Identification evidence is some of the most powerful evidence in a criminal case. A witness who says "that is the person I saw committing the crime" can be very persuasive to a jury. But research shows that eyewitness identification is also one of the most unreliable forms of evidence. Mistaken identification has been a leading cause of wrongful convictions. That is why there are strict rules governing how identification procedures are carried out.
PACE Code D sets out the rules for identification procedures. It applies to all offences, not just serious ones. The Code governs how the police should carry out identification parades, video identifications, group identifications, and other methods. The key principle is fairness: the procedure must be conducted in a way that does not suggest who the suspect is to the witness.
Code D provides the rules for the visual identification of persons suspected of criminal offences. Its purpose is to ensure that identification procedures are fair and that the evidence obtained from them is reliable. Failure to follow Code D can lead to the identification evidence being excluded at trial.
Under Code D, para 2.3, the police must hold an identification procedure if a witness has identified or purported to identify a suspect, or claims to be able to do so. This obligation arises whenever a witness has seen the suspect (whether at the scene or afterwards) and claims they can recognise them. The police cannot simply rely on a witness pointing someone out in the street or in a photograph - they must conduct a proper procedure.
Whenever a witness has identified or purported to identify a person suspected of an offence, or claims to be able to do so, a visual identification procedure shall be held unless it is not practicable, or it would lead to a delay that would be unreasonable having regard to the circumstances of the case.
There are limited circumstances where an identification procedure does not have to be held. These include where it is not practicable (for example, the suspect refuses to take part), where it would cause unreasonable delay, or where the suspect has already been identified in a way that makes a formal procedure unnecessary. However, the police cannot rely on these exceptions simply because it is convenient for them. If they do not hold a procedure, they must be able to justify their decision.
If the police fail to hold an identification procedure when they should have done, the identification evidence may be excluded under s.78 PACE. The court will consider whether the failure to follow the Code makes the evidence unreliable or makes the proceedings unfair. Even if the evidence is not excluded, the failure to follow the Code can be used to undermine the credibility of the identification during cross-examination.
In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.
Even if identification evidence is admitted, the judge must give the jury a Turnbull direction (from R v Turnbull [1977] QB 224). This warns the jury about the dangers of relying on identification evidence alone and tells them to look for supporting evidence before convicting. You should always ask for a Turnbull direction if your client's case depends on challenging an identification.
When challenging identification evidence, focus on three things: (1) whether a proper procedure was held in accordance with Code D, (2) the quality of the identification (lighting, distance, duration of view, whether the witness knew the suspect), and (3) any suggestive procedures that may have influenced the witness. Any of these can weaken the identification or lead to exclusion.
Code D sets out several types of identification procedure. The preferred method is a video identification, but alternatives include identification parades (line-ups), group identifications, and confrontation (show-up) identifications. Each method has its own rules and procedures. The choice of method depends on the circumstances of the case, but the police must use the method that is fairest to the suspect.
| Method | Description | When Used | Key Rules |
|---|---|---|---|
| Video ID | Witness views video clips of suspect and volunteers | Preferred method; used when available | Must include at least 8 other people who resemble the suspect |
| ID Parade (Line-up) | Suspect stands in a line with others | If video ID not available or practical | At least 8 others who resemble the suspect; suspect chooses position |
| Group ID | Witness views suspect in a group of people | When suspect cannot attend a parade | Group must be in a public place; suspect not made to stand out |
| Confrontation (Show-up) | Witness views suspect face-to-face | Only in urgent or exceptional circumstances | Last resort; must be justified and recorded |
| Street ID | Witness identifies suspect on the street | Only for prompt identification at scene | Must be contemporaneous and spontaneous |
Video identification is now the preferred method under Code D. The suspect is filmed (usually showing different views and movements) and the video is shown to the witness alongside videos of at least eight other people who resemble the suspect as closely as possible in age, general appearance, and position in the video. The witness views all the clips and is asked whether they can identify anyone.
Video identification has several advantages over traditional line-ups. The suspect does not have to attend the police station, which reduces stress and inconvenience. The procedure is more consistent because each witness sees the same video. It also creates a permanent record of the identification, which can be reviewed later if there are any disputes about how the procedure was conducted.
An identification parade (line-up) involves the suspect standing in a line with at least eight other people who closely resemble them. The witness views the line-up and is asked whether they can identify the person they saw. The suspect is entitled to choose their position in the line-up. If the suspect refuses to take part, the police may still proceed using a different method, but the suspect's refusal can be mentioned in evidence.
If the suspect refuses to take part in an identification parade, the police can still use an alternative method. However, the suspect's refusal can be mentioned in evidence at trial, and the court may draw adverse inferences from the refusal. You should advise your client that refusing to take part may look bad to a jury, even though they have the right to refuse.
A group identification involves placing the suspect in a group of people and allowing the witness to view them. This might happen in a police station corridor, a room, or another setting. The key rule is that the suspect must not be made to stand out from the group in any way. The group should contain people who broadly resemble the suspect. This method is less formal than a parade and is typically used when a full parade is not practicable.
Group identification is generally a fallback option when video identification or a formal parade is not available. The police might use it if they cannot find enough volunteers for a parade, or if the suspect has a very distinctive appearance that makes it hard to find suitable volunteers. However, the police should not use group identification as their first choice if video or parade identification is available.
A confrontation (also called a show-up) is when the witness is brought face-to-face with the suspect outside of a formal identification procedure. This is the least reliable form of identification because it is highly suggestive - the witness is effectively being shown one person and asked "is this them?" For this reason, confrontation should only be used in urgent or exceptional circumstances.
A confrontation should only be used as a last resort. The police must be able to justify why no other method was used. If the police use a confrontation when a proper procedure could have been arranged, the identification evidence may be excluded. As a solicitor, you should always challenge a confrontation identification and ask why a formal procedure was not held instead.
A street identification occurs when a witness points out the suspect to the police in the street, usually at or near the scene of the offence and shortly after it happened. This is different from a confrontation because the police do not arrange it - it happens spontaneously. The witness simply sees the suspect and says "that's the person". The police must not arrange or suggest a street identification.
The police must not point the suspect out to the witness or take the witness to the suspect for the purpose of identification. A street identification must be entirely spontaneous on the part of the witness. If the police direct the witness to the suspect or arrange a meeting, it is not a valid street identification and the evidence may be excluded.
The police may show photographs to a witness as part of their investigation, particularly in the early stages. This is not a formal identification procedure but it can lead to a suspect being identified. If a witness identifies someone from a photograph, the police should then consider whether a formal identification procedure (video or parade) is necessary. Showing photographs is governed by Code D, para 3.
Photographs are often used as an initial screening tool, particularly when the police do not yet have a named suspect. If a witness picks out someone from a set of photographs, the police can then use that person's details to carry out further investigations, which may include a formal identification procedure. However, the initial photograph identification cannot be used as a substitute for a proper procedure if one is required under Code D.
Before an identification procedure takes place, you should explain to your client what will happen, what their rights are, and what the procedure involves. You should check that the police have followed Code D in setting up the procedure - for example, that there are enough volunteers who resemble your client, that your client can choose their position, and that the officer conducting the procedure does not know who the suspect is.
You have the right to be present at an identification procedure. During the procedure, you should observe and note anything that could be unfair or irregular. For example, if the volunteers do not resemble your client, if the witness is given hints about who to pick, or if the procedure is not conducted properly. You can raise objections at the time and have your concerns recorded on the custody record.
After the procedure, you should check that the results have been accurately recorded. If your client was identified, you should discuss the implications with them and consider whether there are grounds to challenge the identification (e.g. unfair procedure, poor quality of viewing conditions). If your client was not identified, this is a strong point in their favour, though it does not guarantee the case will be dropped.
Keep detailed notes of everything you observe at an identification procedure. Note the time, who was present, how the volunteers were selected, whether the procedure was conducted fairly, and any irregularities. These notes can be vital later if you need to challenge the identification evidence at trial. The more detail you record, the stronger your challenge will be.
There are many ways to challenge identification evidence. You can argue that the procedure was not conducted in accordance with Code D, that the conditions in which the witness saw the suspect were poor (bad lighting, brief glimpse, long distance), that the witness has been influenced by suggestive procedures (e.g. seeing the suspect's photograph in the media), or that the witness is simply mistaken. Research consistently shows that honest witnesses can and do make genuine mistakes.
Where the case against a defendant depends wholly or substantially on the correctness of one or more identifications, the judge should warn the jury of the special need for caution before convicting on identification evidence. The judge should identify the weaknesses in the identification evidence and remind the jury that a mistaken witness can be a convincing one.
Courts have repeatedly warned that it is dangerous to convict on identification evidence alone, unless there is supporting evidence. If the prosecution's case rests entirely on one witness's identification, you should argue that the case is not strong enough. Look for any evidence that supports or contradicts the identification, and highlight the weaknesses in the witness's ability to identify your client.
When the witness is also the victim of the offence, the identification process can be more emotionally charged. The victim may have a strong memory of the person who attacked them, but they may also be more susceptible to suggestion and less reliable due to the stress and trauma of the experience. The police must still follow Code D procedures, and the solicitor should be alert to any additional factors that might affect the reliability of the identification.
Research shows that high stress can actually impair memory, not improve it. A victim who was terrified during an offence may have a less accurate memory than they believe. Weapon focus (concentrating on a weapon rather than the attacker's face) is also a well-documented phenomenon. These are important points to raise when challenging a victim's identification evidence.