Identification evidence

Identification evidence in criminal investigations 

Identification evidence can be one of the most important and most contested parts of a criminal case. If a witness says you are the person they saw, or if the police believe you are the person shown on CCTV, body worn video or another image, that can have a major impact on whether a charging decision is made. At the same time, identification evidence is not always straightforward. People can be mistaken, images can be unclear, and procedures must be followed properly. 

At Olliers, we understand how distressing it can be if you are being identified by a witness or linked to an allegation through video footage or photographs. Our specialist pre-charge solicitors look carefully at how identification evidence has been obtained, whether the correct procedures have been followed, and whether there are grounds to challenge the reliability of that evidence before a charge is made. 

The Director’s Guidance on Charging makes clear that identification issues should be addressed properly before a charging decision is taken, and Code D of PACE sets out the safeguards designed to reduce the risk of mistaken identification. Where those safeguards are not followed, that can have serious consequences for the strength of the case. 

Why identification evidence matters before charge 

Before the police or CPS decide whether to charge, they should assess the available evidence and consider whether the evidential test is met. If the issue in the case is whether you were the person involved, identification evidence may be central to that decision. A weak or unreliable identification can mean the case is not ready to charge, or that there is no realistic prospect of conviction at all. 

Identification evidence can arise in a number of different ways. It may involve a witness who says they saw the offender and can identify them. It may involve a person recognising somebody shown in an image or video. It may involve recognition through social media, CCTV, body worn footage, photographs or other visual media. It can also involve descriptions of a suspect’s height, build, age, ethnicity, facial features or distinctive marks. 

Because identification can be so important, it should not be treated casually. The law recognises the danger of mistaken identification, which is why there are specific procedures and safeguards designed to test reliability and fairness. 

What is identification evidence? 

In simple terms, identification evidence is evidence that seeks to show that a particular person is the offender. Under Code D of PACE, this can arise in different ways. Part A deals with eye-witness identification, where a witness who says they saw the offender is given an opportunity to identify a suspect. These procedures are designed both to test the witness’s ability to identify the suspect and to provide safeguards against mistaken identification. 

Code D also contains separate provisions for recognition cases, where a person, including a police officer, says they recognise somebody shown in an image as a person already known to them. This is different from a classic eye-witness identification and has its own considerations. 

In practice, identification evidence may include: 

• a witness saying you are the person they saw commit the offence 
• a witness or police officer claiming to recognise you on CCTV or another recording 
• recognition through photographs or social media images 
• a description said to match your appearance 
• formal identification procedures such as video identification or other Code D processes 

Police procedures and Code D explained simply 

Code D of PACE governs the principal methods used by police to identify people in criminal investigations. It states that those powers and procedures must be used fairly, responsibly, with respect for the people to whom they apply and without unlawful discrimination. It is designed to help ensure that identification evidence is obtained in a reliable and fair way. 

The Code also requires safeguards at an early stage. For example, a record should be made of a suspect’s description as first given by a potential witness before the witness takes part in relevant identification procedures. Those safeguards matter because they help reduce the risk that memory will be influenced later by photographs, discussions or other material. 

Where identification is disputed, the charging guidance expects the issue to be assessed properly before charge. The current Olliers page correctly notes that where a dispute as to identity may reasonably be anticipated, an identification procedure should take place, and that failure to address identification promptly can lead to charging being deferred or prevented. 

Common problems with identification evidence 

One of the biggest problems with identification evidence is that it can appear stronger than it really is. A witness may feel certain, but certainty is not always the same thing as reliability. Lighting, distance, stress, the speed of events and the passage of time can all affect what somebody thinks they saw. That is precisely why safeguards exist. 

Another issue is procedure. If police do not follow the Code D framework properly, the fairness and reliability of the identification may be open to challenge. A significant and substantial breach of Code D may result in identification evidence being excluded by the court. 

We also see concerns arise where: 

• the first description given by the witness does not properly match the suspect 
• there is an unexplained delay between the incident and the identification 
• the witness claims recognition from an image which is unclear or incomplete 
• social media images or informal identifications are relied upon without proper records of what happened 
• inconsistent accounts, recordings or other material exist which may undermine the reliability of the identification 

If those issues are not addressed properly before charge, the case may be far weaker than it first appears. 

How identification evidence can help the defence 

Many people assume that once a witness says “that was him” or “that was her”, the position is hopeless. That is not necessarily true. Identification evidence can be challenged, tested and placed in context. In some cases, careful analysis reveals that the evidence is weak, inconsistent or affected by procedural failings. 

Depending on the facts, identification evidence may assist the defence by showing: 

• that the description given at the time does not match you properly 
• that the witness’s opportunity to see the offender was poor 
• that video or image quality is too limited for reliable recognition 
• that the wrong procedure was used, or no proper procedure was carried out at all 
• that there is other material capable of undermining the identification evidence which should be made available to the prosecutor 

This is one of the reasons why early legal advice matters so much. If identity is genuinely in issue, that point must be addressed properly before the case moves towards charge. 

How our pre-charge solicitors can help

At Olliers, our pre-charge team looks closely at whether identification evidence has been obtained and handled in line with the applicable rules. We consider whether the material genuinely supports a charge, whether there are weaknesses in the identification, and whether representations should be made before a charging decision is taken. 

Depending on the circumstances, we may be able to: 

• assess whether identification is truly capable of supporting a realistic prospect of conviction 
• identify breaches or weaknesses in the Code D process 
• challenge reliance on poor quality images, recordings or informal social media identifications 
• highlight inconsistent descriptions or other undermining material that should be considered before charge 
• make pre-charge representations arguing that the evidence is too weak or incomplete to justify prosecution 

Our aim is always to protect your position at the earliest possible stage, including where appropriate seeking to avoid charge altogether. 

What you should do if you are being identified 

If the police say you have been identified by a witness, or they claim you are the person shown on CCTV or another image, it is important not to assume that the case is straightforward. Identification evidence can be powerful, but it can also be unreliable or mishandled. Early legal advice can help you understand what sort of identification evidence is being relied upon, whether the correct procedures have been followed, and what can be done before a charging decision is made. 

This is especially important where identity is the main issue in the case. If that point is not approached carefully and proactively at the investigation stage, opportunities to challenge the evidence before charge may be missed. 

Frequently asked questions about identification evidence