Identification evidence under the Director of Public Prosecution’s Guidance on Charging 2020
The Director of Public Prosecution’s Guidance on Charging (31st December 2020) provides a clear structure in which criminal allegations are investigated and prosecuted. Defence teams must have a detailed working knowledge of the Guidance as part of a proactive pre-charge engagement strategy.
This page focuses on Identification evidence
The significance of the Guidance for defence teams
The Olliers Investigations Team place huge emphasis in monitoring the police and their compliance with the Guidance as part of our proactive approach to pre-charge work.
We look to engage with police at an early stage of an investigation. We always consider whether we can make representations against charge, by arguing that there is not a ‘realistic prospect of conviction’ or that it is not in the public interest to prosecute. The Guidance was published on the same day (31st December 2020) as the arrangements for ‘pre charge engagement’ (Annex B Attorney General’s Guidelines on Disclosure 2020).
Director of Public Prosecutions Max Hill QC;
‘There has been a major shift in working practices and priorities throughout the criminal justice system in recent years and it is vital there is clear guidance to help police and prosecutors navigate these effectively.
‘The Attorney General’s guidelines focus on getting disclosure right and getting it done early so its impact on the evidence is known. These are significant changes and we must continue to work collaboratively to embed them.’
At Olliers we regard the Guidelines as a powerful resource during the pre charge engagement process.
The pre charge relevance of Identification evidence
Identification evidence can be the most important feature of a criminal case. Our investigation team will always ensure that the guidance below is adhered to.
The guidance applies where the identification of an offender is an issue. Identification is based on either a visual identification by a witness (Part A) or identification via visual media (Part B). It is intended to support decision making. The guidance is not definitive and prosecutors and investigators are required to be familiar with current law and policy in relation to identification.
The procedure by which police should obtain identification evidence to prove/disprove the suspect’s identity as the person involved in a crime is set out in Code D of PACE 1984. A significant and substantial breach of Code D may result in identification evidence being excluded by the court.
Identification evidence could include, recognition by a witness who knows suspect, or who knows them but does not know their name, recognition of a suspect from video recorded evidence of an incident, identification of a suspect via social media, a description of a suspect (their height, build, age, ethnicity, facial features, distinctive marks such as tattoos).
Investigators must assess all available evidence including any defence or explanation raised by the suspect and any other information to determine whether identification is an issue in the case must be assessed before a decision to prosecute is taken.
A failure to answer questions under caution does not mean that identification does not still have to be proved or that it is an issue. An identification procedure should take place, if a dispute as to identity may reasonably be anticipated.
Identification issues should be addressed at an early stage of an investigation, where evidence of the offender is an issue.
An explanation must be provided in Threshold cases where it is possible to resolve identification issues within the PACE clock. Failure to assess identification issues promptly could mean that a charging decision is deferred or cannot be made at all.
In all Full Code cases, key evidence must be available at the point of charge, this includes identification evidence where disputed.
Part A – The suspect disputes being the person identified by a witness
Statements (or video recorded interviews) must be provided as part of the charging referral and should contain the information required in accordance with The Turnbull Guidelines allowing a proper assessment by the reviewing lawyer.
- details of first descriptions of suspects,
- whether the witness description matches the suspect and whether is there a material discrepancy, between the description given and actual appearance of the suspect,
- time lapse between original observation and subsequent identification (with an explanation),
- suspect’s home address, connections to the area, other information which may provide a connection between suspect and the offence location.,
- whether identification has been put to the suspect in interview.
In recognition cases witness statements should address:
- how long witness has known suspect,
- the nature of their relationship with the suspect,
- how often the witness has seen the suspect and in what circumstances,
- when witness last saw the suspect,
- whether the suspect’s appearance has changed since last seen,
- how suspect’s name is known to witness.
In street identification cases, the referral needs to include details of first descriptions of suspect and statements from identifying witnesses and officers dealing with the initial identification.
In cases where photographs are shown to identification witnesses (where the identity of suspect is not known) the referral must include:
- a record of the showing of the photographs to identification witnesses including anything said by witness,
- statements from the officers conducting the procedure, detailing their rationale for the procedure; how photographs were selected and what was said to identification witness before; during and after procedure.
In cases involving social media identification (prior to a formal identification or even prior to police involvement) additional information is required. Police officers and prosecutors must refer to the most recent guidance in this area to ensure the correct issues are addressed.
Any additional information regarding the circumstances of the social media identification must be made available to the prosecutor for the purposes of a charging decision. This should be included in the statement of the identifying witness, supplemented by police statements or further. Police officers keep proper records of the steps taken when investigating such an informal identification. The referral should include copies of the social media image(s) seen by the witness.
The referral should contain a record of decisions about holding an identification procedure.
In all cases where an identification procedure has taken place, the referral must include:
- statements from identification witnesses dealing with the I.D. procedure,
- statements from member of police staff conducting viewings with witnesses,
- the contemporaneous record of the conduct of the identification procedure to include anything said by the witness about the identification and the conduct of the procedure,
- a record of (i) whether the defendant, was shown the set of the images before it was shown to any witness (ii) representations made and how these were dealt with; (iii) whether the suspect’s solicitor was given the opportunity to attend a video identification and any representations and decisions made in this regard.
In appropriate circumstances the referral should include:
- a record of reasons for decision to make arrangements for a non-co-operation identification procedure,
- a record of the reasons for the decision to use an existing image of suspect in circumstances where appearance of suspect has significantly changed (since the occasion when the witness claims to have seen the suspect),
- a record of the action taken to deal with has unusual physical feature/characteristics and the record of requests by witness to view image(s) without concealment/replication.
Where identification is disputed and a decision is made not to conduct any formal identification procedure, a record must be made of the reason for the decision.
Part B – A suspect disputes being the person on an image/footage
Where an image of the offender is captured on any visual medium, including footage of the offender committing the crime, or footage of the offender in other circumstances which tend to prove or disprove their involvement in the crime. The referral must include:
- a copy of the image,
- a copy of the visual recording from which the image was made,
- statements from police officers who are not eye-witnesses viewing the image for the purposes of recognising the offender; and a copy of any record on which such a statement is based,
- any image(s) have been shown to the public through national and local media to include details of whether any witness has stated after an identification that they have seen such an image,
- any facial mapping/imagery evidence; if not yet available that this should be confirmed in the referral with details of the timescales for completing this inquiry.
Any material that may be capable of undermining the identification evidence must be made available to the prosecutor at the point of referral. This will include any inconsistent accounts provided by the identifying witness, accounts by other persons, visual recordings, or other information capable of casting doubt on the identification, or impact on reliability and credibility.
Information and material relating to identification of a suspect and identification procedures should be retained and recorded for service as evidence or accessed for disclosure purposes served evidence in the case or assessed to determine if it meets the disclosure test under CPIA.
The Guidance recognises ‘the overarching principles’ set out in Sir Brian Leveson’s review of ‘Efficiency in Criminal Proceedings’, the most important of which is perhaps the concept of ‘getting it right first time’
Police officers and prosecutors must comply with this Guidance to ensure that charging decisions are fair and consistent, and comply with the Police and Criminal Evidence Act, the PACE Codes of Practice, and the Code for Crown Prosecutors (“the Code”). As the police get to grips with the Guidance it is inevitable that mistakes will be made. Failure to follow the Guidance may risk cases failing or decisions being subject to legal challenge.
The guidance is issued by the DPP for police use, but the provisions apply equally to other investigators where cases are prosecuted by the CPS
At Olliers we recognise the importance of defence teams being at least as familiar with the obligations upon the police as are their police counterparts.