ID procedures

Question 1

the legal burden

Answer 1

the requirement to prove an element of your case to a prescribed standard (eg beyond reasonable doubt)

Question 2

the evidential burden

Answer 2

The burden to raise some evidence to satisfy the judge that the matter should be argued before the jury. Usually on the party with the legal burden (so usually the prosecution).

Question 3

Main 4 visual ID procedures

Answer 3

video identification
identification parade
group identification; and confrontation by an eye-witness

Question 4

When is a visual ID procedure most useful?

Answer 4

when the suspect claims they were not involved - helpful to see if the victim or witnesses can visually identify them

Question 5

Aim of visual ID procedures

Answer 5

(a) test the reliability of the eyewitness’ identification
(b) provide safeguards against mistaken identification.

Question 6

Why must the police keep a record of the suspect’s description as first given to them by a potential witness?

Answer 6

because it could be useful at trial if there are discrepancies between the description and the suspect’s appearance

Question 7

When should a visual ID procedure take place?

Answer 7

If:
(a) an offence has been witnessed, and an eye-witness:
- Has identified a suspect or purported to have identified them
- Is available who expresses an ability to identify the suspect; or
- Has a reasonable chance of being able to identify the suspect; or

(b) The suspect disputes being the person the eye-witness claims to have seen

Question 8

When would an ID procedure NOT be necessary?

Answer 8

(a) when the suspect admits being at the scene of a crime and gives an account which does not contradict what the witness saw; and
(b) when it is not disputed that the suspect is already known to the witness;
(c) not practicable;
(d) not useful in proving/disproving whether the suspect was involved

Question 9

Which ID procedure should initially be offered?

Answer 9

video identification

Question 10

Who decides which type of procedure will be offered to the suspect?

Answer 10

the investigating officer in conjunction with the identification officer

Question 11

Which ID procedure is a last resort?

Answer 11

confrontation

Question 12

Confrontation by an eye-witness procedure

Answer 12

a witness is brought face-to-face with a suspect in the police station

Question 13

Before a witness is shown any photographs, what must be recorded?

Answer 13

the witness’ first description of the suspect

Question 14

If the suspect’s identity is known and they are available, the ID procedures that can be used are:

Answer 14

• Video identification
• Identification parade
• Group identification

Question 15

How does VIPER procedure work?

Answer 15

• Officers film the suspect asking them to face the camera and be filmed from the right, left and centre.
• The identification officer, suspect and legal representative select lookalikes from over 10,000 video clips on the VIPER system
• A moving video clip is produced with the suspect placed amongst at least 8 other individuals who, so far as possible, resemble the suspect in age, general appearance and position in life

Question 16

Where two suspects of roughly similar appearance are shown in the same images, they must be shown together with at least

Answer 16

12 other people

Question 17

What steps can be taken if the suspect has an unusual physical feature e.g. a facial scar, tattoo, distinctive hairstyle or hair colour?

Answer 17

They can conceal the location of the feature on the images of the suspect and the other people (eg blur their cheeks); or
replicate that feature on the images of the other people.

Question 18

Who should be shown the VIPER video clip before it is shown to an eye-witness?

Answer 18

The suspect, their solicitor, friend or appropriate adult must be given a reasonable opportunity to see the complete set of images before it is shown to any eye-witness.

Question 19

Can the suspect or solicitor make objections to the images or chosen participants?

Answer 19

Yes, they can make ‘reasonable objections’. The police must take steps, if practicable, to remove the grounds for objection.

Question 20

Can the suspect’s solicitor be present during the video ID procedure?

Answer 20

only on request and with the prior agreement of the identification officer.

Question 21

Identification officer

Answer 21

at least an inspector and must not be involved in the investigation; they are in charge of the ID procedure and ensuring it complies with Code D

Question 22

If the police decide to hold an identification procedure, the suspect will normally be released on

Answer 22

police bail with a requirement to re-attend the police station at a later date when the identification procedure will take place

Question 23

Identification parade procedure

Answer 23

witnesses sees the suspect in a line of at least 8 other people who resemble the suspect in age, height, general appearance and position in life

Question 24

What advice would you give to your client about the ID parade?

Answer 24

• at least 8 other people who resemble you insofar as possible will be in the line;
• you can choose where you stand;
• don’t draw attention to yourself;
• any defining features will be covered;
• witnesses are brought in one at a time;
• witness must look at each person twice before making a positive identification;
• witness can ask you to speak, move, adopt a posture

Question 25

Can the police compel a suspect to participate in VIPER or an ID parade?

Answer 25

No

Question 26

The general rule is that the prosecution bears the legal burden of

Answer 26

proving all the elements of the offence necessary to establish guilt - the facts in issue

Question 27

evidential burden for self-defence rests with the

Answer 27

defence (but legal burden remains with prosecution)

Question 28

extent of burden on D to prove self-defence

Answer 28

the defence must raise “some” evidence to “pass the judge” that the defendant acted in self-defence

Question 29

legal burden on prosecution for self-defence

Answer 29

to prove that the use of force was unlawful, the prosecution must disprove self-defence

Question 30

Safeguard for ID evidence at investigation stage

Answer 30

PACE Code of Practice D

Question 31

When does a Turnbull direction apply?

Answer 31

when a prosecution witness positively identifies, and D DISPUTES that identification.

Question 32

the Turnbull guidelines will apply only if the defendant

Answer 32

disputes the visual identification made by the witness.

Question 33

Turnbull guidelines

Answer 33

The jury MUST be warned that: 1) there is a need for caution 2) a witness who is honest and convinced in their own mind may be wrong 3) a witness who is convincing may be wrong 4) multiple witnesses may be wrong 5) even a witness who knows D very well may be wrong

Question 34

Factors for the trial judge to consider when assessing the qualify of ID evidence

Answer 34

- the length of the observation - distance - lighting - conditions - How much of the suspect's face did the witness see? - whether the person identified was someone known to the witness or never seen before - How closely does the original description given by the witness to the police match the actual physical appearance of the defendant? Are there any discrepancies in height, build, hair colour/length or age?

Question 35

When should a Turnbull direction be given?

Answer 35

when the case against the accused depends 'wholly or substantially' on the correctness of the visual identification - the judge must assess the ID is good quality; OR - give a Turnbull direction for poor quality ID if there is also other supporting evidence

Question 36

At what stage in the trial should the possibility of making a Turnbull direction be discussed?

Answer 36

between judge and advocates in the absence of the jury prior to speeches and summing up

Question 37

When is a Turnbull warning given?

Answer 37

if the trial judge considers the ID to be good quality

Question 38

Turnbull warning

Answer 38

The judge will tell the jury that it is very easy for an honest witness to be mistaken as to identity, and will direct the jury to examine closely the circumstances of the original sighting and take into account the factors listed above when considering the quality of the identification evidence.

Question 39

Visual identification is poor but supported

Answer 39

the trial judge will allow the ID to be put before the jury but will issue a Turnbull warning and draw specific attention to the weaknesses of the ID evidence

Question 40

Examples of supporting evidence

Answer 40

(a) a confession made by the defendant; (b) other evidence placing the defendant at the scene of the offence (such as fingerprints or DNA evidence); (c) in a theft case, stolen property being found in the defendant’s possession; (d) adverse inferences being drawn from the defendant’s silence when questioned at the police station

Question 41

Identification is poor AND unsupported

Answer 41

the judge should stop the trial at the end of the prosecution case and direct the jury to acquit the defendant (usually following a submission of 'no case to answer')

Question 42

During summing up, the judge will explain to the jury that they must decide whether

Answer 42

D was the person seen by the witness - at this stage, the judge will give the jury a specific Turnbull warning - a direction in relation to how they should assess the weight of the identification evidence

Question 43

3 key elements of a Turnbull warning

Answer 43

The judge should: - instruct the jury as to the reason for the need for such a warning - direct the jury to examine the circumstances in which the identification by each witness came to be made - remind the jury of any specific weaknesses in the ID evidence

Question 44

In R v Turnbull, the witness policeman, who knew Turnbull, identified him from a

Answer 44

“fleeting glimpse”

Question 45

Who is responsible for assessing the quality of the identification evidence given by a witness called by the CPS?

Answer 45

the trial judge

Question 46

If the quality of the identifying evidence is poor, what should the judge do?

Answer 46

the judge should withdraw the case from the jury and direct an acquittal unless there is other evidence which goes to support the correctness of the identification

Question 47

A failure to follow the Turnbull guidelines is likely to result in a conviction being

Answer 47

quashed

Question 48

In cases of visual identification, the JUDGE must answer two principal questions:

Answer 48

What is the quality of the identification evidence? Is there other evidence to support the correctness of the identification?

Question 49

mnemonic for considering the strengths and weakness of the evidence as outlined in Turnbull

Answer 49

ADVOKATE - directions given to the JURY when assessing the quality of visual ID evidence

Question 50

Why is "dock identification" unideal?

Answer 50

because it leaves the witness with no other alternative than the defendant and the fact that the defendant is already standing in the dock is highly prejudicial

Question 51

What must the judge consider when deciding whether to allow a dock identification?

Answer 51

whether it will jeopardise the fairness of the accused's trial

Question 52

4 key aspects to making an application to exclude a confession are:

Answer 52

Advance notification Timing Voir dire Submissions

Question 53

Are defence statements compulsory in Mags Court and Crown Court?

Answer 53

defence statements are optional in Mags court and mandatory in Crown Court

Question 54

When dealing with case management in a magistrates' court, standard case preparation time limits require any defence skeleton argument in support at least

Answer 54

10 business days before trial

Question 55

in mags court, prosecution response to defence skeleton argument should come

Answer 55

within 5 working days

Question 56

A voir dire takes place in open court in the presence of the

Answer 56

defendant and (when taking place in the Crown Court) in the absence of the jury

Question 57

A voir dire is only required if

Answer 57

a factual matter relating to the substance of the legal argument requires resolution for the argument to proceed

Question 58

a video identification procedure can be arranged without the client’s

Answer 58

consent

Question 59

Evidence is admissible if it is

Answer 59

relevant

Question 60

Who decides if evidence is admissible?

Answer 60

the judge (or magistrates)

Question 61

If the quality of the identifying evidence is poor, the judge should

Answer 61

withdraw the case from the jury and direct an acquittal

Question 62

Voir dire

Answer 62

used by the judge to call evidence at a fact-finding “trial within a trial” where the facts on both sides are disputed

Question 63

When a legal representative says to the judge that a “matter of law” has arisen, the judge will take this as a cue to ask the jury to...

Answer 63

briefly retire whilst the legal argument is dealt with

Question 64

To determine if the ID evidence should be excluded under s.78, the trial judge must determine if there has been any

Answer 64

significant prejudice

Question 65

Advice to give to your client before ID procedure

Answer 65

- most likely ID procedure is video ID, if not possible. They will have to consent. - if they are positively identified, they may have to re-interview and could be charged; - advise your client to agree to video or parade - if they are not positively identified, they could be released without charge

Question 66

If the client is not prepared to take part in a video identification or identification parade, the solicitor should warn the client that

Answer 66

the police may hold a less satisfactory form of identification procedure, such as group identification, a confrontation or the police could video the suspect covertly for a video identification

Question 67

Is refusal to participate in an ID procedure admissible at trial?

Answer 67

Yes, it is admissible so the court can draw an adverse inference from the refusal of a suspect to take part. The adverse inference will be that the suspect refused to participate because they thought they would be recognised by the witness(es) who would have attended the procedure.

Question 68

If the solicitor considers that the police should carry out an identification procedure to comply with Code D but the police are not willing, what should they do?

Answer 68

- make representations to the investigating officer; - ensure these are recorded in the custody record so that they can challenge the admissibility of disputed visual ID evidence at trial

Question 69

How can the solicitor prepare for the video identification procedure?

Answer 69

- obtain the first description of the suspect given by the witness from the police; - check that the images resemble the suspect in age, height etc. - any distinctive features are covered; - attend to ensure that witnesses are segregated and no unauthorised people are present; - check the number of witnesses who are to attend, where the witnesses will be kept before and after the procedure.

Question 70

What should the solicitor do if they believe the video ID has been contaminated?

Answer 70

ask the witness if they have discussed the description of the offender with anyone, either before attending or whilst at the police station

Question 71

What should the solicitor do if the other participants in the ID parade do not sufficiently resemble the suspect?

Answer 71

make representations to the ID officer for the parade to be postponed, or for some form of disguise to be used to overcome any disparity in the appearance of the other participants

Question 72

If ID evidence is good quality but disputed by D, how will the Judge direct the jury?

Answer 72

Judge will give jury a 'Turnbull warning' and tell the jury that an honest witness can be mistaken and to take into consideration the factors eg length of time, distance, if they know the defendant

Question 73

If ID evidence is poor but supported, how will the Judge direct the jury?

Answer 73

Judge will give jury a ‘Turnbull warning’, point out the weaknesses in the identification evidence given, and tell jury to look for supporting evidence before convicting

Question 74

What happens if the ID evidence is poor AND unsupported?

Answer 74

Defence will make submission of no case to answer and judge will direct jury to acquit the defendant

Question 75

Can the Turnbull guidelines still apply if D was present at the scene and admits this?

Answer 75

Yes, the Turnbull Guidelines may still apply even where D is present at the scene but claims an ID witness is mistaken, but only where there are other people or person present who are / is similar to the description of the defendant

Question 76

Specific warnings that judge should give to the jury as part of a Turnbull direction

Answer 76

(1) there is a need for caution to avoid the risk of injustice; (2) a witness who is honest and convinced in his own mind may be wrong; (3) a witness who is convincing may be wrong.