Professional Documents
Culture Documents
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
www.DavidWolchover.co.uk
Published on-line at www.DavidWolchover.co.uk
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.
Table of
Cases i
i
TABLE OF CASES
ii
TABLE OF CASES
iii
Chapter 1
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
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
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.
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VISUAL IDENTIFICATION PROCEDURES UNDER PACE CODE D
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 Constables 5 and from time to time thereafter,
typically following some cause célèbre or other,6 the rulesstrictly speaking
guidance principleswere 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
short of declaring a rule requiring corroboration of such evidence and convictions
3
Devlin Report, para. 5.29.
4
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.
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VISUAL IDENTIFICATION IN THE CRIMINAL PROCESS
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.
9
McKenzie and Dunk, supra, p.179.
10
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.
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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.
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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).
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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 Dnow further
amended in a number of particulars and expressed in the modified linguistic style
of the revised codeswere 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
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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
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VISUAL IDENTIFICATION PROCEDURES UNDER PACE CODE D
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VISUAL IDENTIFICATION IN THE CRIMINAL PROCESS
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.
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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 Attorney-
General’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
30
Ibid.
31
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.
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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
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 eye-
witnesses 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
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) Whether the person knew or was given information concerning the
name or identity of any suspect.
(b) 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.
(c) How and by whom the witness was asked to view the image or look at
the individual.
(d) Whether the viewing was alone or with others and if with others, the
reason for it.
(e) The arrangements under which the person viewed the film or saw the
individual and by whom those arrangements were made.
(f) Whether the viewing of any images was arranged as part of a mass
circulation to police and the public or for selected persons.
(g) The date time and place images were viewed or further viewed or the
individual was seen.
(h) The times between which the images were viewed or the individual
was seen.
(i) How the viewing of images or sighting of the individual was
controlled and bywhom.
(j) Whether the person was familiar with the location shown in any
images or the place where they saw the individual and if so, why.
(k) 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
35
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.
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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.
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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.
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16
VISUAL IDENTIFICATION IN THE CRIMINAL PROCESS
49
Evidence (General), Cmnd. 4991, June 1972, para. 196.
50
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., “Identificationdescription 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.
17
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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
18
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20
VISUAL IDENTIFICATION IN THE CRIMINAL PROCESS
Valentine, T., Pickering, A. and Darling, S., “Characteristics of eyewitness identification that predict 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 cross-
examination 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.
21
VISUAL IDENTIFICATION PROCEDURES UNDER PACE CODE D
time,68 very little has so far been done to implement such a programme. It follows
that Code D contains no provisions designed to avoid the dangers implicit in poor
technique.
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
68
McKenzie, I., and Dunk, P., “Identification parades: psychological and practical realities,” in ibid., at
pp.183-184.
69
Ibid., p.185.
70
See Bogan, op. cit., p.179.
22
VISUAL IDENTIFICATION IN THE CRIMINAL PROCESS
23
VISUAL IDENTIFICATION PROCEDURES UNDER PACE CODE D
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
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
77
D5.16.
78
Ibid.
79
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.
24
that may assist in establishing the person’s identity, or their identification as a
person involved in the commission of an offence. 86
86
D5.21(d).
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.
25
VISUAL IDENTIFICATION PROCEDURES UNDER PACE CODE D
(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 basis 93 and need
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 depicted 95
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.
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).
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., pp176-
177.
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
97
See above, p. 16.
27
VISUAL IDENTIFICATION PROCEDURES UNDER PACE CODE D
98
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.
99
See Bogan, op. cit., para. 3.10, p. 24.
100
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.
101
See below.
102
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.
103
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
104
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.
105
R v Governor of Pentonville Prison ex p Voets [1986] 1W.L.R. 470, D.C.
29
VISUAL IDENTIFICATION PROCEDURES UNDER PACE CODE D
106
Bogan, op. cit., at p.186.
107
(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.
108
Bruce, V., and Young, A., In the Eye of the Beholder, Oxford University Press, 1998, note at pp.180-
181, 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.
109
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
110
See Valentine, “Forensic Facial Identification,” cited in Chapter 1 above at n.10, para 17.31.
30
SUSPECT’S IDENTITY NOT KNOWN
31
VISUAL IDENTIFICATION PROCEDURES UNDER PACE CODE D
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
115
“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
within-witness 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.)
32
SUSPECT’S IDENTITY NOT KNOWN
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
University of Central Lancashire. 116 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.117
(v) Overshadowing
Research has also demonstrated that the phenomenon of overshadowing 118 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. 119
33
VISUAL IDENTIFICATION PROCEDURES UNDER PACE CODE D
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.
(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. 120 As with CCTV recordings or stills they
may be used by the jury to compare with the appearance of the defendant.121
“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.”123
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
120
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.
121
See below pp.42-43.
122
Annex E.1.
123
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
124
Annex E.3.
125
Annex E.3.
126
Annex E.3.
127
Annex E.4.
128
Annex E.5.
129
Annex E.5.
35
VISUAL IDENTIFICATION PROCEDURES UNDER PACE CODE D
Witnesses must be told that they should not make a decision until they have
viewed at least twelve photographs.130
(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.131
(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.132 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.133
(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.134
(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. 135
(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.136 It is the responsibility of the officer in charge of the investigation to notify
the identification officer that this is the case. 137
(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. 138 They
130
Annex E.5.
131
Annex E.5.
132
Annex E.6.
133
Annex E.6.
134
Annex E.7.
135
Annex E.8.
136
Annex E.9.
137
Annex E.9.
138
Annex E.10.
36
SUSPECT’S IDENTITY NOT KNOWN
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.139
(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. 140 This must include
anything said by the witness about the identification or the conduct of the
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.141 The supervising officer must inspect and sign the record as
soon as practicable.142 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.
37
VISUAL IDENTIFICATION PROCEDURES UNDER PACE CODE D
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.
144
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).
38
SUSPECT’S IDENTITY NOT KNOWN
145
[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.13.
39
VISUAL IDENTIFICATION PROCEDURES UNDER PACE CODE D
146
[2011] Crim.L.R. 560, C.A. (commentary by Andrew Roberts).
147
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).
148
As to which see below, pp.42-43, under paragraph (2), “Use of CCTV footage or stills in court.”
149
Since D3.28 permits the showing of imagery for the purposes of recognition its location in Part A is
anomalous and was presumably an error.
40
SUSPECT’S IDENTITY NOT KNOWN
41
VISUAL IDENTIFICATION PROCEDURES UNDER PACE CODE D
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. 153 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.154
153
D3.29.
154
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.
155
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).
156
[1995] 2 Cr.App.R. 333, C.A. (above, p. 10).
42
SUSPECT’S IDENTITY NOT KNOWN
altered his appearance since his arrest, 157 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. 158 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
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. 159 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:
C. STREET IDENTIFICATIONS
(1) The common scenarios: extrinsic factors of weakness in identifications
157
Dodson and Williams (1984) 79 Cr.App.R. 220, C.A.; Downey [1995] 1 Cr.App.R. 547, C.A.
158
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.
159
[2015] 2 Cr.App.R.215(14), C.A, preferring Downey, supra, to Blenkinsop [1995] 1 Cr.App.R. 7,
C.A.
160
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.
43
VISUAL IDENTIFICATION PROCEDURES UNDER PACE CODE D
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. 161 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.162
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. 163 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. 164 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.165
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. 166 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
161
See, eg, Brown [1991] Crim.L.R. 368, C.A.
162
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.
163
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.
164
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.
165
Jones and others (1994) 158 J.P. 293, C.A.
166
“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.”
44
SUSPECT’S IDENTITY NOT KNOWN
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. 167
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. 168 In any event,
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.
167
See Bogan, op.cit., paras. 3.27 and 10.65.
168
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
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
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
mechanics. This is discussed next in the context of the measures designed to
reduce its impact.
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
169
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.
46
SUSPECT’S IDENTITY NOT KNOWN
constrained by the belief they have as yet insufficient information to justify arrest
but who may very soon be in custody after being identified, 170 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.171
(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 attempt172 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:
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.173 As the Court of Appeal said in Vaughan,174 “the rule is not mere
bureaucracy [but] affords the best safeguard that has so far been devised against
170
See Malashev [1997] Crim.L.R. 587.
171
See Roberts, A. and Clover, S., “Managerialism and Myopia: The Government’s Consultation Draft
on PACECode 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).
172
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.
173
Hickin [1996] Crim.L.R. 584.
47
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.”175
The failure to take a first description and to make a note of it before an
identification will normally constitute a breach of Code D176 and may result in the
conviction being quashed.177 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”178 and where there may be insufficient officers available it may be
regarded as an “affront to common sense” 179 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.”180
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,
174
(1997) The Independent 12 May, C.A. (judgment 30 April). See also Miah [2001] EWCA Crim
2281.
175
Bogan, op. cit., para 5.17, p.66.
176
Ryan v D.P.P. (2000) unreported, 10 October, C.A.
177
Vaughan (1997) The Independent 12 May, C.A. (judgment 30 April).
178
McMath [1997] Crim.L.R. 586, C.A.
179
See, eg, Crowe, unreported C.A. 6 March 1998, and El Hannachi [1998] Crim.L.R. 881, C.A.
180
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.
48
SUSPECT’S IDENTITY NOT KNOWN
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
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.181) 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
181
D3.12.
49
VISUAL IDENTIFICATION PROCEDURES UNDER PACE CODE D
the need to identify suspects before they disperse. 182 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. 183 Second, those who who have
completed their involvement should be asked to leave the scene immediately.
(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.184
(d) Recording action taken New to the code and responding to a plea by Mitchell
J. in Hickin185 is D3.2(e) which provides
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
182
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.”
183
D3.2(e).
184
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”).
185
[1996] Crim.L.R. 584, C.A.
50
SUSPECT’S IDENTITY NOT KNOWN
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
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.186 D3.2(b), which now adds an important qualification to the old rule
D2.17, provides
186
(1994) unreported, 10 March, C.A. See Bogan, op. cit., para 5.23, p.67.
187
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.
51
VISUAL IDENTIFICATION PROCEDURES UNDER PACE CODE D
examination question with no wrong answer.188 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 assumedto concentrate on a particular person or group. 189 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
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.
188
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.
189
Roberts and Clover, [2002] Crim.L.R., at p.888.
190
Ibid.
52
SUSPECT’S IDENTITY NOT KNOWN
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
police officers191 a combination of the above factors may well furnish reasonable
grounds for suspicion justifying an arrest, even without a positive identification. 192
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 co-
operation 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. 193
191
Coulman v D.P.P. [1997] C.O.D. 91, D.C.
192
See eg Nunes [2001] EWCA Crim 2283; [2001] 10 Archbold News 1, C.A.
193
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 meta-
analystic 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
53
VISUAL IDENTIFICATION PROCEDURES UNDER PACE CODE D
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.
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.
54
SUSPECT’S IDENTITY NOT KNOWN
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 witnesses195). The decision seems implicitly to have recognised an
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.196 However, the difficulty of arranging
live parades quickly was always a problem for the police, regardless of the number
of suspects.197 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.198
(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
desertedfactors which may in themselves induce the witness to believe that the
person is the culpritmay 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
195
See Bogan, op. cit., para 3.25.
196
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”).
197
The comparative delays in arranging live and video parades are reviewed below.
198
Bogan, op. cit., para 3.25, chapter 1, note 34.
55
VISUAL IDENTIFICATION PROCEDURES UNDER PACE CODE D
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.
56
Chapter 3
199
D3.4.
200
D3.23.
201
See Graham [1994] Crim. L.R. 414, C.A.
202
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.
57
“if the suspect asks for one and it is practicable to hold one” 203 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 . . .”204 In an attempt to “resolve some
of the lacunae and uncertainties” 205 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:
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,
203
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.
204
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..
205
Ibid., para. 3.35.
58
SUSPECT’S IDENTITY KNOWN
206
I am grateful to Daniel Stevenson, barrister, for some assistance in the preparation of this section.
207
Rutherford and Palmer (1994) 98 Cr.App.R. 191.
208
Nicholson [2000] Cr.App.R. 182, C.A.; Harris [2003] EWCA Crim 174.
209
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.
210
D3.13, the precursor paragraph of D3.12 of the final version of 2003; proposed additions shown in
emphasis.
59
VISUAL IDENTIFICATION PROCEDURES UNDER PACE CODE D
211
Roberts, A., and Clover, S., “Managerialism and Myopia: The Government’s Draft Consultation on
PACECode D,” [2002] Crim.L.R., 873, at p.879. In Popat [1998] 2 Cr.App.R. 208, at p.215, the
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.”
212
In terms which adopt those proposed at ibid.
213
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.
214
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 Heaton-
Armstrong, 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.
215
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.
60
SUSPECT’S IDENTITY KNOWN
216
This corrects the author’s view to the contrary expressed in previous editions of the present work.
Even if this be wrong D3.12(b) clearly imposes no prohibition of a procedure in these circumstances. It
may still be held if the officer in charge of the investigation considers it would be useful: D3.13.
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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
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.217 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.218
217
Gayle [1999] 2 Cr.App.R. 130, C.A.
218
See also below, Chapter 4, pp.119-120.
219
See pp.58-59, above.
220
See Bogan, op. cit., para. 3.45.
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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. 225 However, it has been
suggested that it would be inconceivable for the duty to arise where a defendant
announced a defence of mistaken identity for the first time at trial. 226 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. 227 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.228 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. 229
225
A very lengthy lapse of time may mean that the witness feels no longer able to make an
identification.
226
See Bogan, op. cit., para. 3.47.
227
Lambert (2004) 68 J.C.L. 285.
228
[2011] Crim.L.R. 311, C.A.
64
(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:
A further difficulty will arise where the allegation for example, is that of a multi-
handed 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
229
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.
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a case.230 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
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 pre-
2011 code altered the position.231
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. 232 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 others233 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
230
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”.
231
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.
232
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 ).
233
[2001] 5 Archbold News 3, C.A.
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“are designed to test the witness’s ability to identify the person they saw
on a previous occasion.”
“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
234
Annex A.12.
235
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.
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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
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.
236
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.
237
[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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VISUAL IDENTIFICATION PROCEDURES UNDER PACE CODE D
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 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.238
(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. 239 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
concluded240 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
238
Report, para. 5.77. The description was used by the court in Anastasiou [1998] Crim.L.R. 67, C.A.
239
[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.
240
At para. 20.
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complete” and “unequivocal” but proved to be wholly wrong. 241 The decision
therefore upheld the oft declared principle that an identification procedure is as
much for the benefit of protecting a suspect against mistaken identification as for
the benefit of the prosecution.242
(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.243
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.
241
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.”
242
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.
243
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.
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244
[1998] 9 Archbold News 1, C.A.
72
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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 Harris254 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.
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.).
254
Supra.
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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
that the suspect was already well known to the witness. 255 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. 256 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
255
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.”
256
See above Chapter 2, p.41.
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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,257 a case which is analagous to
undisputed recognition. In order to keep observation on the appellants police
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.258
257
[2003] EWCA Crim 3869.
258
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.
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VISUAL IDENTIFICATION PROCEDURES UNDER PACE CODE D
259
D3.4. The definition dates from the 1995 revision in which it appeared as Note for guidance 2D.
260
Bogan, op. cit., para. 4.11.
261
Ibid. A suspect whose arrest was imminent might well be regarded as available: Kitchen [1994]
Crim.L.R. 684, C.A., cited in ibid.
262
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.
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VISUAL IDENTIFICATION PROCEDURES UNDER PACE CODE D
267
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.
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VISUAL IDENTIFICATION PROCEDURES UNDER PACE CODE D
(ii) Practicability
The scheme of the paragraph is to give primary preference to video
identification. The first testin (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.
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272
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.
273
Bogan, op. cit., para. 4.21, n.32.
274
It will also be the only method for use in cases where the suspect is not available: see below.
275
Cm. 5563, July 2002, para. 3.14.
276
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.
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VISUAL IDENTIFICATION PROCEDURES UNDER PACE CODE D
video identification reflected the view that the video library would do the job
better than the traditional parade. 277
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. 278 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
not clear. It has been suggested 279 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.” 280 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
277
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 MyopiaThe Government’s
Consultation Draft on PACE Code D” [2002] Crim.L.R. 873).
278
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.
279
See Bogan, op. cit., para. 4.21.
280
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.
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SUSPECT’S IDENTITY KNOWN
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.281 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
by their resemblance to the s uspect in terms of height and buildto 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.
281
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.
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VISUAL IDENTIFICATION PROCEDURES UNDER PACE CODE D
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. 282 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.283 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
“[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.284
(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
282
The equal ranking formula was removed for the 2006 edition. The Home Office schedule of changes
is available on-line.
283
See Bogan, op. cit., para 4.20, n.31.
284
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.”
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SUSPECT’S IDENTITY KNOWN
why another procedure should be used.”285 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.286 The failure to offer an alternative where there is no impediment in
terms of practicability and suitability will be a breach of the code. 287 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.
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VISUAL IDENTIFICATION PROCEDURES UNDER PACE CODE D
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 co-
operating 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
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. 290 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,”291 D3.21 provides
290
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.
291
D3.5.
292
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
88
SUSPECT’S IDENTITY KNOWN
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.
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VISUAL IDENTIFICATION PROCEDURES UNDER PACE CODE D
293
For consideration of the possible sources of still photographs see below, pp.90-91 and Chapter 4,
p.99.
294
Annex A.4.
295
Under D3.20, addressed below.
296
D3.18.
297
Ibid.
298
D3.17(x).
299
D3.17(iv).
300
D3.17(v).
301
Ibid.
302
D3.20.
90
SUSPECT’S IDENTITY KNOWN
91
VISUAL IDENTIFICATION PROCEDURES UNDER PACE CODE D
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
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 Kennedy307 is an early examplenotably dating from just about the
time of the 1991 revision, when video identification was included for the first
timeof 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 video-
recorded 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.
307
(1992) unreported, C.A. 20 March, 90/02296/Y4.
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SUSPECT’S IDENTITY KNOWN
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.308 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
custody suites might be susceptible to challenge under the right to privacy
guaranteed by Article 8 of the European Convention on Human Rights. 309 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 Kingdom310 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
308
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.
309
[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.”
310
(2003) E.C.H.R. No. 63737/00, 17 July.
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VISUAL IDENTIFICATION PROCEDURES UNDER PACE CODE D
311
See commentary at [2003] 7 Archbold News 2.
312
See Loveridge et al. [2001] 2 Cr.App.R. 29, C.A.
313
D3.21.
314
D3.23.
315
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
94
SUSPECT’S IDENTITY KNOWN
95
VISUAL IDENTIFICATION PROCEDURES UNDER PACE CODE D
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.320
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
anything like as forlorn a prospect as may be supposed. 321 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.
320
See above p.87.
321
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.
96
Chapter 4
322
This section is based on a digest of information gleaned from consulting several websites, not all of
which is consistent.
323
Quoted from release 072/2003 on the website gnn.gov.uk.
97
VISUAL IDENTIFICATION PROCEDURES UNDER PACE CODE D
98
VIDEO IDENTIFICATION PARADES
(2) PROMAT326
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 the system is that the
preparation of the array from capture of the suspect’s image to completion of a
326
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.
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VISUAL IDENTIFICATION PROCEDURES UNDER PACE CODE D
327
Valentine, “Forensic facial identification,” cited above in Chapter 1, n.10, para 17.35.
328
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.”
329
See proposal discussed below at B.(27), pp.142-143.
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VIDEO IDENTIFICATION PARADES
carry 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.330 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.331 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) Convenience332
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
330
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.
331
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.
332
See Roberts and Clover, [2002] Crim.L.R., at p.884.
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VISUAL IDENTIFICATION PROCEDURES UNDER PACE CODE D
distances and will spare witnesses who are in poor health from the need to attend a
live parade.333
(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.334 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.335 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. 336 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,” 337 was
333
See ibid.
334
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.
335
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).
336
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.
337
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.
102
VIDEO IDENTIFICATION PARADES
103
VISUAL IDENTIFICATION PROCEDURES UNDER PACE CODE D
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
identification allows such stratagems to be achieved electronically. 342 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 arguednotably by Peter Burton, Head of the Wakefield Imaging
Unitthat 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.343
(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. 344 In
fact the evidence appears to indicate that there is a significantly lower risk of false
342
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.
343
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.
344
Roberts and Clover, [2002] Crim.L.R., at p.885.
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VIDEO IDENTIFICATION PARADES
positive identifications with the method of showing video clips than with
traditional parades. This is considered in more detail below.
(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.345 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.
105
VISUAL IDENTIFICATION PROCEDURES UNDER PACE CODE D
346
Dent, H., and Gray, F., “Identification on Parade” (1975) New Behaviour 366-369, cited in the
Devlin report, para. 5.56.
347
The Law Commission of New Zealand, Total Recall? The Reliability of Witness Testimony
Evidence, Miscellaneous Paper 13, Wellington 1999.
348
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.
349
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.
106
VIDEO IDENTIFICATION PARADES
finding which contrasted favourably with earlier research suggesting that live
parades may have been less fair to ethnic minorities than to white Europeans. 351
350
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.
351
Wright, D.B. and McDaid, A.T., “Comparing system and estimator variables using data from real
lineups” (1996) 10 Applied Cognitive Psychology 75-84.
352
D3.6.
353
D3.11.
354
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.
107
VISUAL IDENTIFICATION PROCEDURES UNDER PACE CODE D
355
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
authority: D2.21. Such staff must have regard to any relevant provisions of the PACE Codes of
Practice: D2.22.
356
D3.11.
357
D2.21.
358
D3.19. The information to be given is that set out in D3.17. The written notice is required by D3.18.
359
D3.19.
360
Note 3C.
361
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.
108
VIDEO IDENTIFICATION PARADES
109
VISUAL IDENTIFICATION PROCEDURES UNDER PACE CODE D
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.” 364
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.” 365 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,366 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
self-assurance 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.” 367 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
364
Para. 7.5.
365
Para 7.6.
366
D3.14. See above, p.46, et seq.
367
Para 7.6.
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VIDEO IDENTIFICATION PARADES
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
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.”368
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
368
Para 7.7.
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VISUAL IDENTIFICATION PROCEDURES UNDER PACE CODE D
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.
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.
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VIDEO IDENTIFICATION PARADES
consultation between the identification officer and the officer in charge of the
investigation which the code requires in the determination as to the appropriate
procedure to be used.371 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.372
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.378 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. 379
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).
371
D3.11. Such consultation is required by D3.14, discussed above in C.(2)(iii), at p.84-85.
372
Annex A.15.
373
D3.17(i).
374
D3.17(ii).
375
D3.17(iii).
376
D3.17(vii).
377
D3.17(viii).
378
D3.18.
379
Ibid.
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VISUAL IDENTIFICATION PROCEDURES UNDER PACE CODE D
380
D3.1, D3.17(xiii), and Annex A.8.
381
See Bogan, op. cit., at para. 5.32, p.70.
382
Ibid., para. 5.37.
114
VIDEO IDENTIFICATION PARADES
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
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.383 It is the responsibility of the officer in charge of the investigation to
make the identification officer aware that this is the case. 384 The code contains no
express requirement for disclosure of the material at that stage. 385 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.386 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.)
383
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.
384
Annex E.9 and see Note for Guidance 3B.
385
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.
386
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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VISUAL IDENTIFICATION PROCEDURES UNDER PACE CODE D
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
view such material before any video identification procedure is carried out,
provided it is practicable and would not unreasonably delay the investigation. 387 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. 388 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.
387
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.
388
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.
116
VIDEO IDENTIFICATION PARADES
people in the same positions or carrying out the same sequence of movements.” 389
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.
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. 390 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.391 Volunteers might then be
similarly recorded in the same or similar location to avoid drawing attention to the
suspect.392 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. 393
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. 394 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. 395 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
389
Annex A.3. See above Chapter 3, C.(3)(i)(c), p.87-88.
390
Annex A.3. The reasons why identical conditions are not practicable must be recorded on forms
provided for the purpose Annex A.4.
391
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.
392
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.
393
D3.21.
394
See above Chapter 3, C.(3), pp.86-87.
395
See Bogan, op. cit., para. 5.50.
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VISUAL IDENTIFICATION PROCEDURES UNDER PACE CODE D
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.
396
See A.(4)(v) above, at p.101-102.
397
Annex A.2..
398
The change was proposed by the CPS: see schedule of proposals and HO responses.
399
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.
118
VIDEO IDENTIFICATION PARADES
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 culprit-
description strategy would require that all lineup foils would be white
males, say between 43 and 47 years old with long, dark hair. No attempt
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.”400
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
400
“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).
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VISUAL IDENTIFICATION PROCEDURES UNDER PACE CODE D
chances of the defence successfully mounting any challenge if the suspect should
happen to be identified.401 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-
description strategy is a superior method to construct an array than a suspect-
resemblance strategy.402
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
401
McKenzie, I., and Dunk, P., “Identification parades: psychological and practical realities,” in
Heaton-Armstrong, Shepherd and Wolchover (eds.), Analysing Witness Testimony, London: Blackstone
Press 1999, pp.185-186.
402
“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 suspect-
resemblance 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.
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in mind the description they previously gave to the police and that they will be
expecting to identify somebody who matches that description. 403 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
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. 404 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.” 405 Yet this can hardly provide a
justification for conducting a video identification procedure. The suggestion by
another commentator406 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
403
See Valentine, “Forensic facial identification,” para 17.24.
404
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.
405
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.
406
Bogan, op. cit., para. 5.37.
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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
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
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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.407
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. 408 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.
407
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
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.
408
See Bogan op.cit., para. 1.32, drawing attention to the risk of latent unexpressed awareness of a
particular facial feature.
409
See McKenzie and Dunk, supra, p.182.
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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
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 look-
out 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
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.
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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. 413 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
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. 414 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:
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.
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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.
417
Annex A.10.
418
Annex A.5. See below Chapter 5 for the admissibility of words and acts signifying an identification.
419
Annex A.6.
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420
Annex B.4.
421
As in Kennedy (1992) unreported, C.A. 20 March, 90/02296/Y4.
422
Annex B.5.
423
Annex A.6.
424
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).
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the participants the suspect must be asked to state the reason. 425 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
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, 426 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
425
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 co-operation
from which in protest could not conceivably justify the police resorting to one of the less desirable
statutory alternatives.
426
See Peter Burton (Head of the Imaging Unit, West Yorkshire Police Scientific Support Department)
“VIPERthe 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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129
VISUAL IDENTIFICATION PROCEDURES UNDER PACE CODE D
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
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.427
427
Wagenaar, W.A., Identifying Ivan: A case study in legal psychology, Hemel-Hempstead: Harvester-
Wheatsheaf, 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 al-
Megrahi, 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).
428
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.
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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.
(21) 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.”432
(22) Witnesses must not be reminded before or during the video identify-
cation procedure of any photograph or likeness from which they
429
Annex A9.
430
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.
431
Annex A.9.
432
Annex A.13.
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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.”433 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.”434
433
This would seem to be confirmed by reference to the contrasting provision in Annex A.14, below.
434
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 178-
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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,” 435 Annex A imports
from identification parade procedure the warning, first recommended by Devlin 436
and incorporated into law by Turnbull437 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.438
(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.439 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 440 and the Devlin Committee
193, at p.184.
435
See eg ibid, p.187.
436
Report, paras. 5.63 and 8.16.
437
(1977) 63 Cr.App.R. 132.
438
Annex A.11.
439
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.
440
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.
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441
Report, para. 5.57.
442
Roberts and Clover, [2002] Crim.L.R., p.886.
443
Devlin report, para. 5.57.
444
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.
445
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.
446
Ibid.
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during the procedure itself.447 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
person was possibly, probably or certainly the same person as previously seen. 448
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. 449
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. 450 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. 451 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.452 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.”
447
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.
448
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).
449
Bogan, para 5.57.
450
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.
451
Report, paras. 5.58-5.62.
452
Proposed by Karl Burn, Identification Officer.
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“that if they cannot make a positive identification, they should say so.”453
(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. 456 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
453
Annex A.11.
454
Bogan, op. cit., para. 5.58
455
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.
456
Annex A.11.
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individual they saw in person on a specified earlier occasion has been shown and,
if so, to identify them by number of the image. 457 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.458
(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,
rather than research, to inform their drafting.” 459 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
accuracy460 argue against such conventional wisdom, tending to urge instead that
457
Annex A.12.
458
Annex A.11
459
McKenzie and Dunk, cited above Chapter 1, n.6, at pp.187-188.
460
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.
137
VISUAL IDENTIFICATION PROCEDURES UNDER PACE CODE D
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
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.” 462
461
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 969-
993.
462
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.
138
VIDEO IDENTIFICATION PARADES
463
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, 139-
156; Cutler, B., and Penrod, S., “Improving the Reliability of Eyewitness Identification: Lineup
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.
464
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.
465
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.
139
VISUAL IDENTIFICATION PROCEDURES UNDER PACE CODE D
466
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 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.
467
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.
468
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.
140
VIDEO IDENTIFICATION PARADES
469
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).
470
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.
471
Lindsay, et al (1991) cited above at n.147, pp.741-745.
472
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.
473
Roberts and Clover (cited in Chapter 2, n.75) at p.886.
141
VISUAL IDENTIFICATION PROCEDURES UNDER PACE CODE D
142
VIDEO IDENTIFICATION PARADES
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. 476 Other research demonstrates that post-
identification feedback tends to make eyewitnesses over-confident, expressing
more certainty in their identification than may be merited.477
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.478 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
parade.479 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 long-
term 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 argued480 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,
476
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.
477
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.
478
Bogan, op. cit., para 5.47.
479
R v Willoughby [1999] 2 Cr. App.R. 82.
480
See Richardson, P.J., commentary on ibid in Criminal Law Week, CLW/99/25/04.
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VISUAL IDENTIFICATION PROCEDURES UNDER PACE CODE D
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.”
481
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.
482
See Valentine, “Forensic facial identification,”, cited above in Chapter 1, n.10, para 17.79.
483
See p.107, above.
144
VIDEO IDENTIFICATION PARADES
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).
484
D3.24 and Annex A.18. A specimen form is set out in Bogan, op. cit., Appendix C.
485
Annex A.17.
486
Annex A.18.
487
Annex A.4.
488
Annex A.7.
489
Annex A.15.
490
Ibid.
491
Annex A.16, and see D3.30 to D3.33. The detail is beyond the scope of this monograph.
145
VISUAL IDENTIFICATION PROCEDURES UNDER PACE CODE D
146
VIDEO IDENTIFICATION PARADES
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.497 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.498
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.499 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 video-
recorded
It has been suggested that unless professionally produced with discreetly
positioned cameras, video recording of the video identification procedure would
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.500 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
497
Bogan, op. cit., para. 5.54.
498
Ibid.
499
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.
500
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.
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lawful place of detention for PACE purposes and in any event the questions should
only have been asked on tape. 501 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.502 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 defendantand 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
adopted it as a “correction.” Fortunately, prosecuting counsel furnished a very
strong advice which the CPS eventually accepted.503
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 audio-
recording of the proceedings even where a solicitor is present.
501
PACE Code C11.1.
502
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.
503
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.
148
VIDEO IDENTIFICATION PARADES
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
149
VISUAL IDENTIFICATION PROCEDURES UNDER PACE CODE D
“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
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, 504 are
504
See above, p.120, paragraph captioned “Preventing non-vocal cues during the identification
process.”
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VIDEO IDENTIFICATION PARADES
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
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 video-
recording 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.
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VISUAL IDENTIFICATION PROCEDURES UNDER PACE CODE D
152
Chapter 5
153
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.506
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 Christie507 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 McKay508 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
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.
506
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.
507
Supra.
508
Supra.
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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
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.509 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. 510 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. 511 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 George512 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
509
Supra.
510
Bogan, op. cit., para. 10.41.
511
See above Chapter 4, pp.133-135.
512
[2003] Crim.L.R. 282, C.A., discussed in depth by Bogan, op. cit., paras. 10.51-10.56.
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VISUAL IDENTIFICATION PROCEDURES UNDER PACE CODE D
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
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,
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.
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157
VISUAL IDENTIFICATION PROCEDURES UNDER PACE CODE D
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
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.”517
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
517
[2001] 1 A.C., at p.487.
518
Ibid., at p.489. See also Harris, supra.
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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
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.
519
Such a failure has been likened to the dangers of a dock identification: see Maynard (1979) 69
Cr.App.R. 309, C.A.
520
See above, Chapter 3, pp.72-73.
521
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).
522
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.523
(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. 524 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.525
(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.
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and so influence the selection this may taint the porcess sufficiently to justify
exclusion or the quashing of a conviction.527
(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. 528 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.529
527
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).
528
See ibid., in which the defendant was the sole blond skinhead on display in a photograpic array in
contravention of Annex E.4.
529
See Quinn [1995] 1 Cr.App.R. 480, C.A.; Mendili [2001] EWCA Crim 757.
530
(1977) 98 Cr.App.R. 313, C.A. The topic is extensive and is considered beyond the scope of this
treatise.
531
[2001] 1 Cr.App.R. 430, H.L., followed in Harris [2003] EWCA Crim 174.
161