Classify the identification issue and preserve the first description

What exactly is the witness identifying?

Visual identification evidenceGlossary termVisual identification evidence connects a suspect or defendant with the person a witness saw committing an offence, or in circumstances tending to prove or disprove involvement. Seeing a person near the scene immediately before or after an offence can therefore matter. By contrast, evidence that a fingerprint or DNA profile matches an exhibit is a forensic comparison. It may support identity, but it is not a witness's visual identification and does not itself require a video identification or parade. Code D paragraphs 1.2–1.4 and 3.0 distinguish those processes.

A description records characteristics: for example, approximate height, clothing, a scar, or the limits of what the witness could see. An identification selects a particular person as the person previously seen. A witness who described a red jacket has not thereby identified its wearer. Nor does proving that the accused owns a red jacket establish that they committed the offence. Ask which proposition each item actually supports before deciding its procedural route or weight.

Code D section 3 separates three routes. Part A concerns the original eye-witness: someone who saw the person on the relevant earlier occasion and is later asked to identify that person. Part B concerns an arranged recognition exercise for someone who was not that eye-witness: for example, a colleague asked whether the person shown in CCTV is someone already known to them. Part C concerns uncontrolled circulation through the media, social media or police communication systems, where an image or description may prompt a response. These are Parts of section 3, not the identically lettered annexes which prescribe the mechanics of individual procedures. Code D paragraphs 1.2–1.2B, 3.0 and 3.34–3.41.

Recognition evidenceGlossary termRecognition evidence means identification based on previous familiarity. It is not confined to Part B. A victim who knows the attacker is an eye-witness within Part A; a colleague who did not see the offence but recognises a person in a later arranged viewing falls within Part B. Familiarity may improve the opportunity for recognition, but its existence, extent and reliability still need examination. A person's statement that they “know” the suspect is not a substitute for explaining how, how well, and what feature produced the recognition.

Preserve the first account before testing it

The first descriptionGlossary termFirst description is the description first supplied by the eye-witness. Code D paragraph 3.1 requires an accurate, reproducible record before the specified identification procedures. Where practicable, the suspect or solicitor must receive a copy before the relevant formal procedure. For video identification, Annex A paragraph 8 requires that copy before the defence previews the images. If the first description has not been recorded, the Annex E photograph-showing procedure must be postponed until it has been recorded: the comparison needs a genuine starting point, not a description reconstructed after the selection.

Preserve the witness's words, uncertainty and omissions. A note that originally said “I could not see the face” must not become “recognised the face” after discussion. The solicitor should compare the description with the suspect and with later accounts: what was present initially, what was added, and what changed after exposure to a photograph or another witness? A discrepancy is not automatically fatal, but the court must be able to evaluate it. Code D paragraph 3.1; Annex E paragraph 2; TurnbullKey caseR v Turnbull[1977] QB 224, [1976] 3 All ER 549, 552–553.

Is the suspect known and available?

For Code D, a known suspectGlossary termKnown suspect is a particular person about whom police have enough information to establish reasonable grounds for suspicion. A name on a rumour list is not necessarily enough. An available suspectGlossary termAvailable suspect is immediately available, or will be available within a reasonably short time, so that an effective video identification, parade or group identification can practicably be arranged. These are separate conditions. A known suspect who cannot be located may be unavailable; a person physically nearby is not a known suspect without the necessary information. Code D paragraph 3.1A.

Arrest is not a universal precondition to a formal identification procedure. A known suspect who can attend voluntarily may be available. Conversely, arrest does not prove that the witness can identify anyone or that the mandatory trigger is satisfied. The solicitor should record the relevant status rather than assume that “in custody” answers every Code D question.

Identify previous exposure

Before advising, establish whether the witness has already seen a custody photograph, social-media post, press report, CCTV image, composite likeness, another witness's selection or the defendant in court. Contamination means an influence capable of affecting the witness's memory or selection, rather than a conclusion that the evidence must be excluded. Preserve the material, its captions and comments, the order of exposure, discussions, the witness's exact words and any hesitation. Code D's publication and recognition records make that history examinable; its legal effect is considered later. Code D paragraphs 3.36 and 3.39–3.41.