#13793 - Identification And Confession Evidence - BPC Criminal Litigation (formerly BPTC) 2024/2025

Identification Evidence

Admissibility of Identification Evidence

• Admissible as hearsay under CL per s118(3)(c) CJA 2003.

Types of Identification Evidence (CCTV, Images etc)

1. Aural

2. Visual

3. Video

4. Scientific (E.g. fingerprints, HST, DNA)

5. Rose LJ in AG’s Reference No 2 of 2002 held there are four other methods of ID:

   1. Where image is clear, jury can compare to D in the dock;

   2. Where W knows D well enough he can identify him off the photo;

   3. Expert who has studied the photos;

   4. Facial Mapping Expert

When is a VIPER (Video Identification Parade) necessary?

Code of Practice D

• Code D:3 applies “When an eye-witness has seen the offender committing the crime or… close to the scene of the crime, immediately before or after it was committed”.

• A procedure MUST be held under D3.12 where

  • W purports to identify them prior to procedure, and is available to do so and

  • D disputes his involvement.

Procedure:

1. W's first impressions must be noted (D(3.1)). (To identify people for the VIPER parade, and for use with later discrepancies). This record must:

   1. Be made and kept in a form which enables details of that description to be accurately produced from it, in a visible and legible form, which can be given to the suspect or the suspect’s solicitor in accordance with this Code; and

   2. unless otherwise specified, be made before the witness takes part in any identification procedures (Identification procedures are listd under paragraphs 3.5 to 3.10, 3.21 or 3.23.).

• A copy of the record shall where practicable, be given to the suspect or their solicitor before any of the identification procedures are carried out

Hierarchy of Identification Procedures

Where suspect is known to police & available (immediately, or reasonably short time, AND willing):

• KNOWN - Sufficient information to justify arrest (i.e. "reasonable grounds for suspicion")

• AVAILABLE - Now or soon.

1. Video Identification Parade

   • It may be held where it would be "useful".

   • A video identification procedure shall be held unless

     • it is not practicable or

     • it would serve no useful purpose in proving or disproving whether the suspect was involved in committing the offence

       1. Suspect’s Identity isn’t known - EG: Abbot says it’s not necessary when dealing with mere descriptions (eye colour, clothing etc) rather than culprit's identity (Marsh v DPP)

       2. If W makes plain to police couldn't identify culprit;

       3. If culprit is well known to W, futile to hold parade.

   • If D refuses the identification procedure first offered, he will be asked to state his reason for refusing and may get advice from his solicitor and/or if present, his appropriate adult. The suspect, solicitor and/or appropriate adult shall be allowed to make representations about why another procedure should be used. A record should be made of the reasons for refusal and any representations made.

   • After considering any reasons given, and representations made, the identification officer shall, if appropriate, arrange for the suspect to be offered an alternative which the officer considers suitable and practicable. If the officer decides it is not suitable and practicable to offer an alternative identification procedure, the reasons for that decision shall be recorded.

   • Voice Identification Parades fall outside of Code D per D1.2 - Home Office Circular “Advice on Use of Voice ID Parades” - CANNOT do a live voice ID, and officer should take 20 representative samples similar to D’s, and then 8 foils and 1 suspect. It is irrelevant if they talk differently.

   • The Rules of Video Parades - Code D, Annex A

     • A(a)(2) holds that there are 8 foils and 1 suspect. (So TOTAL of 9)

     • A(a)(2A) holds that other photographs should mirror anything distinctive about D (hair, tatoos, scars etc)

     • A(a)(7) should be allowed to object to any photos.

     • A(b)(10) Witnesses should not be able to communicate with each other before they see the images.

     • A(b)(11) Only one witness at a time. Can pause images. Must see the whole set of images twice before decision.

     • A(b)(13) Care must be taken not to DIRECT WITNESS’S ATTENTION nor REMIND of any description.

2. Still Images

   1. If Identification Officer does not consider a physical feature can be replicated, or concealed on the image of suspect. May thus use still images. (Annex A(2A))

   2. Minimum of 12 photos must be shown with no maximum.

   3. Can't happen simultaneously, even in separate rooms because as soon as one identification is made, the suspect is no longer unknown and then CANNOT show photos any longer - must proceed to ID parade.

3. Identification Parade

4. Group Identification (Informal Sightings in Park/Street etc)

Suspect Known and Unavailable

• The identification officer can arrange a covert procedure; video or group identification. Officers can use photographs or videotapes of suspects detained at police stations for the purposes of identification.

• Video walking down corridor handcuffed to police officer. Repeat with 8 other men, similar... VIPER but cover!

• This may be a breach of Art 8 but this unlawfulness is only relevant to whether fair trial is infringed.

• A staged confrontation between the eyewitness and the defendant is a method of last resort but is permitted where the suspect is known but unavailable. It is not permitted where the suspect is known and available.

• No "right" to a confrontation with the witness.

Dock Identifications?

• NB: Judge has discretion to allow a dock identification, but rare due to alternative procedures for unavailable suspect (covert). Judge should consider whether it will imperil fair trial of accused. W may well presume D is correctly identified by being a fortiori in the dock. AND must warn that D has been deprived of opportuntiy of having ID parade, which if an inconsistency materialised could've supported his case.

• Not a breach of Art 6 if properly directed per Holland v HM Advocate.

What about where suspect's identity is not known?

1. Take them back to the crime scene on a "Drive Around" per D3.2

   • Record made of W's description before asking W to make identification (D(3)).

   • Care must be taken not to direct the witness’ attention to any individual unless, taking into account all the circumstances, this cannot be avoided. However, this does not prevent a witness being asked to look carefully at the people around at the time or to look towards a group or in a particular direction, if this appears necessary to make sure that the witness does not overlook a possible suspect simply because the witness is looking in the opposite direction and also to enable the witness to make comparisons between any suspect and others who are in the area;

   • Where there is more than one witness, every effort should be made to keep them separate and witnesses should be taken to see whether they can identify a person independently;

   • The officer or police staff accompanying the witness must record, in their pocket book, the action taken as soon as, and in as much detail, as possible.

   • The record should include: the date, time and place of the relevant occasion the witness claims to have previously seen the suspect; where any identification was made; how it was made and the conditions at the time (e.g., the distance the witness was from the suspect, the weather and light); if the witness’s attention was drawn to the suspect; the reason for this; and anything said by the witness or the suspect about the identification or the conduct of the procedure (Para 3.2 Code D).

2. Photographs/eFits

   1. A witness can be shown photographs, computerised or artist’s composite likenesses or similar likenesses or pictures (including ‘E-fit’ images) if the identity of the suspect is unknown to the police. Where suspect's identity is known, photographs must not be shown!

Breach of Code D?

Quinn - Quashed conviction for breaches of Code D and for judge failing to refer to the breaches in summing up - s78 PACE.

Cases depending WHOLLY or SUBSTANTIALLY on disputed Identification Evidence

Qualified Identifications?

Where W “Isn’t quite sure” or “Is 90% sure” it is qualified. D cannot properly be convicted on qualified identification per George. However, a qualified identification may be bolstered by other corroborative evidence.

Turnbull Directions:

NOT appropriate if D disputes the truthfulness of the identifying witness, rather than accuracy.

Two questions for jury:

(1) Is witness honest?

(2) Is witness reliable/accurate?

Turnbull Directions

Three limbs to Turnbull Directions (3 Cs)

1. Special Need for CAUTION - Even honest witnesses can make mistakes;

2. CIRCUMSTANCES - Have regard to distance, lighting, familiarity, obstructions etc. Judge should remind jury of any specific weaknesses. Entitled to say one identification supports another provides he warns jury a number of honest witnesses may be mistaken.

3. CORROBORATIVE - What corroborative evidence is there to support?

Turnbull Guidelines

Duty to withdraw case where not convincing i.e. “fleeting glimpse” unless there is other evidence to support the correctness of the ID, such as:

1. PNC;

2. Possession of Incriminating Articles;

3. False Alibis;

4. D's Lies;

5. D's Silence when questioned;

6. Confessions;

7. Scientific Evidence;

8. Other Bad Character Evidence

If P has any reason to believe there is any material discrepancy between the first description of suspect and D's actual appearance, P should...