Identification procedures

Introduction

This article looks at two specific issues relating to formal identification procedures.

Firstly, in what circumstances should the prosecution accede to a defence request, made following charge, for an identification procedure (IP) to be carried out where there has been no challenge to the accuracy of an earlier identification during the suspect’s pre-charge detention?

Secondly, during the course of a video identification procedure, is the identification officer permitted to show a witness all nine still images together after the witness has twice viewed each moving image separately?

Background

The following scenario provides a typical illustration of the first issue.

A suspect is arrested and taken to the police station, having been seen committing an offence by a witness who has identified him/recognised him as the offender. The suspect makes no comment in interview. His legal advisers do not indicate to the police there is any dispute about the identification of the suspect.

The suspect is charged and, following the sending hearing, his legal advisers assert that the correctness of the identification is in dispute and ask that an IP be arranged.

In relation to the second issue, the integrity of some IPs have been called into question by defence legal advisers who have expressed reservations as to the lawfulness of a witness viewing all nine images together, after having twice viewed each image separately.

Legal framework

Code of Practice D; General Points

The rules governing how and when a visual IP must take place are set out in Code of Practice D. The current version is the 2005 edition, which applies to any IP carried out after midnight on December 31, 2005.

The Code does not purport to limit the holding of any form of visual identification procedure to the pre-charge stage. Accordingly such procedures can be carried out either before or after charge, applying the same rules set out in the Code.

The Code provides discretion to the officer in charge of the investigation enabling him to hold an IP if he considers it would be useful (D3.13). However the Code places an obligation on the police to hold an IP in two circumstances (D3.12):

• Where a witness has identified a suspect or purported to have identified them prior to a procedure having been held and the suspect disputes being the person the witness claims to have seen.

• Where an available witness believes they can identify the suspect or there is a reasonable chance of them being able to do so, and the suspect disputes being the person the witness claims to have seen.

In neither circumstance should the procedure be carried out where it is not practicable or would serve no useful purposes (D3.12).

The obligation to hold an IP is triggered when the suspect disputes being the person the witness claims to have seen. Previous editions of the Code used the trigger phrase ‘whenever the suspect disputes an identification made or purported to have been made by a witness’. For all practical purposes, however, there is no difference in meaning between the two.

Disputed identification

The trigger phrase set out in D3.12 is not amplified or defined in the Code. However the courts have considered the phrase and its predecessor on a number of occasions and the following principles emerge from the case law.

The entitlement to an IP arises not only when there is an actual dispute as to identification, but also to cases where such a dispute might reasonably be anticipated (R v Rutherford and Palmer 1994 98 C.A.R at Page 191).

A simple denial of guilt, concealing as it might, a defence of duress or an admission of presence but a denial of participation, will not, in the absence of any formal request for an IP, give rise to a reasonable anticipation that identity is in dispute (R v McCartney Hamlett and others 2003 EWCA Crim 1372).

The same hold true in relation to a no comment interview which is neither an admission nor a denial (R v McCartney, Hamlett and others).

A suspect must make some positive ass