When a defendant denies being at the scene of the crime, or committing the offence, the burden will be on the prosecution to prove (beyond reasonable doubt) it was the defendant who committed the offence.
The prosecution may, therefore, seek to rely on identification evidence to support its case against the defendant. Whether or not the identity of a suspect is known, the police may rely on formal identification procedures.
When can identification procedures be used?
The law on the visual identification of suspects and the required procedures are set out in Code D Para 3.12 of the Police and Criminal Evidence Act (PACE)1984, where a witness formally identifies the suspect. Suspects and other detained people, and members of the public have the right to consult Code D at the police station – it must be readily available.
Types of identification procedure
There are four types of identification procedure under the Code. These are designed to test the witness’ ability to identify the suspect as the person they saw on a previous occasion; and to provide safeguards against mistaken identification. These procedures relate to:
- Video identification
- Identification parade
- Group identification, and
The Code requires that video identification should take priority (Code D Para 3.14). However, if video identification is not practicable, or an identification parade is more practicable and suitable than video identification, then an identification parade can instead take place. It is advisable for a suspect to agree to such identification methods, otherwise their refusal may lead to adverse inferences being drawn in court, and the police can use less favourable methods of identification such as confrontation.
Video identification involves the witness being shown moving images of the suspect, together with moving images of eight other people who resemble the suspect. The resemblance should be in terms of age, general appearance and position in life. If the suspect has an unusual physical feature such as a scar or tattoo which does not appear on the other people used in the images, efforts should be made to conceal the location of the feature on the image of the suspect or replicate the feature on the other people.
An identification parade is where the witness sees the suspect in a line of others who resemble the suspect. The investigating officer is not allowed to be present. PACE requires that the identification parade should consist of at least eight people who resemble the suspect in age, height, general appearance and position in life. Where the suspect has an unusual physical feature which cannot be replicated on other members of the parade, steps can be taken to conceal the location of the feature on the suspect and the other members if the suspect and his solicitor agree.
When the suspect is brought to the location of the identification parade, they will be asked if they have any objections to the arrangements or the participants in the parade. The suspect can choose their position in the line. Before a witness attends the identification parade, arrangements should be made so that they cannot:
- Communicate with each other about the case
- See any member of the identification parade
- See or be reminded of any photograph or description of the suspect, and,
- See the suspect before or after the identification parade
A video recording or colour photograph must be taken of the identification parade.
Group identification is where the witness sees the suspect in an informal group of people, but outside of the controlled environment of police station identification, for instance, at a railway station or shopping centre. The location chosen should be one where other people are passing by or waiting informally – in groups – so that the suspect is able to join them and be seen by the witness at the same time as others in the group.
Group identification can take place with or without the suspect’s consent.
Confrontation can be used where none of the other options are available and must take place in accordance with Code D. In this case, the witness is taken to the suspect and asked whether the suspect is the person in question. The suspect’s consent is not required before this can take place.
Excluding identification evidence
The police must use their powers and procedures under Code D fairly, responsibly, and with respect for the people to whom they apply – without unlawful discrimination. For this reason, identification evidence can be excluded under section 78 of PACE if there were breaches of PACE committed during the identification procedure.
Under section 78, the court has discretion to exclude evidence on which the prosecution relies if the admission of evidence would have an adverse effect on the fairness of proceedings. Usually, the court will only exercise this discretion if there have been serious and substantial breaches of PACE which renders the evidence unreliable.
Note that the requirements of Code D apply to police officers who are identification witnesses in the same way as it applies to any other witness.