Obtaining Identification Evidence
Eye witness identification although beneficial is plagued with difficulties in relation to its reliability. In order to properly supervise and oversee police procedure in relation to identification evidence you must be knowledgeable of Coe D of PACE and its annexes. If your client fails to comply with an identification procedure or provide an intimate body sample, an adverse inference may be drawn. If identification evidence is obtained in breach of Code D it can be challenged under 78 of PACE but this does not mean that exclusion will be automatic.
During police investigation, as well as a witness statement the police will also obtain a description of the likely suspects from eye witnesses. The police will also make a photo fit of the suspect and circulate it around the media. Types of identification procedures include video identification, identification parades, group identification and confrontation by a witness. Video identification is the preferred first choice as it is less intimidating for the witness. Video identification and ID parades are also considered to be more favourable to the suspect as they provide the highest chance of not being picked out. Whichever ID procedure the police chose to use there are specific safeguards that must be considered.
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- Video identification Annex A: A witness must be shown a set of video images including the suspect and eight others who must resemble the suspect in age, height and general appearance. Steps must be taken to conceal any distinguishing features the suspect may have. The suspect's solicitor must be given an opportunity to attend the ID suite where the video is being compiled. The witness should see all the images at least twice and asked whether the suspect as identified is the person see on a previous occasion.
- Identification parade-Annex B: The parade should include at least eight people including the suspect who must all be similar in appearance. Witnesses attending the parade must not be allowed to speak to each other. The suspect may choose his own position in the line. The witness will be asked to identify the suspect and confirm that they are the same person that they saw on a previous occasion.
- Group Identification Annex C: This can be held with or without the suspects consent and it is usual for the witness to be taken to a public place to identify the suspect amongst a group of other people. A colour photo should be taken immediately after identification and the suspect's solicitor or friend may be present.
- Confrontation by a witness Annex D: Usually through a one way screen at a police station, the witness is asked,' Is this the person you saw on the earlier occasion'
An eyewitness can be shown photographs when there is no known and available suspect in mind. An ID procedure must be held where the suspect disputes being the person that the witness has seen unless it is not practicable or it would serve no reasonable purpose in proving or disproving the suspect was involved in the offence. Code D 3.12
Where code D has not been complied with in obtaining identification evidence this does not result in automatic exclusion under s 78 PACE but the court must decide whether the prejudicial effect of the evidence outweighs its probative value.
In R v Finley 1993 Crim LR 50 the defendant was implicated in a robbery and a video ID procedure was held where he was identified by one witness. However the other images in the parade were significantly different to the suspect and the witnesses had been kept to together and allowed to discuss matter prior to the selection. The ID procedure was therefore held to be highly prejudicial.
Other forms of ID evidence
- Fingerprints and footwear impressions: the power to obtain these are contained in s 61 of PACE 1984. They may be taken at the police station with the suspects consent or without consent where the suspect is arrested or detained in relation to a recordable offence
- Photographs: s 64 A PACE allows a photograph to be taken of any person at a police station with and without consent.
- Non intimate sample: s 65 PACE allows for non intimate samples to be taken from client including pubic hair and mouth swabs with consent or without if the suspect has been arrested and detained for a recordable offence or has been charged
- Intimate sample: also defined by s 65 and includes blood and urine. Can only be taken with consent although failure to consent without good reason can be used against the defendant.
- DNA evidence : is almost conclusive evidence but is open to error, cross contamination or deliberate tampering by prosecuting authorities therefore its ultimate evaluation is again a matter for the jury or magistrates.