Identification Officers' Guide to Recent Judicial Decisions.

The Codes of Practice require that the first consideration of the identification officer, who must be a uniformed inspector, is to conduct an identification parade if the suspect "asks for one and it is practicable to hold one." A parade must also be held "if the officer in charge of the investigation considers that it would be useful, and the suspect consents". Recent cases show how all too often identification officers are persuaded or pressurised into forging ahead towards a group identification or confrontation.

Any breach of the Code's provisions is likely to have important evidential consequences at a trial. The Courts have shown themselves willing to exclude improperly obtained identification evidence by the use of s.78 Police and Criminal Evidence Act 1984, (PACE). This is not to say that all evidence of identification has to be obtained as a result of a formal parade or, necessarily in accordance with Code D since paragraph 2.17 concerns cases where the identity of the suspect is not known.

In R v Long [1991] Crim. L.R. 453, police officers had taken the registration number of a motor car which they had previously chases for an offence of reckless driving (now dangerous driving again, s.2 Road Traffic Act 1991). The appellant subsequently attended the police station to report his car as being stolen. While he was at the counter the officers came into the station and recognised him as being the driver of the car they had chased. This is pure recognition and did not justify the evidence being excluded under s.78. However the Courts have drawn a fine line on recognition and the practicability to hold a parade as can be seen by the cases.

In R v Samms [1991] Crim. L.R. 197, officers witnessed an attempted theft and circulated the description of the suspects involved. The defendants were arrested by other officers and then seen by the observing officers in the station whilst being booked in. This was effectively a confrontation in circumstances where it had not been shown impracticable to hold a parade or group identification, and led to the evidence of the identification being excluded.

In R v Brown [1991] Crim. L.R. 368, the victim was robbed by a man whom she saw in limited street lighting only for the last few seconds of the assault. Some ten minutes later she made a positive identification of the robber who was walking in the street. The court stated that Code D, paragraph 2.1 is mandatory, failure to hold a parade when the defendant requests one is a breach of Code D.

In R v Kelly [1992] Crim.L.R. 181, "K" was convicted of attempted rape. The victim was walking home when she was dragged to the ground. "K" was disturbed and the police were called. As she was talking to the police she saw "K" and said, "I think that's him." While "K" was being questioned, the victim was brought nearer to him, where the light was better. She confirmed he was the attacker.

On appeal it was argued that "K" should have been arrested immediately and been given the benefit of a properly conducted identification parade, and, moreover, the identification in this case amounted to a "street identification" (Group). In short the correct "pecking order" had not been followed.

Held, dismissing the appeal, when a complainant made a tentative identification within minutes of her ordeal but in light and at a distance which made identification difficult, the natural and sensible reaction was to take her closer for a better look.

The situation was covered by the case of Oscar [1991] Crim.L.R. 778, in which a witness saw a man wearing distinctive clothing, attempting to break into premises. The police were called and a few minutes later the defendant was arrested nearby, crouching behind a car. The witness immediately recognised the defendant.

In R v Fergus (1991) The Times, 11 November 1991, the victim claimed to recognise his assailant as a person whom he did not know well but had seen just a few times before. The Court of Appeal held that it must be treated as evidence of identification and not recognition. In such a case an identification parade should be held and the prosecution should not be allowed to make a dock identification. The bottom line is that there is a difference between recognition and identification and where a victim does not know the offender well - an identification parade should be held.

In R v Ryan [1990] Crim.L.R. 50, the only evidence of identification was that "R" was recognised by a female witness as the brother of a classmate. She said she had seen him at the school gates on two or three occasions. No identification parade had been held. "R" was convicted. The Court of Appeal dismissed the appeal and expressed the view that in cases of personal recognition rather than identification, it would be rare for the Court to interfere.

It had been submitted that if the Court felt there should have been a parade and that its absence was fatal to the conviction, they would be laying down a principle that, whenever there was a dispute between witnesses and a defendant as to whether there was or was not a previous acquaintance, there had to be a parade. Their Lordships said they were not laying down any such principle.

In R v Nagah (1991) 92 Cr.App.R.344, "N" was in custody suspected of attempted rape. He had agreed to go on an identification parade if necessary. No parade was held and he was released on the ground that there was insufficient evidence to charge him. a "street identification" (Group) was held on the basis that the accused was no longer a suspect at a police station. This was, to use the term preferred by the Court, "arranged" by the police. The victim was brought to a lane close to the police station. About 25 people were seen to go in and out of the station. "N" was picked out by the victim. He was subsequently identified by a van driver at a formal parade. It was submitted by the defence that the street identification was inadmissible under s.78 of PACE since it was in breach of Code D.2. The Judge overruled the submission, holding that "N" was not a "suspect" at a police station, thus Paragraphs D2. 1 to 10 did not apply.

Held, allowing the appeal, under the circumstances a street (Group) identification was neither permissible nor appropriate. There had been a clear breach of the Code. The suspect could have been invited to remain or come back at a time to be arranged, there had been a complete flouting of the Code.

In R v Penny (1992) 94 Cr.App.R. 345,"P" who had been arrested for robbery agreed to stand on an identification parade. On the date arranged it was found that there were insufficient volunteers to form it. The inspector in charge decided it was impracticable to hold a parade and proposed a "street identification" (Group) instead. "P" and his solicitor agreed. A street identification was carried out and "P" was identified. At the trial the Judge overruled a defence submission that there had been a breach of Code D.2. The inspector was not called; his written statement was accepted. "P" was convicted.

Held, dismissing the appeal, the Judge was entitled to exercise his discretion under s.78(1) of PACE, having regard to such matters as getting witnesses to attend on another day. Further, a street identification though less satisfactory than a parade did not necessarily operate to the disadvantage of a suspect; and there was no improper conduct on the part of the police, and no attempt to get round the provisions of the Code. Thus the Judge was correct, not the least because "P" and his solicitor were content that "P" should take part in a group identification, Nagah, above distinguished.

In R v Conway (1990) 91 Cr.App.R.143, "C" was charged with wounding with intent, with a knife. It was the prosecution case that the two identifying witnesses knew "C", although his name was provided to them after the incident by a third party who was not called as a witness. When "C" was seen by police, ten days after the attack he denied being present at the scene and denied knowing the two witnesses.

The next day he requested an identification parade when appearing at a formal hearing and was remanded in custody. His solicitor took the opportunity to inform the CPS representative that his client wanted a parade. That request was reiterated in a letter the following week. The police stance, (perhaps on the authority of Ryan, was that: "an identification parade does not take place if we have a named person". By that they meant a person whom a witness purported to recognise.

The result of the failure to hold an identification parade was that when the committal proceedings took place both witnesses were, despite objections from the "C"'s solicitor, permitted to make a dock identification and purported to identify "C".

Held, allowing the appeal, failure to hold a parade was a breach of para. 2.3 of Code D which deprived him of the opportunity of properly putting to the test the crucial issue of whether or not the witness knew him. Their Lordships distinguished Ryan, saying that the case depended upon its own particular facts, and did not lay down a principle.

In R v Gall (1989) 90 Cr.App.R. 64, a witness attended an identification parade. The investigating officer brought the witness to the parade, knocked, spoke to the inspector in charge, looked at him, left the room and shortly afterwards the witness entered. The Court of Appeal allowed the appeal, referring to the Judge's statement, "that the appellant might well feel considerable suspicion about what might be going on at an identification parade if an investigating officer came into the parade room and, then had an opportunity of talking to a witness who was introduced to the parade."

In R v Thorne [1981[ Crim.L.R. 702 (CA), the suspect arrived at the police station accompanied by his solicitor and another man. The solicitor wanted the other man to be one of those taking part in the identification parade. The police officer refused. After argument the the police officer took the view that the suspect was refusing to be put on a parade and eventually the suspect was identified at a confrontation. The suspect was convicted of handling stolen goods: he appealed on the ground that the identification had been unsatisfactory.

Held, dismissing the appeal, it was a matter for the police to select the people who were to take part in the parade. It was manifest that there were considerable opportunities to divert the course of justice if suspects were able to bring their own panel, or even part of the panel.

Thorne should be read in the light of subsequent, albeit Crown Court cases. In R v Gaynor [1988] Crim.L.R. 242, Liverpool Crown Court, evidence that a witness had picked out the accused at an identification parade was excluded under s.78 of PACE. The inspector had decided it was not practicable to hold a parade on the grounds that there were insufficient volunteers of the same racial origin as the accused. The least that could have been done, it was held, "was to give those acting on behalf of the defendant at least 24 hours to enable him to obtain a pool of suitable volunteers", there being no great urgency involved. This appears to contradict Thorne.

Another case, that of Britton and Richards [1989] Crim.L.R. 144, Leeds Crown Court, involved two afro-Caribbean youths, one of whom sported "dread locks". Both agreed to take part in identification parades and were bailed to appear at different police stations after 12 and 11 days respectively. However on each occasion the police had experienced difficulty assembling the parade. Confrontations were proposed.

Both defendants were represented. One solicitor requested a week to try to find enough suitable people; the other accepted a confrontation. The identification officer refused on the grounds that Thorne had ruled against such involvement by the defendant. Confrontations were held. It was held, in relation to both defendants that the identification evidence should be excluded under s.78 Pace as the Codes of Practice made a parade obligatory once requested unless it was impracticable, and similar with group identifications.

As stated in the commentary, in respect of the defendant who accepted a confrontation, this goes further than Gaynor above, and may be taking it too far, why should the identification officer act for the defendant when he has a solicitor present? It is a fact that in some areas persuading members of the public to stand on a parade is very difficult. Thorne was distinguished on the grounds that, in that case the police had sufficient numbers to hold a parade and the defendant was seeking to substitute them with someone of his own choice.

S.78 was again the basis of excluding identification evidence in R v Ladlow, Moss, Green, and Jackson [1989] Crim.L.R. 219, Exeter Crown Court. There were 21 suspects in a case involving violent disorder. Since this would have necessitated over 200 identification parades it was decided that the most practicable method would be confrontations.

The Judge held, that although reasons of impracticability precluded holding of identification parades, there was no reason why group identification should have been considered practicable.

In R v Grannell (1989) 90 Cr.App.R. 149, a house was being burgled when the owner returned. She observed the driver and was able to note the car number, colour, and make. An original identification parade was aborted because the identification officer decided the appellant's size and stature would tend to make it unfair. A month later she picked him out at a group identification. She in fact was positioned in the cafeteria at the Court and picked him out from persons passing through the foyer.

He was convicted and appealed on the grounds that the subsequent identification had been in breach of Code D since the correct procedure had not been followed. His appeal was dismissed, the Court of Appeal conceded that there had been breaches of Code D para 2.7, it was important that the Codes be observed, nevertheless what was equally important was to see whether any unfairness resulted from that breach.

The Courts have said that not every breach of the Codes by police officers is fatal to the evidence, in R v Delaney (1988) 88 Cr App. R. 338, Lane LJ; said, "However, the mere fact that there has been a breach of the Code did not of itself mean that evidence had to be rejected. It was no part of the duty of the Court to rule a statement inadmissible simple to punish the police for failure to observe the provisions of the Codes of Practice". The important factor as stated in Grannell above is Courts will exclude if unfair.

Rob Jerrard

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