When a defendant is tried in court for a criminal offence, the prosecution may have to prove it was the defendant who committed the offence in question. In many cases, the outcome can depend on issues of identification of the suspect.
A perennial problem exists where witnesses are genuinely mistaken in their identification of the defendant. The Police and Criminal Evidence Act 1984 (PACE) sets out strict procedures for the identification of suspects by witnesses – particularly under Code D of PACE.
There are four different identification procedures available before the trial begins (in the order of preference for use by the police):
Where positive identification takes place in accordance with law and procedure, the evidence is admissible as prior out-of-court statements.
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, such as a scar or tattoo, 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 must as far as possible have the same sequence of movements for all people.
The features of this 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, this should be concealed in so far as possible.
The parade 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. The witness is told, beforehand, 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.
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.
This involves a direct confrontation between the witness and the suspect and would usually take place at a police station where the witness would normally be asked: “Is that the person?” However, force is not allowed to be used to make the suspect’s face visible to the witness.
All four of the above 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.
The formalities of these procedures under Code D ofare vital in so far as the admissibility of the identification evidence at trial is concerned. Where there is any doubt as to the police’s compliance with the rules, the fairness of the evidence becomes questionable and it may not be admissible.
A minor breach of the provisions would not automatically render the evidence inadmissible. However, a combination of a number ofminor 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.
Sometimes, identification is not possible before trial. In court, eyewitness identifications are also known as dock identifications and are rarely allowed. The reasoning is that there is no great difficulty to pick out the person standing rather obviously in the dock, so such identification lacks strength. The defendant’s rights to a fair trial are likely to be violated in these cases.
However, where the accused has refused to attend a parade, and the other prescribed forms of identification procedure were not possible, dock identification may be permissible. Exceptions include road traffic offences where it has to be proved who the driver of the vehicle was at the time of the offence.
Nicola is a dual qualified journalist and non-practising solicitor. She is a legal journalist, editor and author with more than 20 years' experience writing about the law.
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