Identification Procedures — SQE1 FLK2 Criminal Law and Practice

A woman sees a man punched to the ground in the street and calls the police. She describes the attacker as tall, in a dark tracksuit. An officer walks to a nearby alley, finds a man answering that description, and brings him back to her. Holding him by the arm, the officer asks her: is this the man who did it? She says yes. Will that identification be admitted at his trial? Probably not.

She did not pick him out. An officer selected him, brought him to her under restraint, and invited her to confirm what he plainly already believed. Everything about that encounter told her this was the suspect. Identification Procedures, and the rules that exist to stop exactly that. Keep her in mind. We are coming back.

Here is the route. Why the law distrusts identification evidence at all. Then the rule that decides whether a procedure has to be held. Then what happens when the police get that wrong. Then the four methods, in order of preference, and what your client is entitled to at each. Then photographs. And last, what the judge has to tell the jury.

Start with why any of this exists. A witness who says that is the person I saw is about as persuasive as evidence gets. It is also among the least reliable evidence there is, and mistaken identification has been a leading cause of wrongful convictions. Hence Code D, which governs the visual identification of suspects. One principle runs through all of it. The procedure must not suggest to the witness who the suspect is.

Now the rule that decides everything else, and it is paragraph 3.12. Two limbs. One: a witness has identified or purported to identify the suspect, or expresses an ability to identify the offender. Two: the suspect disputes being the person that witness claims to have seen. Both present, and a procedure must be held.

There are two escapes, and only two. Where a procedure is not practicable. Or where it would serve no useful purpose in proving or disproving whether the suspect was involved. Convenience is not on that list. Nor is a shortage of volunteers, nor the fact that the officer is already sure.

Work the limbs. A woman watches a man punch someone outside a pub, for about two minutes, under street lighting. She has never met him and says she would know him again. He is arrested and says she must have seen somebody else. Both limbs are satisfied, nothing makes a video identification impracticable, and a procedure must be held.

Now change it. A barman watches a man punch someone outside his bar and could identify him. The man arrested accepts that he is the man in the grey jacket the barman saw, but says the other man lunged first and he acted in self-defence. No procedure is required. Identity is not in dispute at all. The argument is about self-defence, and a viewing could prove nothing about that.

And here is the one candidates get wrong in the other direction. A witness who has already picked the suspect out in the street has not made a procedure pointless. That is R v Forbes, from 2001, where the House of Lords held paragraph 3.12 to be mandatory. Under controlled conditions the witness might fail to pick him out, and that failure would be worth a great deal to the defence.

So what happens when the police should have held a procedure and did not? Not automatic exclusion. A breach of the Code does not make identification evidence inadmissible. What it gives you is section 78 of PACE. The court may refuse to allow prosecution evidence where admitting it would have such an adverse effect on the fairness of the proceedings that it ought not to be admitted. That is judged on all the circumstances, including how the evidence was obtained.

Discretionary, then, but a required procedure that was never held is a weighty circumstance. It is worse where a dock identification replaced it. The witness is invited to pick the defendant out of the one place in the courtroom where he was always going to be. And even if the evidence survives, the breach is cross-examination material for the rest of the trial.

The methods now, and they run in order of preference. Video identification first. Then a parade. Then a group identification. Then confrontation, which is the last resort. The police must use the method that is fairest to the suspect, and they cannot drop down the list because the one above it is inconvenient.

Video identification is the one your client will normally be offered. Moving images of the suspect are shown alongside images of at least eight other people who, so far as possible, resemble him. The witness is told the person may or may not be there, and views the whole set twice before deciding. Nothing is said to indicate which image is the suspect.

Two refinements worth marks. If the suspect has an unusual feature, a scar, a tattoo, a birthmark, it can be concealed on his images or replicated on everybody else's. An unusual appearance never makes video identification impracticable. And normally only one suspect appears in a set. Two suspects of roughly similar appearance may be shown together, but then at least twelve other people are required, not eight.

A parade is the same idea in a room. At least eight people in addition to the suspect, who so far as possible resemble him in age, height and general appearance. The suspect chooses his own position in the line. The witness is told the person may or may not be there. And the officer conducting it must not know which one is the suspect, so that no cue can be given, consciously or otherwise.

A group identification puts the suspect among people in a public place, a station concourse at midday being the classic example. The rule that matters is that the suspect must not be made to stand out. Walk him onto the concourse between two uniformed officers and the witness can pick him out without recognising him at all. That is not an identification. That is a pointing exercise.

Confrontation is last, and it is last because it is the most suggestive thing the police can do. One man, shown to one witness, with the implicit message that this is him. It is permitted only where none of the other procedures is practicable. A witness stabbed in her home, in intensive care, not expected to survive the night and unable to be moved, is the kind of case that justifies it.

Which brings back our woman in the street. Was that a street identification? No. A street identification is one the witness makes spontaneously, pointing the suspect out at or near the scene, and the police must not arrange it. This officer chose the man, fetched him, held him by the arm and asked her to confirm. That is a confrontation, and it was not a last resort. A video identification could have been arranged.

Photographs next, and they are an investigative tool rather than a procedure. Code D still controls them. The witness must be shown not less than twelve photographs at a time, all so far as possible of a similar type. Only one witness views at a time. And nothing may be said or done to suggest which of them is the suspect.

So an officer who opens a single photograph on his phone and asks whether that is the man has breached the rules several times over. It is also self-defeating. From then on the witness may be recalling the photograph rather than the burglar, and any later identification is worth correspondingly less. Where photographs are shown properly and the suspect then disputes identity, a formal procedure still has to follow.

Now your job at the procedure. Five things to check, and the first happens before anyone views anything. A record must be made of the description the witness first gave. A copy must be provided to the suspect or the solicitor, where practicable, before any procedure is carried out.

Second: you are entitled to see the complete set of images before any witness sees it, and to object. If the objection is reasonable, that the others look nothing like your client, steps must be taken to remove the grounds for it if that is practicable. A set shown to the witness while you are still at court has denied your client that safeguard.

Third: check who is running it. The identification officer must be of at least inspector rank and not involved with the investigation. The detective who interviewed your client that morning is disqualified, however careful he intends to be.

Fourth: a representative may attend the viewing on the suspect's behalf, and where none attends, the viewing itself must be recorded. An officer who says you can wait outside and read his note afterwards is offering neither. And fifth: witnesses must be kept apart. Two shop assistants who sit in the waiting room agreeing that the robber had a hooked nose have contaminated both identifications before either has viewed anything.

Two smaller points that turn up. If your client refuses to take part, he cannot be forced. But the refusal may be given in evidence at his trial, and the police may proceed covertly or make other arrangements. And where the suspect is a juvenile aged 14 or over, the consent of both the juvenile and a parent or guardian is required. Under 14, the parent or guardian consents alone.

Last, the trial. Even where the evidence is admitted and the procedure was faultless, the judge has work to do. Where the case against the defendant depends wholly or substantially on the correctness of a disputed identification, R v Turnbull, from 1977, requires a warning.

The judge must warn the jury of the special need for caution before convicting in reliance on it. He must explain why: that a mistaken witness can be a convincing one, and that a number of honest witnesses can all be mistaken. He must examine closely the circumstances of the original observation. And he must point to any evidence capable of supporting the identification, and to the weaknesses in it.

Then the sting in the tail. Where the quality of the identification is poor, and there is no supporting evidence, the judge should withdraw the case from the jury altogether. Poor means a fleeting glimpse, or a longer look in difficult conditions. Two or three seconds, at 20 metres, at night, under intermittent street lighting, with nothing else against the defendant. That is a submission of no case to answer waiting to be made.

And the factors that decide quality are the ones you already have. How long the witness watched. From how far. In what light. Whether she was frightened. Whether a weapon held her attention instead of his face. How long between the sighting and the viewing. And whether anything came between them, a photograph in a news report, a conversation with another witness.

One more thing about Turnbull, because judges get it wrong and so do candidates. It applies to recognition as well as to identification of a stranger. A witness who has seen the man around her college most days for two years may well be more reliable. But the jury must still be reminded that mistakes in recognising even friends and relatives are made.

A word on how SQE1 tests this. You will not be asked to name a case or quote a paragraph number. You get a scenario, five answers, and one instruction: pick the best one. So learn the rules, and how they decide facts. The names in this episode are memory pegs, nothing more.

If you keep only three. Paragraph 3.12, because whether a procedure was required is the first question in almost every one of these problems. R v Forbes, because a street identification does not answer it. And R v Turnbull, for what the judge must say, and for when the case should never reach the jury at all.

Four traps the examiners set. One: a breach of Code D does not exclude the evidence. It gives the court a discretion under section 78. If an answer says the evidence must be excluded because the police broke a mandatory requirement, it is wrong, however serious the breach.

Two: denying the offence is not the same as disputing identity. The duty bites where the suspect disputes being the person the witness saw. A man who admits he was there and says he acted in self-defence is not disputing that, so no procedure is required.

Three: watch for the police arranging what they later call a street identification. A genuine one is spontaneous. If an officer selected the man, fetched him, or pointed him out, it is a confrontation, and confrontation needs everything else to be impracticable first.

Four: do not let a good procedure distract you from a bad viewing. A faultless set of images cannot improve a two-second glimpse across a dark car park. Quality of the original observation and compliance with the Code are separate questions, and the exam tests both.

Quick check. A shopkeeper is robbed at knifepoint. He tells the police the robber is a man who has come into his shop two or three times a week for the past three years. They chat about football. He would know him anywhere, though he has never learned his name. Officers trace him. In interview he accepts he is that customer, denies the robbery, and says he was at work that morning.

Does the shopkeeper's prior acquaintance remove the need for a procedure? Three candidate answers. One: no, a procedure is required unless the witness can give the suspect's name. Two: no, he denies the robbery, and that dispute must be tested at a procedure. Three: yes, he is well known to the shopkeeper, so a procedure would serve no useful purpose. Pause here if you want a moment.

The answer is three. The duty does not arise where a procedure would serve no useful purpose, and the Code's own example is the suspect already well known to the witness. He has seen the man two or three times a week for three years, and the man accepts he is that customer. Asking him to pick a familiar face out of a set of images would prove nothing.

Why the others fail. One invents a condition: knowing the name has never been the test. Two makes the classic mistake. What is disputed is not who the shopkeeper knows, but whether that man committed the robbery, and no viewing answers that.

Five things to take away. One: a procedure must be held where a witness can identify the suspect and the suspect disputes being that person, unless it is impracticable or serves no useful purpose. Two: video identification first, then a parade, then a group identification, and confrontation only when nothing else will do.

Three: a breach of the Code does not exclude the evidence; section 78 gives a discretion. Four: at the procedure, check the first description, the set, the officer's independence, your attendance, and that witnesses are kept apart. Five: where the case turns on a disputed identification the judge must give a Turnbull warning, and a poor unsupported identification should be withdrawn from the jury.

And our woman in the street? She was never asked to identify anybody. She was asked to agree. Ask who chose the man before you ask what the witness said. Next time, Advising on Police Questions and Interviews.

Practise this topic with exam-style questions at sqe1prep.co.uk. This episode is for education and exam revision only, not legal advice, and we are not affiliated with or endorsed by the SRA or Kaplan.