witness or at a hospital where a
witness lies injured.
(19) No unauthorised people may be present
No unauthorised people may be present during the procedure. 108 It is not clear
whom this provision is intended to exclude. Clearly officers involved in the
investigation may not be present but that is achieved by the general rule in D3.11.
For obvious reasons the suspect is specifically prohibited from being present but,
106
Wagenaar, W.A., Identifying Ivan: A case study in legal psychology, Hemel-Hempstead: HarvesterWheatsheaf, 1988, discussed in Bruce, V., and Young, A., In the Eye of the Beholder: the science of
face perception, Oxford: Oxford University Press, 1998, at pp.100-102. Demjanjuk’s conviction was
overturned on appeal and he was allowed to return to the U.S. from where he had been extradited.
Comparable research was conducted by a distinguished forensic psychologist commissioned by the
defence for the purposes of the subsequently abandoned appeal in the case of Abdel Baset Ali alMegrahi, the man convicted of planting a bomb on Pan American flight 103, which exploded over
Lockerbie in 1988: see David Canter, “Lockerbie: was this man’s memory reliable?” The Times,
October 26, 2009, and Canter, D., Youngs, D., and Hammond, L., Relating to the Appeal of Abdelbaset
Ali Mohmed Al Megrahi: With particular attention to the evidence of Mr Anthony Gauci, Huddersfield:
International Research Centre for Investigative Psychology, The University of Huddersfield, 2009
(available at www.davidcanter.com).
107
In Elson (1994) unreported, C.A. 94/0547/Y3, 27 May, two witnesses who attended an identification
had sat together in the waiting room and communicated with each other before the parade, in breach of
the code. See also Finley [1993] Crim.L.R. 50, C.A.
108
Annex A9.
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again, that is provided for by specific provision. By contrast the suspect is entitled
under the code to be legally representated 109 and representatives are entitled to be
present to observe the procedure. However, in the absence of any criteria it is
difficult to see what prevents the identification officer from allowing in
whomsoever he pleases. On the other hand, since the session is conducted in
private it is difficult to envisage some “unauthorised” person slipping in unnoticed
at the back of the room with the identification officer being powerless to eject such
a person. The measure is hardly necessary to enforce an eviction.
(20) Suspect not permitted to be present during a video identification session
By contrast with a live identification parade, in which the suspect’s presence is
essential, the suspect’s presence at a video identification would defeat the whole
purpose of the exercise. However, in losing no opportunity to state the obvious
Annex A provides that the suspect “may not be present when the images are shown
to the witness(es).110 There may, of course, be occasions when it will be necessary,
for example in cases of urgency, for the suspect to be present at the same time as
the witness in the general vicinity of the place where the witness is to view the
images, in order to inspect the selection beforehand.
Ensuring that the witness’s attention is not drawn to any individual
image or given any indication of the suspect’s identity
An obvious stricture lays down that “[c[are must be taken not to direct the
witness’s attention to any one individual image or give any indication of the
suspect’s identity.”111
(21)
(22)
Witnesses must not be reminded before or during the video identifycation procedure of any photograph or likeness from which they
previously made an identification of the suspect or of any description
previously given
The witness may previously have made an identification from a photograph, or
computerised or artist’s composite likeness, of a person who appears not to be the
suspect. Again, the witness may have given a previous description which is
significantly different from the suspect’s appearance. In such a case the suspect
would plainly have an interest in seeing that the witness is reminded of the
photograph, likeness or description immediately before embarking on the video
identification procedure. Such a reminder might well reinforce any disinclination
to identify a person resembling the suspect. However, after expressing the warning
against directing the witness’s attention to any one individual or giving any
indication of the suspect’s identity, Annex A.13 continues:
There is no explicit provision in Annex A but Annex A.7, A.8 and A.9 assume a solicitor’s
involvement: see Bogan, op, cit , para. 5.31, n.33.
110
Annex A.9.
111
Annex A.13.
109
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VIDEO IDENTIFICATION PARADES
“Where a witness has previously made an identification by photographs,
or a computerised or artist’s composite or similar likeness, the witness must
not be reminded of such a photograph or composite likeness once a suspect
is available for identification by other means in accordance with this Code.
Nor must the witness be reminded of any description of the suspect.”
Although the rule relates to the the position where the suspect has become
“available for identification by other means” it is assumed that the proscription
lasts until the conclusion of the witness’s participation in the identification
procedure, and in any event the paragraph comes under the section of the Annex
captioned “(b) Conducting the video identification.” 112 It is to be noted that the
rule in the final sentence against reminding the witness of a description of the
suspect is not confined to a description given by the witness.
It is easy to understand the purpose of the rule where the previously viewed
photograph or likeness, or a previous description given by the witness, matches the
suspect’s appearance. A prior reminder will be equivalent to self-prompting from a
previous statement, a form of leading question. However, the same cannot be said
where there is an obvious disparity. In such a case the rule might be seen to be
designed almost to suppress the disinhibition to commit an error. The mandatory
terms of A.13 are regrettable. If it were expressed in more advisory syntax
(“should not”) this would give identification officers some measure of latitude in
conceding a defence request for a reminder to be given. There is no leeway at all in
Annex A.13. However, there may be some amelioration furnished by Annex A.14,
which provides that “[a]fter the procedure, each witness shall be asked whether
they have seen any broadcast or published films or photographs, or any
descriptions of suspects relating to the offence and their reply shall be
recorded.”113 This might arguably be interpreted to embrace a description given by
the witness which was then made up into a record seen by the witness for the
purpose of validating it. So, if a witness makes a video identification and is then,
under A.14, shown a previous contrasting description given by “them” (to use the
politically correct if grammatically incorrect syntax of the new Codes) there is the
possibility that the witness will immediately resile from, or at any rate express
reservations about, the identification. The argument would not be available where
the previous description was given but then computer entered without being
thereupon visually checked by the witness. Solicitors should be prepared to ask
about the provenance of the record of an inconsistent description and, where
appropriate, urge identification officers to use A.14 in this way.
112
This would seem to be confirmed by reference to the contrasting provision in Annex A.14, below.
Emphasis supplied. It has been pointed out that under the 1995 edition the responsibility for asking
this question was curiously the responsibility of the investigating officer: see McKenzie, I., and Dunk,
P., “Identification parades: psychological and practical realities,” in Heaton-Armstrong, A., Shepherd,
E., and Wolchover, D. (eds.), Analysing Witness Testimony, London: Blackstone Press, 1999, pp 178193, at p.184.
113
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(23) Warning that the image of the person seen on a specified earlier occasion
may not be among those shown
(i) The rule
In order to minimise any perception of pressure on witnesses to make an
identification and to reduce the “relative judgment problem,” 114 Annex A imports
from identification parade procedure the warning, first recommended by Devlin 115
and incorporated into law by Turnbull116 that immediately before the images are
shown, the witness must be told that the person they saw on a specified earlier
occasion may, or may not, appear in the images they are shown.117
(ii) The suggested use of “blanks”
To reinforce the caution that the person whom the witness saw on the previous
occasion may or may not be among the images to be shown and to reduce the risk
of error resulting from a relative judgment approach it has been suggested that the
practice could be adopted, and written into the code, of presenting the witness with
two sets of images, one containing the suspect and the other, a “blank,” comprised
entirely of foils.118 A scheme (obviously for live parades) was originally proposed
by witnesses to the Royal Commission on Police Powers and Procedure as long
ago as 1929 but not endorsed by the Commissioners 119 and the Devlin Committee
similarly thought that the problem of psychological pressure was insufficiently
acute to demand such a measure. 120 If the first array were a blank set but the
witness made a choice it is argued that there should be no viewing permitted of the
second set containing the suspect’s image because the result of the first round
would indicate that the witness was prone to guessing.121 Conversely, if the suspect
did not choose any of the first, blank, set of images, he might feel under even more
pressure to identify someone in the second set (containing the suspect) than when
viewing only one.122
114
See eg ibid, p.187.
Report, paras. 5.63 and 8.16.
(1977) 63 Cr.App.R. 132.
117
Annex A.11.
118
Ibid., citing Wells, G., “How Adequate is Human Intuition for Judging Eyewitness Testimony?” in
G. Wells and E. Loftus (eds.) Eyewitness Testimony: Psychological Perspectives, Cambridge Univ.
Press 1984.
119
Report, para. 129, referring to evidence in response to Q.6322, et seq. The Commissioners judged
there were “certain obvious objections, particularly the difficulties already experienced in persuading
suitable persons to attend a parade.” C.H. Rolph commented that this in fact seemed the only objection
that could be called “obvious”: op. cit., p.43. See also Law Reform Commission of Canada, Pretrial
Eyewitness Identification Procedures, Criminal Law Series Paper, Law Reform Commission of
Canada, Ottawa, 1983, at pp.150-153.
120
Report, para. 5.57.
121
Roberts and Clover, [2002] Crim.L.R., p.886.
122
Devlin report, para. 5.57.
115
116
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(24) Statements of confidence: the question whether to request witnesses to
express their degree of certitude when participating in an identification
procedure
Recent research suggests that the expressed confidence of an eyewitness in court
may be more diagnostic of identification accuracy than psychologists had
previously believed.123 Further, other research suggests that confidence measured
before an attempted identification is not as predictive of accurate identification as
confidence measured immediately after the identification attempt,124 which it is
argued is one reason why it is good practice to take a clear ‘statement of
confidence’ from the witness immediately after the identification attempt and
before the formal procedure has ended.125 While Code D does not preclude the
taking of a statement of confidence after the identification procedure has been
concluded, the code procedure for conducting a video identification has been
criticised on the basis that the question of whether a witness can make a “positive
identification” does not allow a witness to express any degree of certainty crucially
during the procedure itself. 126 It is therefore suggested that although the witness
may have harboured such thoughts as “I’m fairly sure,” “it might well be number
four,” “it looks like him” or “it could be number three,” the form of the instruction
includes no cue for uttering them, with the result that a qualitative assessment of
the identification may be precluded. If the witness is not in fact asked any
qualitative question until trial, a considerable time later, slight misgivings at the
time may not be recalled, or an identification may be fortified by the subsequently
acquired knowledge of another identification of the same suspect. Again, the
witness may simply feel under pressure to express greater certainty before the jury,
especially if the prosecution is dependent on the identification.
Instead of using the formulation “positive identification” the idea has been
canvassed of using alternative questions such as one in open form as to how sure
the witness is, or a request to grade the degree of certainty in terms of whether the
See Lindsay, D. S., Read, J. D. and Sharma, K., “Accuracy and confidence in person identification:
The relationship is strong when witnessing conditions vary widely” (1998) 9 Psychological Science
215-218, and Sporer, S., Penrod, S., Read, D. and Cutler, B. L., “Choosing, confidence and accuracy: A
meta-analysis of the confidence-accuracy relations in eyewitness identification studies” (1995) 118
Psychological Bulletin 315-327, both cited in Valentine, T., “Forensic Facial Identification,” in
Witness Testimony: Psychological, Investigative and Evidential Perspectives, Oxford: OUP
forthcoming, para 17.53.
124
For a review of pre-identification confidence and accuracy see Cutler, B. L. & Penrod, S. D.,
“Forensically-relevant moderators of the relationship between eyewitness identification accuracy and
confidence” (1989) 74 Journal of Applied Psychology 650-652; for a review of post-identification
confidences and accuracy see Bothwell, R. K., Deffenbacher, K. A., and Brigham, J.C., “Correlations
of eyewitness accuracy and confidence: Optimality hypothesis revisited” (1987) 72 Journal of Applied
Psychology 691-695, all cited in Valentine “Forensic facial identification,” cited above Chapter 1,
n.10, para 17.54.
125
Ibid.
126
See eg Bogan, op. cit., para 5.56. The topic was originally discussed in depth in the Devlin report,
paras 5.58 to 5.62.
123
133
VISUAL IDENTIFICATION PROCEDURES UNDER PACE CODE D
person was possibly, probably or certainly the same person as previously seen. 127
Again, it has been suggested that the degree of confidence could be expressed in
terms of a numerical gradation scale of the kind used by scientific experts. 128
During the consultation process which preceded the code revision due to come into
force on 1 January, 2006, the Home Office was urged to amend Annex A by
introducing in effect a request for a statement of confidence. Thus, it was proposed
that use of the phrase “positive identification” should be reconsidered to allow for
degrees of certainty to be expressed and that witnesses should be asked to express
their degree of certainty on a scale of 1 to 10.129 Devlin had considered the
question “does anyone on the parade closely resemble the person you saw?” but
rejected it as liable to confuse some witnesses. 130 Possibly in ignorance of Devlin´s
authoritative view, it was also proposed to the Home Office that on failing to make
an identification the witness should be asked if anyone shown on the film was
similar to the person previously seen. 131 These proposals were rejected by the
Home Office on the ground that “the current wording is sufficient and the Codes
deliberately only allow for a positive identification because anything less than that
opens the potential to flawed identificiation.”
The undoubtedly sensitive analysis of the supposed inflexibility of the rule
reviewed above overlooks the plain wording of the requisite instruction, which is
that witnesses must be instructed
“that if they cannot make a positive identification, they should say so.” 132
This is a conventional linguistic form of encouragement to people to speak
their minds and not be afraid to express reservations. It is difficult to see why such
an exhortation will be insufficiently effective in eliciting such commonplace
phrases for expressing various degrees of reservation as those instanced above,
with any specific explanatory reasons (eg “the hair looks different, somehow”). In
contrast with the idea of using the three degrees of confidence referred to above or
the numerical scale, it is maintained nevertheless that the nuanced colloquialisms
liable to be elicited by the existing form of entreaty are more apt to express a range
of subtle variation, including at one extreme the negative assertion “none of those
shown,” than are the relatively inflexible three options or a 10-point gradation
scheme.
127
Bogan, para 5.56, noting that the procedure for group identification and showing photographs make
provision for a selection by a witness who is unable to confirm the identification, when the witness is
then asked how sure he or she is (Annexes C.23 and E.9, respectively).
128
Bogan, para 5.57.
129
Proposed by West Yorkshire Police and the Crown Prosecution Service: see schedule of
recommendations and responses posted on the relevant Home Office webpage. The gradation scale idea
is an adaptation of the scheme employed by scientific experts and may have been inspired by Bogan’s
treatment.
130
Report, paras. 5.58-5.62.
131
Proposed by Karl Burn, Identification Officer.
132
Annex A.11.
134
VIDEO IDENTIFICATION PARADES
Criticism has also been levelled at the code scheme for talking exclusively in
terms of positive identification rather than also in terms of positive exoneration of
the suspect, there being “little reason not to ask whether the witness can exclude
the persons viewed,” though it is conceded that such a direct challenge might
provoke a qualified identification.133 While it may be argued that the existing terms
of the instruction provide a reasonably effective means of prompting the witness
(if so minded) to exonerate the suspect without raising any such counterproductive risk, it has been usefully suggested that the code should require
witnesses to be cautioned that it is as important to clear innocent persons from
suspicion as it is to identify the guilty and that regardless of whether or not an
identification is made, the police will continue to investigate the incident. 134
(25) The difficult problem of whether to restrict witness scrutiny of the array
(i) Annex A provisions
Witnesses participating in a video identification procedure are shown the
moving images in numerical sequence. Annex A provides that the witnesses
should be asked not to make any decision as to whether the person they saw is on
the set of images until they have seen the whole set at least twice.135 Once they
have seen the whole set of images at least twice and have indicated that they do not
want to view the images, or any part of them, again, they shall be asked to say
whether the individual they saw in person on a specified earlier occasion has been
shown and, if so, to identify them by number of the image. 136 Witnesses will then
be shown that image to confirm the identification. There is no upper limit to the
number of viewings permissible, nor is there anything in the code to prevent
witnesses, after the initial two viewings, from being permitted on request to be
shown particular individuals from the array selectively or to switch repeatedly
between from one particular image and another. Moreover, witnesses must be
advised that at any point, they may ask to see a particular part of the set of images
or to have a particular image frozen for them to study and it should be pointed out
to the witness that there is no limit on how many times they can view the whole set
of images or any part of them.137
(ii) Argument that protracted scrutiny may cast doubt on accuracy
It has been argued that the requirement for the witness to look at the array of
images twice before making a decision “may represent an ongoing tendency of
those involved in the drafting of the Codes and so on, to use pop-psychology,
133
Bogan, op. cit., para. 5.58
Roberts and Clover, [2003] Crim.L.R., at p.887, citing a recommendation by the Technical Working
Group for Eyewitness Evidence of the U.S. Department of Justice Office of Justice Programmes,
Eyewitness Evidence: A Guide for Law Enforcement, National Institute of Justice, Washington D.C.,
1999.
135
Annex A.11.
136
Annex A.12.
137
Annex A.11
134
135
VISUAL IDENTIFICATION PROCEDURES UNDER PACE CODE D
rather than research, to inform their drafting.” 138 Whether or not there is any
conscious element here of “pop-psychology,” the requirement certainly appears to
reflect an assumption that the more care the witness takes in scrutinising the array
the more likely will it be that the eventual choice is accurate. Yet studies of
witness accuracy139 argue against such conventional wisdom, tending to urge
instead that

faces are represented as “holistic gestalts,” that is, the face is
viewed as a whole structure rather than concentrating on
individual features and that identification may involve an
immediate and automatic matching between a stored gestalt and
the external stimulus face;

accurate witnesses tend not to be able to give a specific reason
for their choice;

successful facial identification is unlikely to require much
reflective thought;

accurate witnesses take significantly less time to identify
someone than those who were inaccurate. 140
The notion that since human faces are essentially similar our possession of the
faculty of instantly distinguishing the multitude of details which go to make up
each face must be based somehow on an innate ability to assimilate the totality of
the image was aptly described in a nineteenth century discourse which
foreshadowed research undertaken a century later:
“The difference in human features must be reckoned great, inasmuch as
they enable us to distinguish a single known face among those of thousands
138
McKenzie and Dunk, cited above Chapter 1, n.6, at pp.187-188.
See eg Stern, L.B., and Dunning, D., “Distinguishing accurate from inaccurate eyewitness
identifications: a reality monitoring approach,” in Ross et al (eds.), Adult Eyewitness Testimony, cited
above Chapter 1, at n.64, pp.144-160; McKenzie and Dunk, cited above Chapter 1, n.6, pp.187-188;
Deffenbacher, K.A., Forensic Facial Memory: Time is of the Essence, New York: Elsevier Science
Publishers, 1989. For a general study on the science of face perception with a comprehensive
bibliography see Bruce, V. and Young, A., In the Eye of the Beholder, Oxford University Press, 1998,
and see also e.g. Laughery, K., Alexander, J. and Lane, A. “Recognition of human faces: Effects of
target exposure, target position, pose position and type of photograph,” (1971) 55 Journal of Applied
Psychology 1159-1164; Bruce, V., “Changing faces: Visual and non-visual coding processes in facial
recognition,” (1982) 12 British Journal of Psychology 284-309; Valentine, T. and Bruce V., “The
effects of distinctiveness in recognising and classifying faces,” (1986) 15 Perception 525-535;
Valentine, T., “A unified account of the effects of distinctiveness, inversion and race in face
recognition,” (1991) 43A Quarterly Journal of Experimental Psychology, 161-204; Shepherd, J.W.,
Gibling, E. and Ellis, H.D. ‘The effects of distinctiveness, presentation time and delay on face
recognition,” (1991) 3 European Journal of Cognitive Psychology 137-145.
140
See in particular Valentine, T., Pickering, A. and Darling, S., “Characteristics of eyewitness
identification that predict the outcome of real lineups” (2003) 17 Applied Cognitive Psychology 969993.
139
136
VIDEO IDENTIFICATION PARADES
of strangers, though they are mostly too minute for measurement. At the
same time, they are exceedingly numerous. The general expression of a
face is the sum of a multitude of small details, which are viewed in such
rapid succession that we seem to perceive them all at a single glance. If any
one of them disagrees with the recollected traits of a known face, the eye is
quick at observing it, and it dwells upon the difference. One small
discordance overweighs a multitude of similarities and suggests a general
unlikeness.” 141
(iii) Simultaneous versus sequential viewing: will repeated viewings encourage a
relative judgment process with the consequent heightened risk of error?
When a line of people are paraded together in front of a witness for the
purposes of identification it is assumed that the witness will scrutinise the array by
focusing on each person in turn. In England the live identification parade
originally involved the witness walking along the line of participants at close
quarters and then touching the shoulder of any person picked out. The physical act
of walking along the parade lent it some of the characteristics of a sequential
presentation although the opportunity to switch focus instantaneously from one
face to another, particularly before and after what amounted to a close-up militarystyle inspection, essentially defined the procedure as a simultaenous viewing of the
array. In its final form the live parade was viewed by the witness at a distance
from behind a two-way mirror (with signification orally by number), so that a
more global view of the array was facilitated (at the same time as removing the
risk of feedback cues from the suspect and disabling eye contact avoidance). In
contrast, video identification involves the showing of the images of the participants
in sequence, although switching from image to image on the screen at the
witness´s request is permissible and capable, with DVD, of being very rapid. It has
been suggested that simultaneous presentation, as in a traditional parade,
encourages witnesses to engage in a relative judgment process, comparing each
person in the line against the others and selecting the one most closely resembling
the trace memory of the culprit; in contrast, sequential presentation of the suspect
and foils in the showing of a series of video clips tends to engage the witness in an
absolute judgment process, comparing each image as it is shown with the memory
of the culprit.142 There is a notion that the relative judgment process induced by
141
Galton, F., Inquiries into human faculty and its development, London: Macmillan, 1883, p.3, cited
by Bruce and Young, above at n.139, p.151. For experimental research strongly suggesting that facial
perception is based on the whole rather than on individual unconnected features see Young, A.W.,
Hellawell, D.L. and Hay, D.C., “Configural information in face perception,” (1987) 16 Perception,
747-759, and Tanaka, J.W. and Farah, M.J., “Parts and and wholes in face recognition,” (1993) 46A
Quarterly Journal of Experimental Psychology 225-245, both summarised by Bruce and Young, cited
above at n.139, pp.153-154.
142
See Lindsay, R. and Wells, G., “Improving Eyewitness Identifications From Lineups: Simultaneous
Versus Sequential Lineup Presentation,” (1985) 70 Journal of Applied Psychology 556; Shapiro, P.N.,
and Penrod, S., “Meta-analysis of facial identification studies,” (1986) 100 Psychological Bulletin, 139156; Cutler, B., and Penrod, S., “Improving the Reliability of Eyewitness Identification: Lineup
137
VISUAL IDENTIFICATION PROCEDURES UNDER PACE CODE D
simultaneous presentation occasions a tendency to error143 particularly when it is
compounded by the witness’s assumption that the person whom the police already
believe to be the culprit is on the parade, in the light of which “a passing likeness
can become a positive identity.”144 Indeed, many studies have shown that when the
culprit is absent from the array sequential presentation is significantly less prone
than the simultaneous kind to result in mistaken identifications although when the
culprit is included in the array the results indicate at least comparable accuracy or
even that simultaneous presentation may lead to greater accuracy. 145 However,
Construction and Presentation,” (1988) 73 Journal of Applied Psychology 281; Slater, A., Identification
parades: A scientific evaluation, London: Home Office, 1994; Cutler, B. and Penrod, S., Mistaken
Identification: The Eyewitness, Psychology and the Law, Cambridge: Cambridge Univ. Press, 1995;
Pike, G., Kemp, R., Brace, N., Allen, J. and Rowlands, G., “The effectiveness of video identification
parades’ (2000) 8(1) Proceedings of the British Psychological Society, 44; Online Conference Report
on the British Association Annual Festival of Science, September 2001, reported on the New Scientist
web site; Stebley, N., et al., “Eyewitness Accuracy Rates in Sequential and Simultaneous Lineup
Presentations: A Meta-Analytical Comparison” (2001) 25 Law and Human Behaviour 459. Pike, G.,
Brace, N. and Kynan, S., The Visual Identification of Suspects: Procedures and Practice, Briefing Note
2/02, London: Home Office, 2002; Roberts and Clover, cited above in Chapter 2, n.75.
143
See Kneller, W., Memon, A. And Stevenage, S., “Simultaneous and sequential lineups: decision
processes of accurate and inaccurate witnesses,” (2001) 15 Applied Cognitive Psychology 659-671;
Gronland, S.D., “Sequential lineups: shift in criterion or decision strategy?” (2004) 89 Journal of
Applied Psychology 362-368, both cited by Valentine, “Forensic Facial Identification,” cited above in
Chapter 1, n.10, chap. 17.
144
Rolph, C.H., Personal Identity, London: Michael Joseph, 1957, p.42. As early as 1929 it was
recognised by the Royal Commission on Police Powers and Procedure that some witnesses might tend
“unconsciously to identify the person who most resembles their recollection of the culprit, disregarding
apparently the alternative that he may not be present at all”: Report, Cmd. 3297, para.124.
145
Valentine, “Forensic Facial Identification,” (above, Chapter 1, n.10) cites a study of 23 papers
comparing sequential and simultaneous presentation of photograph lineups: Stebley, N., Dysart, J.,
Fulero, S. and Lindsay, R.C.L., “Eyewitness Accuracy Rates in Sequential and Simultaneous Lineup
Presentations: A Meta-Analytical Comparison” (2001) 25 Law and Human Behaviour 459. In the
aggregate, more witnesses identified the culprit from simultaneously presented arrays than from
sequential ones (50 to 35 pc) but fewer made incorrect rejections of culprit-present simultaenous ones
than of sequential ones (26 to 46 pc). Culprit-absent arrays: more witnesses made correct rejections of
sequential than of simultaneous ones (79 to 49 pc) but fewer made incorrect identifications of a foil in
sequential than in simultaneous arrays (28 to 51 pc). The overall effect of sequential presentation was to
provide more protection against mistaken identification from culprit-absent arrays but at a cost to the
sensitivity of culprit-present procedure, a finding supported by subsequent studies cited by Valentine:
Memon, A. and Bartlett, J.C., “The effects of verbalisation on face recognition” (2002) 16 Applied
Cognitive Psychology 635-650; Memon, A. and Gabbert, F., “Unravelling the effects of a sequential
lineup” (2003) 6 Applied Cognitive Psychology 703-714; Memon, A. and Gabbert, F. “Improving the
identification accuracy of senior witnesses: Do pre-lineup questions and sequential testing help?”
(2003) 88 Journal of Applied Psychology 341-347. See also Valentine T. and Heaton, P., “An
evaluation of the fairness of police lineups and video identifications” (1999) 13 Applied Cognitive
Psychology S59-S72 (mock witnesses who had read the witness’s description of the suspect
misidentified the suspect significantly less frequently in a video array than in a simulated live parade
when the true culprit was not present; on average they picked out the suspect from a picture of a live
parade 25 per cent of the time, a figure more than double the 11 per cent expected by chance, whereas
in a video line-up the suspect was chosen in only 15 per cent of the sample); Lindsay, R. and Wells, G.,
“Improving Eyewitness Identifications From Lineups: Simultaneous Versus Sequential Lineup
Presentation,” (1985) 70 Journal of Applied Psychology 556, and see Online Conference Report on the
British Association Annual Festival of Science, September 2001, reported on the New Scientist web
138
VIDEO IDENTIFICATION PARADES
reference must be made to the results of other research suggesting that
simultaneous presentation may be more reliable overall than sequential. 146
Although more akin to a sequential presentation than the old live form of
parade (and certainly lending itself to a pure sequential procedure) the PACE
provision for at least two viewings of the array before a decision is voiced plainly
differs from a pure sequential presentation. The latter would involve instructing the
witness to make a decision on each participant in the compilation immediately
after viewing that person, with no initial run-through. It has been argued that with
the absence in Annex A of any restriction on the number of times that witnesses
are permitted to view the complete set of images, the more will witnesses
scrutinise a set of images, and so the more will they tend to compare the individual
images with each other and engage in a relative judgment process with the
attendant risk of higher rates of false identification. 147 It is not clear how far this
prediction is sustainable in the light of results from recent research which indicate
no significant reduction in mistaken identifications using pure sequential viewing
instructions (decision to be made after viewing each participant) with culpritabsent video parades but a significant reduction in correct identifications using
such instructions with culprit-present video parades.148 The relatively greater
suppression of correct identifications over that of incorrect ones with pure
sequential presentation as against standard PACE procedure may tell against the
introduction of sequential instructions and viewing restrictions. Another, earlier,
study suggests that there may be no basis for predicting a diminution of accuracy
with increased viewing; indeed, quite the contrary. 149 The participants were asked
to view a staged crime, and four weeks later they viewed either a target absent or
target present video identification-style parade. One third of participants saw the
parade once, one third saw it twice and the final third saw it twice before being
allowed to rewind the tape as they chose. For target present parades, performance
improved with additional viewing of the parade, and for the target absent parades,
the participants who were allowed to rewind the tape at will were more accurate in
their decision than the participants who saw the parade once or twice. These results
are not wholly consistent with those of Lindsay and others, who reported no
change in decisions made after the first and second viewing of a sequential
site. For comparable accuracy results in culprit-present arrays see, e.g., Cutler B.L., et al., “Eyewitness
Identification Test Media,” in Ross, D.F., Read, J.D. and Toglia, M.P. (eds.) Adult Eyewitness
Testimony: Current Trends and Developments, Cambridge: Cambridge Univ. Press, 1994.
146
A review of research findings led the Law Commission of New Zealand to conclude that procedures
using live subjects produced more reliable results than those using video recordings: Total Recall? The
Reliability of Witness Testimony Evidence, Miscellaneous Paper 13, Wellington: LCNZ, 1999.
147
See Roberts and Clover (cited in Chapter 2, n.75) at p.886. See also Lindsay, R., Lee, J., and Fulford
J., “Sequential Lineup Presentation: Technique Matters” (1991) 76 Journal of Applied Psychology 741.
148
Valentine, T., Darling, S. and Memon, A. “Do sequential viewing instructions and moving images
increase the reliability of police video identification procedures” (in preparation at time of citation by
Valentine, “Forensic Facial Identification,” above, Chapter 1, n.10, para. 16-40).
149
Pike, G., Rowlands, G., Towell, N. and Kemp, R. “Video identification and simultaneous vs.
sequential lineups,” paper presented at the first joint conference in Dublin in 1999 of the American
Psychology-Law Society and the European Association of Psychology and Law.
139
VISUAL IDENTIFICATION PROCEDURES UNDER PACE CODE D
parade.150 However, it seems that repeated viewing of sequential parades does not
necessarily undermine the advantage of the video identification method, in
comparison with simultaneous parades.151
(iv) Restriction on number of viewings?
Taking all the theoretical and empirical factors reviewed above into account is
there a case for changing the current Annex A provisions on viewing the video
parade? Should pure sequential instructions be introduced? If not that, should
restrictions be imposed on the number of viewings of the array to be allowed
witnesses? It has been suggested that the alleged adverse effects of repeated
viewing of the array of images can be prevented by permitting witnesses to view
the images no more than twice.152 Should a limit be imposed on the time to be
permitted the witness to scrutinise particular faces, whether by replaying the
moving sequence of that person of by way of examining a still frame of the face?
Roaming freely among the images may well facilitate comparison between them
rather than between each and the trace memory of the person originally seen (the
“culprit”). Is there a greater danger of miscarriage from the resultant relative
judgment process than there would be of the suppression of what might otherwise
be a reliable identification if restrictions were imposed? It would have to be
demonstrated on the basis of the theoretical considerations considered here
combined with the totality of the available research findings that the risk of
miscarriage so outweighed that of suppressing reliable identifications through the
imposition of restrictions that the case for such restrictions became strong enough
to overcome the undoubted axiom of received wisdom that more scrutiny means
more accuracy. The combination of theory and empirical evidence seems
inconclusive.
(v) Possible impact of exhortation to examine images without limit 153
Apart from the reliability issue, the absence of any restriction in Annex A on
the number of times the array of images may be viewed may have another adverse
effect. It may be interpreted by the police as a licence to encourage witnesses to
proliferate the number of repeats and, although Annex A.11 requires witnesses to
be warned that the culprit may, or may not, appear in the images they are to be
shown, this may in turn induce an assumption that the police believe the culprit to
be present. The consequence may be that the witness will feel under pressure and
be more inclined to make a guess.
150
Lindsay, et al (1991) cited above at n.147, pp.741-745.
Kemp, R., Pike, G., and Brace, N., “Video-based identification procedures: Combining best practice
and practical requirements when designing identification systems,” Psychology, Public Policy, and
Law, December 2001. See also Thomson, D.M., “Eyewitness testimony and identification tests,” in
Brewer, N., and Wilson, C. (eds.) Psychology and Policing, Hillsdale, New Jersey: Lawrence Erlbaum
Associates, 1995, pp. 119-154.
152
Roberts and Clover (cited in Chapter 2, n.75) at p.886.
153
Ibid.
151
140
VIDEO IDENTIFICATION PARADES
(vi) Impact of research on trial process
Where a witness has taken a noticeably long time to make an identification, it
may be feasible to prevail on at least some judges to allow in expert evidence
expounding a combination of theoretical considerations and those research results
which establish a negative correlation between length of scrutiny and accuracy,
since these findings clearly controvert conventional wisdom, or “common sense.”
(26) Preventing reinforcement feedback which may happen when
identification witnesses are informed that they have picked out the suspect
A significant shortcoming in the Code which may need to be redressed in any
future revision is that it imposes no prohibition on witnesses being told that they
have either identified the suspect or have failed to do so. It has been argued that
there is a danger in such confirmation that a witness who may have harboured
some doubt could feel fortified in an initially tentative identification. The process
of such reinforcement of confidence has been described as “bolstering” or “firming
up.”154 Such a contention appears to be supported by research demonstrating not
only that receiving feedback that the suspect has been identified, or that another
witness has made the same identification, will increase the witness´s confidence in
their identification, but also that it may inflate a range of assertions tending to
enhance the professed reliability of the original sighting, for example, its duration,
the quality of lighting conditions, the proximity of the suspect to the witness, the
witness´s attentiveness, and so forth. 155 Other research demonstrates that postidentification feedback tends to make eyewitnesses over-confident, expressing
more certainty in their identification than may be merited. 156
It has also been suggested that informing witnesses of a failure to identify the
suspect may induce them to adjust their evidence, although how exactly is not
explained.157 It is assumed that what is meant by “adjustment” in this prognosis is
the danger that a witness who thinks he may have recognised the person but says
nothing out of a punctilious regard for fairness and propriety may feel less
inhibited about implicating the person he thinks he may have recognised once he
receives confirmation that the suspect was among the images depicted (whether or
not he is told at which number the suspect appeared in the array).
The Court of Appeal have advised that a witness ought not to be told that the
person picked out was the suspect until after making a statement about the
154
Originally described by Loftus, E., Eyewitness Testimony, Harvard, Conn: Harvard University Press,
1979, chap. 1, instancing in particular the notorious Sacco and Vanzetti case in the United States in
1920.
155
Wells, G.L. and Bradfield, A.L., “ ‘Good you identified the suspect’: feedback to eyewitnesses
distort their reports of the witnessing experience” (1998) 66 Journal of Applied Psychology, 688-696,
cited para 17.50 above.
156
Semmler, C., Brewer, N. And Wells, G.L., “Effects of postidentificaiton feedback on eyewitness
identification and nonidentification confidence” (2004) Journal of Applied Psychology, 334-346, cited
ibid.
157
Bogan, op. cit., para 5.47.
141
VISUAL IDENTIFICATION PROCEDURES UNDER PACE CODE D
parade.158 This will prevent a suspiciously rapid process of firming up between
the identification procedure and the making of the routine statement which is
usually taken immediately afterwards. However, it is difficult to see what
significant protection it will offer against potentially much more insidious longterm bolstering of a tentative recognition as a result of being told subsequently to
the making of a statement that the right person was picked out. Thus, it has been
persuasively argued159 that the principle of non-disclosure ought to be maintained
right up to trial
“[F]airness to the suspect surely requires that the witness be not told at
any time before trial whether the person identified was the suspect, unless
there is a particular reason for doing so. The reality is that any witness is
going to be fortified in a belief as to the correctness of the identification by
being given such information. It is no answer to say that, if the witness says
in a post-parade statement, ‘I think it was the person I identified, but I am
not entirely sure’ and at trial says ‘I am in fact 100% sure,’ the evidence at
trial may be undermined by cross-examination on the previous statement. It
is notorious that honest but mistaken identification witnesses can be
convincing. If the witness says that he has given it considerable thought,
and has in consequence become sure, this may be extremely plausible. This
may be so even if the jury are informed of the fact that the witness has been
told that the suspect was the person identified.”
It has been reported that in the light of pronouncements by a number of Crown
Court judges the policy has been adopted in some police areas (including, notably
Kent) of not confirming or denying the accuracy of any identification made by a
witness.160 This local practice ought to be incorporated in the Code as a provision.
As the prevention of secret approaches to a witness would be virtually impossible
to enforce it may be worth considering whether to introduce a routine practice of
withholding the details of the procedure and of the witness´s performance from
officers involved in the investigation, even from the officer in the case. The details
would be confidential to the supervising identification officer and the Crown
Prosecution Service.
(27) Preventing non-vocal cues during the identification process
The process of reinforcement referred to in the last section may conceivably take
place during the identification procedure itself, with the supervising officer
indicating or signalling to the witness that a tentative identification had indeed
been correct. This may be conveyed in speech or by some other vocal cue (a cough
158
R v Willoughby [1999] 2 Cr. App.R. 82.
See Richardson, P.J., commentary on ibid in Criminal Law Week, CLW/99/25/04.
160
See McKenzie, I., and Dunk, P., “Identification parades: psychological and practical realities,” in
Heaton-Armstrong, A., Shepherd, E., and Wolchover, D. (eds.), Analysing Witness Testimony, London:
Blackstone Press, 1999, 178-193, at p.190.
159
142
VIDEO IDENTIFICATION PARADES
or grunt) or by a non-vocal cue (the raising of an eyebrow or a head tilt) or by a
combination. Non-verbal and non-vocal cues may also induce the witness to assert
an identification in the first instance, expressed either with certainty or tentatively.
Audio recording of the procedure will pick up vocal cues, but only comprehensive
video monitoring of the whole procedure, with the positioning of multiple high
definition cameras in the room will furnish direct evidence of non-vocal ones.
While identification procedure administrators can be deterred from giving
conscious signals by the presence of the suspect´s legal representative or by the
installation of video/audio monitoring such safeguards will not preclude
unconscious ones or those which might be given at a “dead” point out of view of
the cameras or when the suspect´s representative, if present, is not looking.
Comprehensive video monitoring of the room could be combined with the current
best practice use of the random selection by the witness of one from a number of
DVDs each with the suspect shown in a different position in the array, and the use
of twin back-to-back monitors, one for the witness and the other for the operator
(and the suspect’s legal representative, if present) showing only the number
identifying the position in the array being presented. 161 It has already been
mentioned162 that as an added safeguard Code D could be amended to require that
the officer or member of police civilian staff taking the witness through the array
(not the identification officer in overall charge of the operation) should be unaware
of the identity and appearance of the suspect. The legal representative should also
not know in which position the suspect appears on the array, to avoid any
possibility of an unconscious cue coming from that source (such as the drawing in
of breath).
C. DOCUMENTATION AND VALIDATION
(1) Written records
A record of the conduct of the video identification must be made on forms
provided for the purpose.163 In particular, a record must be made of all those
participating in, or seeing, the set of images whose names are known to the
police.164 It must include anything said by the witness about any identifications or
the conduct of the procedure and any reasons it was not practicable to comply with
any of the provisions of Code D governing the conduct of video identifications.165
If identical conditions for each image are not practicable the reasonmust be noted
on the form.166 If the suspect or legal representative raises any objections to the
array which cannot be met, they should also be recorded together with the reasons
why they were not met.167
See Valentine, “Forensic facial identification,”, cited above in Chapter 1, n.10, para 17.79.
See p.107, above.
163
D3.24 and Annex A.18. A specimen form is set out in Bogan, op. cit., Appendix C.
164
Annex A.17.
165
Annex A.18.
166
Annex A.4.
167
Annex A.7.
161
162
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VISUAL IDENTIFICATION PROCEDURES UNDER PACE CODE D
(2) Image security
Arrangements must be made for all relevant material containing set of images used
for specific identification procedures to be kept securely and their movements
accounted for.168 They will therefore be available for later examination by the
parties and for court use. (It has already been mentioned that no one involved in
the investigation shall be permitted to view the material prior to it being shown to
any witness.169)
(3) Image destruction
Unless the suspect is charged, prosecuted, cautioned, warned reprimanded or if the
suspect gives consent to its retention, the images of the suspect must be destroyed
save where necessary to retain it pursuant to the Criminal Procedure and
Investigations Act 1996.170
(4) A flaw in the validation requirements for video identification
(i) Live parades
It is a key component of any reliable identification procedure that an
unassailable record be maintained of the behaviour and reactions of the witness to
the live participants of a parade or to video images as they are displayed. Written
records are subjective, prone to error and can hardly convey the full flavour of the
events they describe. Still photography of the volunteers to a live parade can of
course provide a record for assessing resemblance to the suspect (although the
Devlin Committee thought it might be deceptive as to colour 171) but can hardly
furnish a record of the witness’s behaviour. The obvious solution lies in
technology but without explanation the Devlin Committee believed that a “ciné
film” would not be as valuable as a still photograph.172 The original edition of
Code D required a video or photograph of the parade where it was held without a
solicitor or friend of the suspect being present but, following a recommendation of
the Royal Commission on Criminal Justice, 173 the qualification was removed from
the 1995 revision and it became mandatory to take a colour photograph or to
video-record the parade. In the 2003 version the rule has been refined still further
and now provides that a video film of a live parade must be made unless it is
impracticable, in which case a colour photograph must be taken. 174
(ii) The fundamental flaw
A serious flaw of video identification is that Annex A provides, inter alia
168
Annex A.15.
Ibid.
170
Annex A.16, and see D3.30 to D3.33. The detail is beyond the scope of this monograph.
171
Report, para. 5.47.
172
ibid.
173
Report, Cm. 2263, July 1993, Recommendation No. 6, para. 10.
174
Annex B.23.
169
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VIDEO IDENTIFICATION PARADES
“The suspect’s solicitor, if practicable, shall be given reasonable
notification of the time and place the video identification is to be
conducted so a representative may attend on behalf of the suspect. If a
solicitor has not been instructed, this information shall be given to the
suspect. The suspect may not be present when the images are shown to
the witness(es). In the absence of the suspect´s representative, the viewing
itself shall be recorded on video. No unauthorised people may be
present.”175
The words in emphasis stand in stark contrast to the new mandatory requirement
for live identification parades. The qualification for video identification is the same
as the pre-1995 rule for live parades. It is not apparent why it should be stuck in a
time-warp. It is probable the lacuna was unintentional. It has been noted that some
constabularies make a video recording of the identification as a matter of
routine.176 Ideally, the record for case preparation and court presentation will
consist of a split screen in which the images are shown and the witness’s viewing
of them are recorded and displayed simultaneously. 177
Where the viewing is not routinely recorded in all cases irrespective of the
presence or absence of a legal representative the only way for the suspect to ensure
that the procedure is video-recorded is to instruct the solicitor to stay away from
the procedure.178 It is inconceivable that the rule was designed to force a choice
between having a solicitor or a video-recording. After all, a mounted camera is no
guarantee against surreptitious or unconscious signalling, which an eagle-eyed
defence representative in attendance might very well pick up.
(iii) Illustration of the importance of video identification being itself videorecorded
It has been suggested that unless professionally produced with discreetly
positioned cameras, video recording of the video identification procedure would
175
Annex A.9, emphasis supplied. It has been noted by Bogan, op. cit., at para. 5.31., n.33, that Annex
A contains no express provision for legal representation corresponding to that in Annex B.1 for
identification parades but that D3.17(iii) requires notification to the suspect of the right to legal advice
and Annex A.7, A.8 and A.9 assume a solicitor’s involvement. Since the suspect has no right to be
present when the images are shown to the witness the purpose of notifying the unrepresented suspect of
the time and place is to enable a solicitor to attend if one is duly instructed: see Bogan, at para. 5.31.
Bogan postulates the example of a critically ill witness where, exceptionally, it may be impracticable to
give the solicitor reasonable notification: ibid. However, even though the solicitor’s role is to assist in
the assessment of the suitability of the images as well as observing the conduct of the identification
procedure itself and given even the rapidity with which a video identification can be arranged (as to
which see infra), it is difficult to envisage a situation in which no duty solicitor could be found in the
time it would take to set up a video identification, however urgent.
176
Bogan, op. cit., para. 5.54.
177
Ibid.
178
In Elson (1994) unreported C.A. 94/0547/Y3, 27 May, the foils bore so little resemblance to the
defendant that the solicitor’s clerk took the view that a photograph was desirable and he stayed away
from the parade in order to ensure that a photograph was taken in accordance with the code. In the
event no camera was forthcoming.
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VISUAL IDENTIFICATION PROCEDURES UNDER PACE CODE D
probably not be of sufficient quality to be of real value, would not reduce the
number of identification errors, and might inhibit witnesses from making an
identification if they knew they were being filmed. 179 Lest it be thought that too
much is being made here of the need to have the procedure video-recorded where a
solicitor is present, it must be stressed that its importance is not to be
underestimated. This can be demonstrated with a dramatic illustration from the
author’s own practice. The defendant was accused of being one of two men
involved in a road rage attack. Suspicion originally focused on him after the
registration number of the assailants’ lorry was traced to his cousin, with whom he
was believed to work in scrap metal dealing and he was arrested in the gaoler’s
office at a magistrates’ court where he was being released on bail in connection
with another unrelated case. On being arrested he was asked a number of questions
about the incident and allegedly made incriminating replies. These he subsequently
denied making, refusing to verify the officers’ notes of arrest. In any event the
questions should not have been asked because, being under arrest, he was not in a
lawful place of detention for PACE purposes and in any event the questions should
only have been asked on tape.180 In the presence of his solicitor he was put up on
an identification parade, which was video-taped, chose position number 6, and the
committal statements disclosed that the witness said “I’m not sure, but I think it’s
number six.” The defendant was charged and released on bail, but went on the run.
Two years later he was re-arrested. The video of the parade had been mislaid. At
the plea and directions hearing the judge was told that it was proposed to seek the
exclusion of the alleged admissions and further to argue that the witness’s
assertion was equivocal and incapable of sustaining a case to answer. His response
was that there was Court of Appeal sanction for the sufficiency of the assertion
although he did not specify the authority. 181 The Crown undertook to make every
effort to trace the video-cassette of the parade and eventually it surfaced. It
revealed that the witness had not in fact said “I think it’s number six.” What he had
actually said was “I think it’s number seven.” However, the identification officer
apparently misheard the defendant perhaps he was unconsciously predisposed to
hear the witness identify number six, the defendantand he repeated aloud as he
wrote down the remark “I think it’s number six.” The witness made no comment.
At a renewed directions hearing the same judge observed, provocatively, that as
the witness did not demur from the officer’s “repetition” he could be said to have
Wells, G.L., Small, M., Penrod, S., Malpass, R., Fulero, S. and Brimacombe, C., “Eyewitness
identification procedures: Recommendations for lineups and photospreads,” (1998) 22 Law and Human
Behaviour, pp.603-647. For a view favouring video validation see Kassin, S.M., “Eyewitness
identification procedures: The fifth rule,” ibid., pp.649-653.
180
PACE Code C11.1.
181
It is assumed he was thinking of Birch, Bryant and Crowley (1992) unreported C.A. 90/0947/Z3,
judgment March 10; see Butterworth’s PACE casebook, VIII, para. [930], in which it was held that the
qualification of an identification by the words “I think” was a question for the jury. For the
admissibility of qualified identifications see below Chapter 5.
179
146
VIDEO IDENTIFICATION PARADES
adopted it as a “correction.” Fortunately, prosecuting counsel furnished a very
strong advice which the CPS eventually accepted.182
The witness’s actual remark had been missed by the defendant’s legal
representative. It was only the video which picked it up. This, then, underscores
the singular importance of video monitoring, or at the very least an audiorecording of the proceedings even where a solicitor is present.
(iii) Options open to solicitors on validation
(a) Requesting the identification officer to video-record the procedure with a
solicitor present Although Code D, Annex A.9, only makes a video-recording of
the video identification procedure mandatory in the absence of a solicitor’s
representative, this would not preclude the Identification Officer from agreeing
that a video recording should be made of the procedure. After all, the facility exists
for cases where the solicitor does not attend and a solicitor who is proposing to
attend should press for the facility to be used even though Code D does not require
this. If the request is denied the solicitor could always attend and could make an
audio-tape of what was said. Whether this should be done openly or whether
covertly to avoid the risk of an objection from the Identification Officer would be
for the solicitor to decide. A solicitor might choose to bring along a camcorder but
the identification officer might conceivably refuse to allow it to be used, perhaps
on the ground that it would intimidate or inhibit the witness.
(b) Objecting to video identification where video-recording request is declined
What if the solicitor (on instructions) objects to a video-identification on the
grounds that the police are insisting on sticking to the letter of Annex A.9, and are
refusing to make a video-recording of the procedure if the representative is to be
present? D3.15 provides
“A suspect who refuses the identification procedure first offered shall
be asked to state their reason for refusing and may get advice from their
182
However, this was not before the defendant had gone on trial for another very serious indictment in
which the fact that he had been wanted on warrant in the present case featured as a prominent aspect of
the evidence in that trial. Because he was yet to be tried on the present indictment he was not permitted
by the judge to state that he intended pleading Not Guilty in respect of it. In the event, he was acquitted
on that other matter. The case was Maughan (Bernard), Wood Green Crown Court Indictment No. T98
0680. The present author has retained the video tape and the case papers, including the correspondence
with the CPS complaining of the unconscionable delay before the prosecution was finally dropped. In
Willoughby [1999] 2 Cr.App.R. 82, C.A.; CLW/99/25/4 (5 July, 1999), decided some months after the
Wood Green case the witness on an identification parade said “It’s number 4, I think, it might be
number 3” but subsequently made a statement saying she was sure that it was number 3. Held, the judge
had been entitled to exercise his discretion to admit the evidence, having conducted a voir dire and
having been satisfied that nothing had been said or done to prompt or encourage the change. However,
it was desirable that wherever there was any significant difference in what was said on the parade and
what is said in a subsequent statement, the suspect and his solicitor should be informed of this as soon
as possible. Further, it was desirable that a witness should not be told whether the person picked out
was the suspect until after the witness had reduced to writing his or her account of the parade.
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VISUAL IDENTIFICATION PROCEDURES UNDER PACE CODE D
solicitor and/or appropriate adult. The suspect, solicitor and/or
appropriate adult shall be allowed to make representations about why
another procedure should be used. A record should be made of the
reasons for refusal and any representations made. After considering any
reasons given, and representations made, the identification officer shall, if
appropriate, arrange for the suspect to be offered an alternative which the
officer considers suitable and practicable. If the officer decides it is not
suitable and practicable to offer an alternative procedure, the reasons for
that decision shall be recorded.”
Where the suspect’s solicitor requests a live identification parade on the grounds
that this is the only way to ensure that a video record is kept of the procedure if the
solicitor is to be present it is likely that if the Identification Officer has been so
obtuse as to refuse to have the video identification video-recorded the officer will
very likely refuse a request for a live parade as an alternative. In obvious contrast
with a live parade, a video identification does not require the suspect’s consent or
co-operation. If the alternative of a live parade is refused by the police the suspect
may choose not to co-operate in the video identification procedure.
(iv) Ending the suspect’s right to have a solicitor present at the video
identification
The Home Office Consultation Paper Modernising Police Powers: Review
of the Police and Criminal Evidence Act (PACE) 1984, published in March 2007,
contains three paragraphs (3.39 to 3.41) inviting submissions in respect of the
question whether the suspect’s absolute right to have a solicitor in attendance when
witnesses participate in a video dentification should be removed:
“3.39 Currently, PACE Code D stipulates that the suspect must be given
a reasonable opportunity to have a solicitor or friend present at the time
and place a victim or witness is asked to make a video identification. This
is known to have an adverse affect on the ability of some victims or
witnesses to make a fair and accurate identification. It also places an
additional burden on the police and demands on legal advisers which, if
the viewing by the victim or witness is itself videoed, adds little to the
safeguards.
3.40 For the identification officer, it creates particular problems when a
victim or witness is unable to travel and the officer considers it
appropriate to arrange the viewing at the person’s home. Therefore we
want to look at ways in which we are able to remove or minimise any
sense of fear or intimidation and encourage victims and witnesses to
confidently participate in identification procedures.
3.41 We also want to examine how technology can be used to protect the
identity of victims and witnesses and how best to use places other than
the police station to carry out identification procedures. In all of this, we
148
VIDEO IDENTIFICATION PARADES
must ensure that sufficient safeguards are in place which make sure that
any new processes are subject to appropriate scrutiny and
accountability. . . .”
The author has joined in a submission to the Home Office upon which the
observations which follow are largely based.
In asserting that the presence of a defence solicitor at a video identification
“is known to have an adverse effect on the ability of some victims or witnesses to
make a fair and accurate identification” the Consultation Paper cites no systematic
research. Presumably it is based on informed supposition that some vulnerable
witnesses may fear that a solicitor will identify them to the suspect or pass on
details of their appearance, and that this may lead to their being harmed.
Warranted or not such fears may pose a very real problem for investigators at what
must often be a delicate and decisive phase of the inquiry. It would certainly be
unfortunate if the presence of the suspect’s legal representative were to stultify a
prosecution before it even got off the ground. Provided a system of safeguards of
the kind described earlier for preventing the communicating of cues, including
video monitoring of the room where the video identification session is
conducted,183 are maintained there would seem to be very little practical advantage
for the suspect in having a solicitor present, beyond of course the subjective
benefit that it may cause the witness to be inhibited from making an identification!
Portable system For obvious reasons any nervousness on the part of a
witness about the presence of the suspect’s legal representative would be likely to
be heightened where the video identification was to take place at the witness’s
home. The system described earlier is eminently adaptable for portable use at the
witness’s home or in hospital.
CCTV monitoring of the precincts The provision of relatively inexpensive
CCTV in the witness waiting area to monitor the arrangements for preventing
cross-contamination would serve to obviate any justification for solicitors to attend
in order to keep watch at vastly greater expense.
The question of preserving witness anonymity The authors of the
Consultation Paper state, in paragraph 3.41, that they want to examine how
technology can be used to protect the identity of victims and witnesses. If no
identification is made there will be little reason to disclose to the defence the
video-recording of the process and therefore the appearance of the witness.
However, where a positive identification is made and is relied upon by the
prosecution it is an essential component of the process of fair trial that defence
lawyers, at least, should be able to scrutinise the facial expressions and demeanour
of the witness viewing the array of images. To ensure a fair trial through effective
legal representation it will not therefore be possible to conceal the witness’s
identity, in the sense of appearance, from defence lawyers. The principle will be no
See above, p.120, paragraph captioned “Preventing non-vocal cues during the identification
process.”
183
149
VISUAL IDENTIFICATION PROCEDURES UNDER PACE CODE D
different from the provision of screens in court. However, to ensure that the
defendant does not become privy to the witness’s identity in a case of vulnerability
it may be necessary to make disclosure of the video-recording of the identification
process conditional on its non-disclosure to the defendant. This may easily be
achieved by non-release of copies, as in some cases of sensitive “ABE” (Achieving
Best Evidence) video interviews involving child victims of sexual depredation. In
such cases the defence legal team would only be permitted to view the videorecording in private at a police station, in the absence of the defendant. Later, in
court, where the witness gives evidence from behind a screen and the defence
require the jury to view the video-recording this would be accomplished without
the defendant being afforded a view of the video monitor.
150
Chapter 5
THE EVIDENCE IN COURT
A. ADMISSIBILITY OF EVIDENCE OF THE SIGNIFYING
OF A VISUAL IDENTIFICATION
(1) Modes of signification
Street identifications will characteristically and typically consist of a combined
gesture of pointing and denotive speech. Identification of a photograph will be
spoken. The older procedure for conducting identification parades involved the
witness touching the selected person’s shoulder, and words might sometimes be
used in addition. Video identification will necessarily involve the use of words to
signify the number of the image selected, although witnesses with hearing or
speech impairment may well employ gesture in lieu of speech.
(2) Principles of admissiblity
(i) Evidence of positive identification
Nowadays it is considered generally of little evidential value, prejudicial and
unacceptable for witnesses to identify the defendant in the dock as a person seen
on a relevant occasion, although nominally that might well constitute direct
evidence.1 However, what in contrast will be of real importance is evidence
1
It is not now the practice in England and Wales to seek or permit dock identifications, but there is no
absolute rule against them: see Tido v. The Queen, unreported, June 15, 2011, P.C., where it was said
that the admission of such evidence is not to be regarded as permissible in only the most exceptional
circumstances but a trial judge will always need to consider whether the admission of such testimony,
particularly where it is the first occasion on which the accused is purportedly identified, should be
permitted on the basis that its admission might imperil the fair trial of the accused. The discretion to
admit the evidence must be exercised in light of the particular circumstances of the individual case,
including consideration as to why an identification parade was not held. Where a dock identification is
admitted, it will always be necessary to give the jury careful directions as to the dangers of relying on
that evidence and, in particular, to warn them of the disadvantages to the accused of having been denied
the opportunity of participating in an identification parade, if indeed he has been deprived of that
opportunity. In such circumstances, the judge should draw directly to the attention of the jury that the
possibility of an inconclusive result to an identification parade, if it had materialised, could have been
deployed on the accused’s behalf to cast doubt on the accuracy of any subsequent identification. The
jury should also be reminded of the obvious danger that a defendant occupying the dock might
automatically be assumed by even a well-intentioned eye-witness to be the person who had committed
the crime with which he was charged (considering Aurelio Pop (2003) 147 S.J. 692, P.C.
(CLW/03/24/6), Holland v. H.M. Advocate, The Times, June 1, 2005, P.C. (CLW/05/21/5), Edwards
(2006) 150 S.J. 570, P.C. (CLW/06/18/1), and saying that, in Edwards, the board went further than was
warranted by the earlier authority). In Neilly v. R. [2012] 2 Cr.App.R. 248(20), P.C. it was again
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VISUAL IDENTIFICATION PROCEDURES UNDER PACE CODE D
conveying to the jury what a witness said or did by way of identifying the
defendant on a particular significant occasion, such as in the street shortly after the
perpetration of an offence or during a controlled formal procedure such as a video
identification. The courts have long been faced with the problem of having to
define a legal basis for the admissibility of evidence narrating such significations. 2
Conventionally, identification witnesses are permitted to give evidence that
they made a street identification or that they identified a particular person during a
formal identification procedure. Similarly police officers are conventionally
allowed to give evidence that an eyewitness made a positive identification. The
admissibility of such evidence would not now seriously be challenged. However,
the precise legal basis for the admissibility of the combination of the evidence of
the identifying witness and of a supporting witness remains uncertain and
undefined. In Christie3 a child gave evidence that the defendant was his attacker
although not that he had identified the defendant at the scene but the fact that he
had done so was permitted to be adduced by his mother and a police officer
apparently on the basis that it showed consistency on the part of the complainant.
In McKay4 the identifying witness had identified the suspect by number at a live
parade and in evidence told of having done so but was no longer able to recall the
number and that evidence was adduced by the identification officer. The Court of
Appeal found it unnecessary to decide whether dmissibility was on the basis that
signification by number was an act of identification and therefore real or original
evidence or whether it was a category of exception to the hearsay rule. The court
foudn support for admissibility in the structure of Code D itself and there seems
little doubt that time-honoured practice has established its own legitimacy,
irrespective of the precise legal category of the evidence.
In practice the faltering of the witness’s memory over whether an
identification was made or as to the number of the person or image selected can
easily be rectified by showing the witness the official contemporaneous record of
the procedure. The relevant portions record the witness’s words and those portions
must be signed by the witness. The signature is evidence that the entries are the
witness’s own and a witness may therefore properly be invited to use it as an aide
memoire. Thus, it may be contemplated that the official signed record will
stressed that the decision whether to permit a dock identification was one for the trial judge to be
exercised in the light of all the relevant circumstances. Ultimately, the question was one of fairness,
bearing in mind the judge’s ability and duty to give appropriate directions in summing up, as indicated
by the authorities. Where there has been no identification parade and whether there is any good reason
(and if so what) for there not having been one, is a material circumstance. Where the uncontroversial
evidence is that the defendant was well-known to the witness before the offence, and the witness has
previously identified him, a dock identification may be no more than a formality.
2
The topic is comprehensively discussed in Bogan, op. cit., at paras. 10.38 to 10.43. As the latter
commentator rightly points out at para 10.38, n.52, five different approaches were taken in the earlier
leading authority Christie [1914] AC 545, H.L. and more recent authorities, notably McKay (1900) 91
Cr.App.R. 84; [1990] Crim.L.R. 338, C.A., and Osborne and Virtue [1973] 57 Cr.App.R. 297; [1973]
Crim.L.R. 178, C.A., have attracted academic criticism.
3
Supra.
4
Supra.
152
THE EVIDENCE IN COURT
normally be utilised in this way to overcome the potential evidential hiatus caused
by memory frailty of the kind which occurred in Osbourne and Virtue.5 Two
witnesses had identified one of the appellants at a parade but one stated at trial that
she could not remember identifying anyone and the other said that she did not
think that the person she had picked was the defendant in the dock. It was held that
the evidence of the identification officer that they had each identified one of the
appellants was admissible, a decision which it has been observed is difficult to
reconcile with any principle of evidence.6 As the hearsay rule was not referred to
in the judgment the court were not professing to recognise an exception to the rule
but such an exception would hardly have worked any injustice in a similar case
provided the documentation is sufficiently comprehensive to ensure the
elimination of error in recording what was said and done. In any event, in allowing
proper memory refreshment such documentation will preclude the need to fall
back on a hearsay rule exception. Moreover, video-recording of the identification
procedure is now in common use and may well be admissible as a specie of real
evidence.
(ii) Failure to identify and qualified identification
In the interests of being seen to be fair the prosecution will normally lead
evidence of the failure by a witness to make an identification or to the fact that a
witness professed to exonerate the suspect (for example by declaring that the
culprit was not among the images shown). However, such extreme positions are
probably less common in practice than qualified identifications or those expressed
with reservations, to which reference has already been made. 7 The whole question
of the basis of the admissibility of such intermediate utterances was considered in
depth by a cause celebre in the history of modern identification cases, the decision
in George8 In that case a number of witnesses gave a variety of qualified, not to
say attenuated, assertions pointing to the possibility of an accurate identification of
the suspect as the person seen on the relevant occasion. The Court of Appeal
upheld the decision to admit the evidence of the totality of remarks,
acknowledging that although a defendant was not to be convicted on the evidence
of a qualified identification alone, it might be relevant in at least two
circumstances: first, where it supports or at least is consistent with other
incriminating evidence, and secondly where the explanation for a non or qualified
identification may help to place the non or qualified identification in its proper
context and so, for example, show that other evidence given by the witness may
still be correct. Otherwise, the court observed, a non or qualified identification
could be used to attack the credibility of other evidence given by a witness when
the explanation may show that such an attack is unjustified. On the other hand,
warned the court, prosecuting counsel must be cautious and avoid conducting the
5
Supra.
Bogan, op. cit., para. 10.41.
7
See above Chapter 4, pp.133-135.
8
[2003] Crim.L.R. 282, C.A., discussed in depth by Bogan, op. cit., paras. 10.51-10.56.
6
153
VISUAL IDENTIFICATION PROCEDURES UNDER PACE CODE D
examination of a witness who had failed to make a positive identification in a
manner which suggests that “but for this fact or that fact” the witness would have
made a positive identification. In the court’s words,
“An identification which is qualified cannot be transformed into one
which is unqualified by careful questioning.”
On the facts of the case the evidence was properly admitted as supporting an
“underlying unity of description” of the assailant and general consistency of the
identification evidence and supported “a considerable volume of other
circumstantial evidence.” The prosecution were entitled to place before the jury the
qualified identification in the context of the real and substantial problems which
faced the witnesses resulting from the delayed procedure and the change in the
appellant’s appearance.
B. EXCLUSION FOR CODE BREACH
(1) Discretionary exclusion of identification evidence in the event of code
breach
(i) The general principle of exclusion for breach of Code D
The breach of any provision of a PACE code of practice may occasion an
application to the court of trial to exercise its discretion under s.78 of the PACE
Act by excluding evidence to which the breach relates in the interests of promoting
fairness in the proceedings. In assessing the issue of fairness the court is required
by s.78 to take account of the circumstances in which the evidence was obtained.
Although non-compliance with the Code is not decisive but “only a factor, maybe
a cogent factor in the decision to admit or exclude evidence” it has been said that
as the overall purpose of Code D is one of adopting fair identification practices and
adducing reliable identification evidence, insufficient regard to those purposes is
likely to be met by the discretionary exclusion of evidence and convictions are
liable to be treated as unsafe. 9 The breach of a code provision requiring a
procedure to be conducted in a certain way may impugn the fairness of that
particular procedure and vitiate the evidence obtained in consequence. Other
breaches may be adjuged to have caused unfairness indirectly, as where the failure
to hold a video identification under controlled conditions deprived the suspect of
the chance to test a prior informal street identification, albeit one which was in
itself code-compliant.
Where the defence raise a complaint of a breach of Code D, the court of trial
will be required first of all to rule on whether the police were in breach, and then,
if the complaint is upheld, the court will have to determine whether to exclude the
evidence to which the breach relates. Reasons must normally be given for allowing
in evidence in spite of an admitted or proven breach.10 On appeal against
9
10
Popat [1998] 2 Cr.App.R. 208, at pp.212 and 224, C.A.
Allen [1999] Crim.L.R. 643, C.A.
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THE EVIDENCE IN COURT
conviction from a trial on indictment the appeal court will be required to consider
whether or not the trial judge was in error in ruling that no breach occurred. If the
complaint of breach is upheld it will mean that the trial judge failed to exercise his
discretion under s.78 to exclude the evidence of identification. 11 The court will
then in effect exercise its own discretion in determining whether the evidence
ought to have been excluded. If it holds that the evidence ought to have been
excluded this will result in the conviction being quashed if the court concludes that
the verdict of the jury might have been different and the conviction was therefore
unsafe. If on appeal the complaint is that although the trial judge upheld the breach
but declined to exclude the evidence to which it related, as a matter of general
practice the appeal tribunal will rarely interfere unless it concludes that the
discretion was exercised unreasonably.
(2) Examples of typical breaches requiring the exercise of discretion
(i) Exclusion of evidence not subsequently tested by a mandatory controlled
procedure
(a) Street identification Where, following a street identification no formal
procedure is carried out in breach of Code D, the court of trial will be required first
of all to rule on whether the police were in breach, and then, if such a ruling is
given, consideration will have to be given to the question whether to exclude the
original identification or the evidence of purported recognition under PACE,
s.78.12 Against the background of these principles the actual decision in the
landmark authority of Forbes warrants critical examination, having regard to the
fact that the House of Lords (i) laid as much stress as they did on the importance of
holding an identification parade in order to put the reliability of an earlier street
identification to the test and (ii) emphasised that the mandatory obligation to hold
an identification procedure was not displaced merely because there had been a
“fully satisfactory” or “actual and complete” or “unequivocal” identification by the
witness previously. The complainant had been driven by a friend to a cashpoint
machine where he withdrew £10. He was then approached by a man who blocked
his path, asked for money on compassionate grounds, became aggressive when he
was refused, pursued the complainant, threatened to “cut him up” and, standing
very close to him, revealed what looked like the handle of a knife. The
complainant managed to evade him and was driven away from the scene in his
friend’s car. Subsequently they passed the man in the street and, as they did so, the
complainant and the man made eye contact and the man spat towards the car as it
went by. The complainant called the police on his mobile telephone and gave a
description. A few minutes later he was driven around the streets in a police car
11
The appellate court may sometimes be confronted with the duty to unravel such curiosities as the
rulings in Harris [2003] EWCA Crim 174, discussed above at Chapter 3, pp.72-73.
12
Where a defendant is unreasonably denied an identification procedure, a court should be slow to
permit the prosecution to call evidence, such as facial mapping, to fill a gap in the identification
evidence: Walker (1994) unreported C.A. 14 November.
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VISUAL IDENTIFICATION PROCEDURES UNDER PACE CODE D
and positively identified the appellant as his assailant. The appellant denied the
accusation and three times before the trial the defence asked in vein for an
identification parade. Holding that the evidence of the street identification was
rightly admitted in spite of the code breach the House of Lords concurred with the
Court of Appeal that
“. . . [t]he evidence was compelling and untainted, and . . . did not suffer
from such problems or weaknesses as sometimes attend evidence of this
kind: as, for example, where the suspect is already visibly in the hands of
the police at the moment he is identified to them by the complainant.” 13
The Appeals Committee expressed the opinion that in the event of an
(unwarranted) failure to hold an identification procedure the jury should ordinarily
be told that such a procedure enabled a suspect to put the reliability of an
eyewitness’s identification to the test, that the suspect had lost the benefit of that
safeguard and that they should take account of that fact in their assessment of the
whole case, giving it such weight as they thought fit. 14 In the instant case there had
been no such direction because the trial judge had ruled wrongly that the decision
not to hold a parade did not constitute a code breach. However, surprisingly, the
failure to give such a direction likewise did not, in the view of the Lords, infringe
the appellant’s right to a fair trial or render the conviction unsafe. So saying, their
Lordships adopted the following passage from the judgment in the Court of
Appeal
“As we have already said, the evidence of street identification was
compelling and untainted. It would be wholly artificial to suppose that a
reasonable jury might have taken a different view if they had been told
that the appellant had been deprived of the chance that the complainant
might not have picked out the appellant on a parade. Again, we bear in
mind that there were in effect two informal identifications.”
What was being said here in effect was that no reasonable jury would have been
likely to entertain doubts about the reliability of the street identification even if
they accepted that, had there been a parade (as there should have been), the
complainant might have failed to identify the appellant on the parade. Cutting to
the chase, the use of the phrase “wholly artificial” was a more elegant way of
saying that to have held a parade would have been a “farce.” Yet, what was lost
was the possibility that, after due time for reflection and confronted by a range of
persons resembling the appellant, the complainant might actually have expressed
doubts about the original identification, or might even have exonerated him. There
may have been two identifications, but this was entirely to beg the question of
13
14
[2001] 1 A.C., at p.487.
Ibid., at p.489. See also Harris, supra.
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THE EVIDENCE IN COURT
whether the complainant in purporting to identify the appellant to the police was
correctly identifying the man who had spat at him (who it may be presumed was
the assailant). In the judgement of the House of Lords while a fully satisfactory,
actual, complete and unequivocal identification could not negate the obligation to
hold a Code D procedure because such identifications have proved in the past to
be “wholly wrong”it did not matter that an identification which was compelling
and untainted was not tested with the obligatory Code D follow-up procedure. The
distinction between the two sets of epithets is obscure.
(b) Identification by photographs Where in the case of a suspect whose identity is
not at the time known a witness makes an identification from an album of
photographs the failure to follow up with a formal controlled procedure may
render the original selection unfair in depriving the defendant of the means of
testing it and the breach may be visited by exclusion of the evidence of the original
photographic identification.15
(c) Dispute that the defendant is well-known to the witnesses Where a witness
claims that he recognised the defendant as a person well-known to him but the
defendant denies or challenges the assertion the failure to test the claim under
formal controlled conditions may result in the exclusion of the evidence of the
claim of recognition.16
(d) Description Evidence of a description may be excluded if it was accompanied
by an expression of ability to make an identification but the police have
improperly and unfairly failed to hold an identification procedure. 17
(ii) Exclusion of purported identification by confrontation
(a) Improper resort to confrontation A court would be almost certain to exclude
evidence of an identification following a confrontation which the police held
without properly resorting to a controlled procedure. 18
(b) Improper conduct of confrontation Evidence of identification by a
confrontation may be liable to exclusion if a confrontation, though permissible in
15
Such a failure has been likened to the dangers of a dock identification: see Maynard (1979) 69
Cr.App.R. 309, C.A.
16
See above, Chapter 3, pp.72-73.
17
See Allen [1995] Crim. L.R. 643, C.A. (fairness of reception of the complainant’s description of the
perpetrator of a purse-snatch held vitiated by the failure to hold a parade).
18
See e.g., Powell v D.P.P [1992] RTR 270, DC; Joseph [1994] Crim.L.R. 48, C.A. (exclusion of
confrontation in court custody area held at request of defence after a ruling that all other procedures
were impracticable). Cf. O’Brien [2003] EWCA Crim 1370 (no code breach or unfairness where
appellants insisted on exonerating themselves after a public house fight).
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VISUAL IDENTIFICATION PROCEDURES UNDER PACE CODE D
the circumstances, is carried out without proper compliance with the rules for
confrontation.19
(iii) Exclusion of evidence of street identification which should not have been held
or by reason of defect in its conduct
Evidence of a street identification may be excluded if the suspect was known at
the time and it should not have been carried out. 20 On the other hand, while it may
not have been improper to hold a street procedure the resulting evidence of
identification may be excluded because the failure to comply with one or more of
the many applicable rule for carrying it out vitiated its fairness and reliability. 21
(iv) Formal procedure tainted by flawed street or photographic identification
Just as evidence of a street identification or identification by inspection of a
photographic gallery may be excluded because it was not followed up by a formal
procedure, so evidence of an identification made as the result of a formal
controlled procedure such as a video identification may be excluded by reason of
having been tainted by a flawed street identification procedure which preceded it.
(v) Other procedural breaches in conducting a formal controlled procedure
Breaches of the Code in conducting a formal procedure may result in
exclusion (or the quashing of a conviction where appropriate) if it is so serious as
to vitiate the fairness and reliability of the identification. However, it may also be
excluded if the court considers that the transgressed rule is of such importance that
as a matter of principle exclusion ought follow in the interests of ensuring the
appearance of fairness, in effect the maintenance of standards. A variety of
examples is illustrative.
(a) Involvement of investigating officer in the procedure The involvement of the
investigating officer in the procedure in contravention of the long established rule
may well be regarded as the breach of a fundamental principle serious enough to
merit exclusion in spite of a finding that no actual contamination was likely to
have occurred.22
(b) Communication between witnesses Where witnesses participating in an
identification procedure have been in a position to communicate with each other
19
See Jones and Nelson (1999) unreported, 26 march, C.A., cited by Bogan, op. cit., para. 10.64,
(exclusion where appellant compelled by force to participate in confrontation).
20
See Nagah (1991) 92 Cr.App.R. 344, C.A. (Code held completely flouted where the appellant was
released from the police station while the complainant waited outside in a car and identified him as the
man who had raped her); Fuller (2000) unreported, 22 May, C.A. (street identification a “gross
violation” where suspect known and failure to record first description); K v DPP (2003) unreported, 11
February, C.A. (known suspect, and also no formal controlled procedure).
21
See Hickin [1996] Crim.L.R. 584, C.A. (evidence excluded where witnesses made identifications in
each others presence, no prior descriptions were taken athough this was not then a code requirement,
and no records were kept as to which witness had identified which suspect); Vaughan (1997) The
Independent 12 May, C.A. (judgment 30 April, no first description recorded).
22
Gall [1989] Crim.L.R. 745, C.A. (officer escorted a witness to the parade and saw the parade before
the viewing began; held the evidence ought to have been excluded)
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THE EVIDENCE IN COURT
and so influence the selection this may taint the porcess sufficiently to justify
exclusion or the quashing of a conviction. 23
(c) Requirement for resemblance It is of crucial importance that in any array of
photographs or images the persons depicted should resemble each other and the
suspect. It will obviously be a fundamentally serious code breach of the suspect’s
appearance differs markedly from that of the other persons whose pictures or
images are shown and this may vitiate the fairness of the procedure. 24 However,
where the suspect or the defence legal representative have been able to vet the
selection of images to be shown in a video identification it may be difficult to
sustain a complaint of unfairness.25
C. DIRECTIONS TO THE JURY
(1) Regina v Turnbull
The jury must be given a “Turnbull” direction in any case of visual identification. 26
(2) Directions where identification evidence is allowed despite the upholding
of a submission of code breach
It was stressed in Forbes27 that if the judge upholds a complaint that Code D has
been contravened but nevertheless exercises his discretion to allow in the evidence
of identification to which the provision relates he must then give the jury an
appropriate direction as to the relevance and effect of the breach, explaining that
there has been a breach and how it has arisen and that the defendant has lost the
benefit of the particular safeguard in question. They must then be told that in
assessing the whole of the evidence they should give the breach such weight as
they think fit.
23
Finley [1993] Crim.L.R. 50, C.A. (one witness to a photographic identification certain to have
overheard remarks by another when identifying the defendant; risk of contamination between four
witnesses either before or when attending a parade together; conviction quashed for these and other
reasons).
24
See ibid., in which the defendant was the sole blond skinhead on display in a photograpic array in
contravention of Annex E.4.
25
See Quinn [1995] 1 Cr.App.R. 480, C.A.; Mendili [2001] EWCA Crim 757.
26
(1977) 98 Cr.App.R. 313, C.A. The topic is extensive and is considered beyond the scope of this
treatise.
27
[2001] 1 Cr.App.R. 430, H.L., followed in Harris [2003] EWCA Crim 174.
159