Identification Evidence and Procedures

Background to identification evidence 

  • In criminal procedures for a person to be found guilty of an offence all elements of the offence need to be proven by the Prosecution and further it must be proven for the jury to be sure that it was the Defendant who committed the offence. Therefore, in a number of cases the biggest issues turn to be based on identification and possible mistakes as to who did the act alleged or complained of.

  • The Government have for numbers of years recognised the problems related to witnesses being genuinely mistaken in their identification of the Defendant. Further, the issue is exacerbated due to the fact that a mistaken witness could be a convincing one when put before a jury.

  • In response to those troubles, there are prescribed ways in which the link between the accused and the crime can be established. In broad terms there are two situations- where the accused is identified by a person giving live evidence at court or where the accused is being identified before the trial begins.

Identification at court

  • In court eyewitness identifications are also known as dock identifications. Those should and are generally rarely allowed. The reasoning behind such rule is that there is no great difficulty to pick out the person standing rather obviously in the dock. Therefore, such identification lacks strength.

  • Further allowing a dock identification where there has been no other previous identification by that person would go against the principles for conducting out of court identification as detailed below. However, where the accused has refused to attend a parade, dock identification may be permissible.

  • Exceptions to that general rule are road traffic offences where it has to be proven who the driver of the vehicle was at the time of the offence. Generally, there is no dispute as to who was the driver but a failure to call any evidence to address that issue would likely result in an acquittal. 

Identification before the beginning of the trial

Currently there are four different identification procedures for before the trial begins:

  1. Video identification

  2. Identification parade

  3. Group identification

  4. Confrontation identification 

  • Those appear in the order of preference for use by the police. And the essence is that they are all conducted in less-prejudicial circumstances than a dock identification.

  • Identification procedures and positive identification in the course of such are on their face out of court statements. However, they are admissible as prior consistent statements.  

  • The procedures and their conduct are governed by the Codes of PACE (Police and Criminal Evidence Act 1984). In particular of importance are Code D and the annexes under it addressing the individual procedures. 

Video identification

  • In a video identification, the witness is shown a set of images of the suspect and at least eight other people who need to resemble the suspect in general appearance and position in life. If there are two suspects of roughly similar appearances they may be shown together with at least twelve other people.

  • If the suspect has an unusual physical feature like a scar or tattoo etc, steps may be taken to conceal the location of the feature on the images of the suspect or replicate that feature on all other images.

  • The images shown may be moving or still but shall as far as possible have the same sequence of movements for all people. 

Identification parade

  • The features of that procedure are roughly the same as above in that again the suspect is involved and eight other people but they are arranged in a line-up. The same principles apply to their physical resemblance to the suspect. The suspect is allowed to choose their position in the line. If there is an unusual feature of the suspect, such should be concealed in so far as possible.

  • Such procedure could be conducted in a normal room or in a room equipped with a screen hiding the witness.  

  • In both video identification and ID parade, only one witness is to look at the images/line up at any one time. Before the procedure the witness is told that the suspect may not appear in the images/line-up and if they cannot make any positive identification they should say so. They are advised to look at each person/image individually and not to make a decision before they have seen the full set of images as least twice or until they have considered them carefully.

Group identification 

  • This procedure is less formal in that the suspect is put into an informal group of people. It could be conducted with or without the consent of the suspect. The place used should be one where other people are either passing by or waiting around informally.

Confrontation identification 

  • That procedure involves a direct confrontation between the witness and the suspect.

  • This will usually take place at a police station where the witness would normally be asked ‘Is that the person?’ However, force may not be used to make the suspect’s face visible to the witness. 

All four can be used where the identity of the person is known to the police and he is available. However, where there is no dispute as to identification an identification procedure would not generally be necessary.

Identification and admissibility 

The formalities of the procedures as defined by Code D of PACE are of extreme importance to their admissibility in the trial. There is a clear necessity for all the individual elements to be complied with or otherwise the fairness of the evidence to the Defendant becomes questionable.

Upon numerous judicial considerations of the principles, it is clear that a minor breach of any of the provisions would not automatically render the evidence inadmissible. However, a combination of a number minor or significant of breaches could have that effect if the judge is of the opinion that if admitted it would adversely affect the fairness of the proceedings.