Flawed ID policy is bad news for suspects
John Briant argues that police forces’ moves to ‘voluntary’ identification procedures come at the expense of civil liberties.
PACE Code D clearly negates any suggestion that identification procedures are voluntary.
Identification evidence plays a pivotal role in criminal cases and often determines the charging decision. At first glance, identifications seem both simple and effective. My experience, however, has led me to question this, and consider issues of reliability and how changes to police policy and legal aid can impact on this issue and other fundamental rights.
The legislative background
Identification procedures are governed by Police and Criminal Evidence Act 1984 (PACE) Code D. This gives clear guidance about a number of situations in which an eye witness identification procedure must take place (para 3.12), eg when a witness is available who has expressed an ability to identify the suspect. It also provides a hierarchy of procedures for the conduct of identifications (paras 3.5–3.10).
Video identification has become pervasive. The suspect is videoed in controlled conditions matching, as far as possible, those used to capture images of thousands of volunteers, which have been compiled by the police into a database. This database is searched to find eight people who are similar in age, circumstance and appearance. A video is produced that shows all nine videos (ie the suspect plus the eight other volunteers) sequentially.
The results of the procedure usually fit into one of the following outcomes: a suspect is immediately identified; no one is identified; a volunteer is identified incorrectly; or the witness isn’t sure but finally decides on one of the previous options.
Criminal procedure clearly needs some form of identification process and ultimately, I think, despite the inherent risk of mistakes, the one we have, when properly administered, is about the best we can conduct.
A convenient interpretation
The potential fallibility of these procedures and the weight of the evidence they produce are important when we consider the developments in how this evidence is obtained. One of the fundamental problems that I have with recent developments is the assertion by the police that these procedures are in a client’s interest, that they can ‘prove’ their innocence by taking part.
In 2008, a change happened at the Met. Suspects were no longer being bailed to take part in identification procedures, but were told to go on a voluntary basis. It is this change that has ramifications for the civil liberties of those under arrest.
To my mind, this policy has evolved from a novel interpretation of the codes of practice, based on the usual driver of expediency, without consideration of the implications; it was slowly implemented and has now become the norm throughout the Met, spreading to other forces over the past two to three years.
I believe the Met’s policy derives from its interpretation of Code D para 3.17(iv). Per para 3.17, a notice is usually provided to the suspect providing details of the identification procedure and their rights and entitlements relating to it. Sub-para (iv) states that the following should be explained to the suspect:
… that they do not have to consent to or cooperate in a video identification, identification parade or group identification.
This codification of the power to refuse to co-operate in a procedure appears to have resulted in the Met’s interpretation that the identification procedure is therefore voluntary. The importance of the word ‘voluntary’ in the context of PACE is that someone may attend the police station as a volunteer to ‘assist police with the investigation of an offence’ (PACE Code C para 3.21) and the 24-hour detention limit (PACE s41(1)) doesn’t apply.
The detention time imposed by statute is, in my view, the most fundamentally important right enshrined in the Act, its importance highlighted in PACE Code G para 1.2:
The exercise of the power of arrest represents an obvious and significant interference with the right to liberty and security under article 5 of the European Convention on Human Rights set out in Part I of Schedule 1 to the Human Rights Act 1998.
Twenty-four hours may seem limiting and unduly onerous on the police. However, those hours do not have to be continuous and can be interrupted by certain provisions: the requirement for medical treatment in a hospital (PACE s41(6)) or a detainee’s release on bail (see PACE s47) to return later to the police station allows the officers time to conduct further enquiries before continuing the investigation procedure. When a suspect returns to the police station, their detention clock continues from the time it was halted.
The detention clock governs the application of the common law principle of habeas corpus (the right not to be detained unlawfully) in the police station and ensures the police investigate offences diligently and expeditiously. Anything that interferes with this right must, I suggest, be determined in parliament and not rely on an interpretation of a paragraph of a PACE code of practice.
When ‘voluntary’ isn’t what it seems
In London, it is now the norm that a detainee will be released on bail to return to the police station on a given date (at which point their detention clock will restart) and in the intervening period a ‘voluntary’ ID procedure (not forming part of the detention period) is arranged. Let us compare this to a police interview – another evidence-gathering method, which can also exonerate suspects. If the police suggested that they wished a suspect to take part in a voluntary interview while on bail, defence lawyers would laugh all the way to the court, probably via an inspector to make a formal complaint. There would be no adverse inference from refusal to take part, no alternative covert interview possible and, if a suspect chose to attend voluntarily, the time would be counted towards the detention time limit.
Is the identification procedure voluntary? The Shorter Oxford English dictionary (William R Trumble and Angus Stevenson, eds, fifth edn, OUP, 2002, p3557) defines ‘voluntary’ as ‘arising or developing in the mind without external constraint’ and ‘not imposed or prompted by a promise or a threat’. Consider this in light of Code D’s provisions regarding a refusal to co-operate (para 3.17(v)):
… if they do not consent to, and co-operate in, a video identification, identification parade or group identification, their refusal may be given in evidence in any subsequent trial and police may proceed covertly without their consent or make other arrangements to test whether a witness can identify them …
What this usually means is the court will be told and the police will conduct a ‘custody image’ identification procedure. They will use the custody image taken when the suspect entered the police station on arrest (which is held on the Police National Computer), and rather than a video procedure, still images of the suspect and eight others will be shown to the witness. This process is regarded as less reliable than a normal video identification (but is becoming increasingly common as a result of this policy): there are fewer still images than videos in the database used by police, which means the other images are less likely to feature people similar in age, appearance and background, the conditions of capture are not controlled, and lighting and poses are different. Lawyers are often prevented from supervising the procedure to ensure its fairness; a suspect may be innocently wearing an item of clothing named by a witness (such as a dark hoodie) that forms the basis of identification, as opposed to recognition of their features.
In making both a threat (to inform the court) and a promise (to obtain the evidence by less reliable means) in response to a refusal to co-operate, Code D (para 3.17(v), see above) clearly negates any suggestion that identification procedures are voluntary.
The request to take part in a ‘voluntary’ identification procedure is therefore coercive. Suspects are, in effect, being required to travel in their own time, at their own expense, to be detained unlawfully while the police conduct their procedure, under threat of court sanctions and less reliable procedures.
The cost to justice
There are benefits to the police from this change in policy: extra time to detain suspects and conduct their investigations; they no longer have to transport suspects to an identification suite if there isn’t one where the client is arrested; it makes scheduling the procedures easier; and it may avoid the need to apply to extend detention time limits, a procedure with added safeguards and requiring the authorisation of a superintendent, usually the most senior police officer in the borough. Is it any wonder it has gained favour? What I found especially worrying was that, when I discussed it with a chief inspector in charge of a central London ID suite, he denied the process had been altered, insisting it had always been done thus, despite his junior colleague confirming to me the 2008 policy change minutes earlier.
The policy, however, raises a number of questions:
•Should liberty and the quality of evidence gathered be dictated by ease and convenience to the police?
•Should this expediency allow police to circumvent the time limits enshrined in law about how long a person can be detained?
•Does the assertion of voluntariness undermine the importance of the evidential procedure to unrepresented suspects, reducing their likelihood of taking part?
•Does it make suspects, whether represented or not, less likely to turn up because they are not bailed to attend? The sanction for breaching bail is usually being dragged out of bed at 4 am, detained for a new charge of breaching bail and kept in custody until the next day’s court appearance. Are socially disadvantaged clients less likely to attend a voluntary procedure? Those in minimum wage jobs may be unable to take time off for fear of losing them.
Since its inception, I have taken issue with the policy and consulted with those instructing me and, more recently, with academics to consider the impact of a refusal to engage and an application to exclude both evidence of refusal and any resulting identification evidence obtained.
The response has always been: it is not worth the risk. If a court disagrees and allows the evidence of refusal to be put before a jury, can we justify advising a client not to take part in this (in)voluntary procedure? Can a defence lawyer advise their client not to take part in order to produce a test case?
There is also the issue of pragmatism in response to legal aid cuts and the introduction of fixed fees at the police station. The reality of this is that a firm will receive approximately £200 to cover the travelling, waiting and attendance for the entire police station case. In identification cases, this will involve representation for the initial interview, the identification procedure, a separate witness viewing and an attendance for an interview when the client returns on bail. This amounts to £50 a visit, each of which will be a minimum of three hours. It is not surprising, then, that it is becoming more standard for practices not to provide representation at witness viewings and increasingly at identification captures themselves, unless the matters are very serious.
Having a lawyer present at identification procedures is important. Often poor choices by police officers when creating compilation videos mean one’s client is being picked from fewer that the statutory eight volunteers. For example, where a witness describes a man with stubble and volunteers with beards are included in the procedure, the witness will automatically discount those with beards. There is an art to choosing volunteers to ensure its fairness, to ensure police go to the extra effort of pixellation or masking unique identifiers if required, to make the officers repeat a capture if it doesn’t appear satisfactory. Being present in viewings is also essential: I have been required to make extensive representations about the conduct of the viewings in every case deemed important enough to justify attendance. If suspects are unrepresented or lawyers don’t attend, these changes happen unseen and without consequence to the police.
It is my view that this is just one of many policy changes that are happening, unchallenged, in the name of expediency. Even if a practitioner cannot justify challenge on the basis of an individual client’s case, it would be appropriate for parties with sufficient interest to consider judicial review. ■