Advising clients at the police station - Types of identifica...

Learning Outcomes

This article provides an in-depth understanding of the procedures and legal framework governing police identification procedures, necessary for effective client advice at the police station in line with the SQE1 syllabus. It details:

• The circumstances necessitating the holding of a formal identification procedure when the identity of the suspect is disputed.
• The structure, sequence, and substance of the main identification procedures established under PACE Code D: video identification, identification parade, group identification, and confrontation.
• The rationale behind each procedure, including their respective advantages, limitations, and when each is likely to be employed.
• Key safeguards embedded in the operation of each method to ensure procedural fairness and reduce wrongful identification.
• The rights bestowed upon suspects during identification procedures, including access to legal advice and presence of legal representatives.
• The responsibilities and strategic considerations for legal advisers representing clients asked to participate in identification procedures, with a particular focus on addressing procedural irregularities and potential avenues for challenging the reliability of identification evidence.
• How significant breaches of Code D may render identification evidence susceptible to exclusion under s 78 of PACE 1984, including the applicable legal tests and practical examples.
• Key principles concerning adverse inferences drawn from a suspect's refusal to engage in an identification procedure where relevant.

SQE1 Syllabus

For SQE1, you are required to understand police identification procedures under PACE Code D in the context of police station advice, with a focus on the following syllabus points:

• Circumstances under which an identification procedure must be conducted pursuant to PACE Code D.
• The four main types of identification procedure and the rules applicable to each, including procedural steps and participant rights.
• The role, powers, and duties of the identification officer, as distinct from investigating officers.
• The importance and process of providing suspects with adequate information about their rights and the procedures involved.
• The scope and function of legal representation during procedures, including raising and recording objections.
• The grounds and processes for challenging identification evidence, especially when procedures have been breached.
• The significance of the standard of proof, the allocation of evidential and legal burdens where identity is in issue, and the intersection with defences.
• The impact of evidential issues such as contamination and segregation of witnesses.
• The relevance of principles from key authorities, such as R v Turnbull, where visual identification is in dispute.
• The practical consequences if a suspect refuses to participate in identification or is unavailable.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. Under PACE Code D, which identification procedure is generally preferred and must be offered first, assuming it is practicable?
   1. Group identification
   2. Confrontation
   3. Identification parade
   4. Video identification
2. A witness identifies a suspect known to them from school five years ago, but the suspect disputes this recognition. Must an identification procedure be held?
   1. No, because the witness claims to know the suspect.
   2. Yes, because the suspect disputes the identification and being known to the witness.
   3. No, because five years is too long for a reliable recognition.
   4. Yes, but only if the suspect consents.
3. Which of the following is NOT a right of a suspect during a formal identification parade?
   1. To have a solicitor present.
   2. To choose their own position in the line-up.
   3. To object to other members of the parade if they do not resemble the suspect.
   4. To demand the procedure be video recorded instead.
4. If the police breach PACE Code D significantly when conducting an identification procedure, what is the likely legal basis for challenging the admissibility of the identification evidence at trial?
   1. PACE 1984, s 76 (Confessions)
   2. PACE 1984, s 78 (Exclusion of unfair evidence)
   3. Hearsay rules
   4. Bad character rules

Introduction

The process of determining the correct identity of a suspect underpins the integrity of the criminal justice system. Mistaken eyewitness identification remains a leading cause of miscarriages of justice. To prevent such errors, the Police and Criminal Evidence Act 1984 (PACE) and, in particular, Code D, establish a structured framework for formal identification procedures. These safeguards are designed not simply to facilitate police investigation, but to protect suspects from unfairness, ensure evidential reliability, and uphold the fundamental principles of justice. Within this context, legal advisers must be able to identify, explain, and act upon the relevant requirements, both to protect their client’s rights and to ensure any identification evidence is properly obtained and robust against challenge.

When an Identification Procedure Must Be Held

PACE Code D, at paragraph 3.12, sets out a mandatory requirement for an identification procedure in certain circumstances. An identification procedure must be arranged:

• Where an eyewitness has identified, or purports or claims to be able to identify, a suspect, and
• The suspect disputes being the person the witness claims to have seen committing the alleged offence, or otherwise disputes being known to the witness, and
• The eyewitness has not previously been given an opportunity to identify the suspect via a formal procedure.

In such cases, a formal procedure "shall be held unless it is not practicable or would serve no useful purpose in proving or disproving whether the suspect was involved."

Key Term: Known Suspect
A suspect whose identity and personal details are known to the police and who is available to participate in an identification procedure.

The Code provides specific examples of cases where a formal procedure may serve no useful purpose—such as when the suspect admits to being present and their account matches what the witness describes, or where the suspect is already well-known to the witness (e.g., they are relatives, close acquaintances, or have an ongoing relationship). However, where there is room for dispute—such as distant or historical contact, limited prior interaction, or where the witness's recognition is in doubt—a formal identification procedure must be provided to test the reliability of the witness’s claim.

Key Term: Identification Officer
An officer, usually of the rank of inspector or above, not connected with the investigation, charged with overseeing and administering identification procedures in compliance with Code D.

Suspects who refuse to participate, or who are not immediately available, may have procedures continued without their participation, and refusal may lead to adverse comment at trial or the use of less controlled alternatives.

Key Term: Covert Identification Procedure
An identification procedure carried out without the suspect’s knowledge or consent, typically used where the suspect refuses to participate or is unavailable.

Significantly, any identification already made by a witness informally (e.g., on the street or from a photograph) does not displace the requirement to offer a formal procedure. Instead, the reliability of the earlier identification is tested by subsequently arranging one of the approved procedures.

Types of Identification Procedure

PACE Code D authorises four principal types of formal identification procedure, ranked in a hierarchy reflecting their reliability and practicality.

Video Identification (VIPER)

PACE Code D establishes video identification procedures as the preferred method.

Key Term: Video Identification
A procedure in which a witness is shown moving or still images of the suspect and at least eight other individuals (foils), all of whom should resemble the suspect in key respects (age, general appearance, position in life, etc.), for the purpose of determining if the witness can identify the suspect as the perpetrator.

Salient features include:

• Selection of Foils: For a single suspect, there must be at least eight foils, all closely resembling the suspect in appearance. Where two suspects of similar appearance are shown together, at least twelve foils must be used.
• Standardisation: Each image or video must present the individuals in similar positions, undertaking comparable movements, under identical conditions.
• Replication or Concealment of Distinctive Features: If the suspect has an identifying feature (e.g., scars, tattoos), efforts must be made to either replicate that feature on all other foils or conceal it on all images.
• Procedural Safeguards: Only one witness may view the set of images at a time; witnesses must not communicate with each other or be reminded of the suspect’s description before the procedure.
• Instructions to Witness: The witness must be told that the person they saw may or may not be present among the images and that they should not feel compelled to make an identification.
• Access for Solicitor: The suspect’s solicitor is entitled to preview the images in advance and to raise any reasonable objection to the composition.
• Recording: Every objection or irregularity must be documented, and the procedure itself is usually recorded or logged in detail by the identification officer.

Video identification is often less confrontational, minimises the risk of suggestion, and can be convened swiftly, making it particularly appropriate when witnesses are vulnerable, in poor health, geographically remote, or where arranging a live parade would cause substantial delay.

Identification Parade

When video identification is not practicable, an identification parade (sometimes called a line-up) may be convened.

Key Term: Identification Parade
A formal, supervised occasion where the suspect stands, in person, within a line of at least eight other people (foils) who closely resemble the suspect in height, age, general build, ethnic origin, and other relevant features, and the witness attempts to pick out the perpetrator.

Key principles include:

• Parade Composition: As with video procedures, foils must resemble the suspect, and any distinguishing features must be addressed.
• Witness Segregation: Witnesses must be brought to the parade one at a time, should not have seen or communicated with other witnesses, and must not know if or how previous witnesses identified anyone.
• Suspect’s Rights: The suspect may choose their position in the line and may change position between witnesses; they may be accompanied by a solicitor or a friend, who can observe but not participate.
• Witness Instructions: Witnesses are informed that the perpetrator may or may not be present and are required to observe the parade twice before making an identification.
• Documentation: The entire procedure should be video or photographically recorded to preserve the record and to defend against later challenges.

Group Identification

Group identification enables a witness to observe a suspect within an informal group of people in a public location.

Key Term: Group Identification
A procedure in which the suspect is observed by the witness as part of a group in a public place (for example, at a train station or shopping centre), either with the suspect’s consent or, if necessary, covertly and without their participation. The witness is asked to identify the perpetrator from within the group.

Key considerations:

• Location: The venue must be such that there are enough people present—other than the suspect—to prevent the suspect from standing out. Those present should resemble the suspect so far as is practical.
• Witness Handling: Critical that the witness and suspect do not interact, that the witness does not overhear identification by others, and that segregation is strictly maintained.
• Covert Group Identifications: If the suspect refuses to participate or is unavailable, identification officers may observe the suspect among a group without the suspect’s knowledge, bringing the witness covertly.
• Legal Rights: Although the procedure may be arranged without consent, the suspect’s rights—including legal advice and notification—are protected wherever possible.

Confrontation

A measure reserved for cases where none of the above procedures are feasible, confrontation involves presenting the suspect directly to the witness.

Key Term: Confrontation
A method of identification in which a witness is brought face-to-face with the suspect, usually at the police station, in controlled circumstances for the purpose of testing the witness’s ability to recognise the suspect as the offender.

This is used only where all other identification methods are impractical. Safeguards include:

• Last Resort: Should only be used if video ID, parade, and group identification are all impracticable, delayed, or have been refused by the suspect.
• Presence: The suspect’s solicitor, interpreter, or friend should be present unless this would cause undue delay.
• Recording: The confrontation is recorded, and the witness is explicitly warned that the person may or may not be the perpetrator.
• High Risk: Due to the potential for suggestibility, confrontation is recognised as the least satisfactory method and may attract robust scrutiny in court.

Photograph Identification and Street Encounters

While not formal identification procedures under Code D, it is worth recognising that suspects may initially be identified from photographs, e-fit images, or via unsupervised street encounters. In such cases, if a positive identification is made, a later formal identification may still be required to test reliability, and procedures must comply with the requirements of Code D’s annexes to ensure fairness. Any deviation may affect evidential weight or admissibility.

Key Term: Segregation of Witnesses
The process of ensuring eyewitnesses do not discuss or communicate before, during, or after identification procedures, to avoid contamination or influence, as strictly required under Code D.

Suspect's Rights and Solicitor's Role

PACE Code D ensures that suspects are guaranteed substantive and procedural rights, enhancing both fairness and evidential reliability.

• Notification and Explanation: The identification officer must inform the suspect about the nature, purpose, and procedure to be followed; provide advice about the right to legal representation; and explain the possible consequences of participating, refusing, or obstructing the procedure.
• Right to Legal Advice: The suspect has the right to consult a solicitor in private before the identification procedure and to have their legal adviser, or a friend, present during the actual procedure (except in cases of strictly covert or last-resort operations where delay would be unreasonable).
• Objection and Representation: The suspect or their solicitor is entitled to view the line-up (whether in person or video form) and to raise objections about the selection and similarity of foils, which must be recorded and, where reasonable, remedied.
• Record of Initial Description: The initial witness description of the suspect given to the police must be retained and disclosed to the suspect or their representative prior to an identification procedure, to allow for assessment of discrepancies.
• Advising on Consent: Where the suspect maintains their innocence, legal advice will often be to participate in the identification procedure, as refusal may lead to adverse inference or the use of less controlled measures such as covert group identification or confrontation. If the client is guilty and wishes to avoid strengthening the identification evidence or fears further charges, the advice will differ based on strategy and risk.
• Fitness to Participate: The solicitor should ensure the client is physically, mentally, and practically able to participate without unfairness or undue stress (for example, if the client is vulnerable, an appropriate adult may be needed).
• Request for Special Arrangements: The solicitor may request additional safeguard if, for instance, the suspect has a medical condition or vulnerability that could unfairly impact the identification process.

Solicitors must vigilantly monitor for any procedural inconsistencies, including the risk of suggestiveness, inadequate foils, witness contamination, or improper instructions from the identification officer. Any such concerns must be raised at the earliest opportunity and fully recorded.

Worked Example 1.1

A witness briefly saw a person commit a theft and described them as tall with blond hair. The police arrest David, who is short with dark hair. David denies the offence. The police propose a video identification procedure using images of David and eight foils who match David's appearance (short, dark hair). David's solicitor objects, stating the foils don't match the witness's original description.

Answer:
No. The foils are correctly selected to match the suspect's appearance, not the initial witness description. The rationale is to avoid the suspect standing out among the foils. The identification officer is correct to proceed as planned, while ensuring that the solicitor's objection is officially recorded.

Role When Breaches Occur

Where the procedure is conducted in breach of Code D (for example, witnesses discuss their views before attending, or foils are inadequately matched), the solicitor should insist that the objection and the specifics of the breach are noted on the official record and, where possible, challenge the admissibility of the evidence. The solicitor should remind both officers and client to avoid any conduct or comments that could undermine the fairness or credibility of the procedure.

Key Term: Vulnerable Suspect
A suspect who, due to age, mental health, or other vulnerability, requires additional safeguards (such as the presence of an appropriate adult) to ensure the reliability and fairness of the identification process.

Consequences of Breaching Code D

The courts have a statutory and common law discretion to exclude identification evidence when there is evidence that the procedure was not conducted in accordance with PACE Code D, and the breach is significant or substantial.

Key Term: Exclusion of Evidence (s 78 PACE)
Under s 78 of the Police and Criminal Evidence Act 1984, the court may refuse to admit prosecution evidence if, considering all the circumstances (including how it was obtained), admission would have such an adverse effect on the fairness of proceedings that it should not be admitted. This commonly arises in the context of serious breaches of Code D.

To determine whether to exclude, the court will consider:

• Whether the breach was significant and substantial,
• If the breach created a risk of unreliability or suggestiveness in the identification,
• Whether the police could have avoided the breach,
• The overall fairness to the accused.

If identification evidence is obtained following a procedure tainted by serious deviation from Code D—such as contaminated witness communication, parade participant disparity, or denial of solicitor access—the defence has strong grounds to challenge the admissibility via s 78.

Prosecutors and courts are reminded that identification evidence, especially that which is primary to the prosecution case, is considered inherently susceptible to error, and reliability is key. The judge must carefully direct the jury (a Turnbull direction) if the case substantially depends on such evidence.

Moreover, the Court of Appeal has found that exclusion under s 78 is not automatic for every breach; only significant, substantive deviations are likely to tip the balance.

A suspect's refusal to participate can itself be adduced at trial, allowing the court to draw an adverse inference; the risk is that the trier of fact may infer the refusal was out of fear of positive identification.

Worked Example 1.2

Police arrange an identification parade for a robbery suspect, Ahmed. Ahmed's solicitor is present. Witness A views the parade and identifies foil number 3. Witness B is then brought in but overhears Witness A stating, "It was definitely number 3." Witness B then identifies Ahmed (number 7), apparently influenced by what they have overheard. Ahmed’s solicitor objects and ensures this is noted.

Answer:
There has been a serious procedural breach: witnesses must be strictly segregated and prevented from influencing each other. Witness B's identification is contaminated. The defence can argue for the exclusion of Witness B’s identification evidence under s 78 of PACE 1984, on the grounds that the breach undermines fairness and reliability.

Worked Example 1.3

A witness to a theft provides an initial description, is later shown photographs and makes a positive identification of the suspect from these. The suspect denies involvement. The investigating officer proceeds to charge the suspect rather than offer a formal identification procedure.

Answer:
This is a breach of Code D. After a positive identification from photographs, Code D requires the suspect be given the opportunity for a formal identification procedure so the reliability of the photographic identification can be tested in the preferred format (e.g., video identification). Failure to do so constitutes a significant breach of procedural safeguards and may jeopardise the admissibility of the identification evidence.

Key Point Checklist

This article has covered the following key knowledge points:

• Identification procedures are a mandatory safeguard under PACE Code D when identity is disputed by the suspect and a witness claims to identify them.
• The main types of procedure are: video identification (preferred), identification parade (if video not practicable), group identification, and confrontation (last resort).
• Each procedure mandates strict rules under Code D, including selection and similarity of foils, segregation and independence of witnesses, care with distinguishing features, and full disclosure of the initial description.
• Suspects have procedural rights: notification, legal advice, presence of legal adviser/friend (except covert procedures), ability to object, and safeguards for vulnerability or capacity.
• Refusal to participate can result in less satisfactory identification procedures being used, and adverse inferences may be drawn at trial.
• Breaches of Code D (e.g., poor composition, contaminated witnesses) can lead to exclusion of the evidence under s 78 of PACE 1984 where fairness is compromised.
• Defence solicitors play a key role: strategic legal advice, demanding compliance, raising and recording objections, and safeguarding the integrity of the evidence.
• The court is responsible for rigorous oversight, including giving a Turnbull direction to the jury where the case substantially depends on disputed visual identification.

Key Terms and Concepts

• Known Suspect
• Identification Officer
• Video Identification
• Identification Parade
• Group Identification
• Confrontation
• Covert Identification Procedure
• Segregation of Witnesses
• Vulnerable Suspect
• Exclusion of Evidence (s 78 PACE)