Select the lawful identification procedure

Video is the starting choice, not the first rung of a compulsory ladder

Video identificationGlossary termVideo identification shows the suspect's image among images of resembling people. An identification paradeGlossary termIdentification parade places the suspect in a line of resembling people. Group identificationGlossary termGroup identification places the suspect within an informal group. All three are formal eye-witness methods for a known and available suspect, each with its own annex. Their shared purpose is a fair comparison, not an instruction to select someone. Code D paragraphs 3.4–3.10.

Under paragraph 3.14, video identification is offered first unless it is not practicable, a parade is both practicable and more suitable, or the conditions for group identification under paragraph 3.16 apply. Under paragraph 3.16, group identification may be the initial procedure where the investigating officer considers it more suitable than video or a parade and the identification officer considers it practicable. Thus police need not try and fail at a parade before using a justified group procedure. The reasons for departure from video matter; merely announcing a preferred label is insufficient.

A fair video set may be practical when witnesses are in different places or a live parade would cause avoidable difficulty. A parade may be more suitable on the facts. A naturally occurring, fair group may make group identification the appropriate first method. The independent identification officer must apply the Code and retain responsibility, although consultation with the investigator is permitted. Code D paragraphs 3.11 and 3.14–3.16.

Video: images, numbers and distinctive features

A standard video set contains the suspect and at least eight other people resembling the suspect as far as possible in age, general appearance and position in life. If two roughly similar suspects appear together, there must be at least twelve others. Eight and twelve are comparator counts, not the total number of images including the suspect or suspects. The presentation must not single the suspect out through clothing, background, image format or an identifying label. Annex A paragraphs 2–6.

Moving images are required unless a permitted exception applies. Paragraph 3.5(a) allows an earlier moving or still image where the suspect's appearance has changed significantly, the identification officer and investigator reasonably believe the image depicts the appearance at the relevant earlier time, and the identification officer believes its use appropriate. The suspect must first have an opportunity to supply their own image for consideration. An earlier-image procedure may be additional to, or instead of, current moving images. A still photograph is not an unrestricted shortcut simply because it is easier to obtain.

Paragraph 3.5(b) permits still images where the identification officer considers that the required replication or concealment of a physical feature cannot be achieved with moving images. These exceptions solve specific fairness problems; they do not remove the requirements for fair comparators, defence inspection or neutral presentation.

A distinctive scar, tattoo or hairstyle may make the suspect stand out even where the basic numbers are correct. Under Annex A paragraphs 2A–2C, the identification officer may replicate the feature on the other images or conceal its location consistently across the set, and must record the decision and reasons. A witness's request to see an unaltered image is dealt with under the Code's controlled discretion, not by automatically discarding the protection. The solicitor should inspect the whole set, identify the actual cue, propose a practical remedy and preserve any rejected objection. Annex A paragraphs 7–8.

Parade: live comparison has distinct safeguards

Immediately before a parade, the suspect must be reminded of the procedures and given the applicable Code C caution. The earlier written notice does not replace this step. Annex B paragraph 6.

An ordinary parade uses the suspect and at least eight others. Two roughly similar suspects may appear together with at least twelve others; more than two suspects must not be included together. Where suspects are not sufficiently similar, separate parades using different participants are required. The suspect may choose their position and change it between witnesses. Record reasonable objections and any decision not to rectify them. Annex B paragraphs 9–13.

The distinctive-feature rule is not identical to the video rule. Where an unusual feature cannot be replicated on other parade members, Annex B paragraph 10 permits concealment with the agreement of the suspect and their solicitor or appropriate adult. Do not import the video identification officer's editing discretion as an unrestricted power to alter a live parade against those conditions.

Before deciding, the witness must have a proper opportunity to look at each parade member at least twice and receive the neutral warning that the person previously seen may not be present. If a witness asks to hear speech or observe movement or posture, the ordinary visual comparison comes first. The witness should understand that participants were selected by appearance, not voice or movement, and the request must be handled fairly across the parade. This is not permission to make the suspect alone supply a revealing performance. Annex B paragraphs 16–18.

Group: fairness is assessed in context

A group identification uses an informal setting, which may be public or private, moving or stationary. Its fairness depends on a sufficient number of broadly similar people and a genuine opportunity for comparison. Annex C does not impose the video or parade minimum of eight comparators. Equally, the absence of a fixed minimum does not make any crowd acceptable. A suspect surrounded by people whose appearance is wholly different may stand out as plainly as in an unfair parade. Annex C paragraphs 1–9.

The identification officer selects an appropriate location and records the arrangements and material conditions. A photograph or video of the general scene should be made where practicable, and the procedure record must explain how the witness observed the group and made any selection. The detailed rules differ for moving and stationary groups; position choices, witness independence and any confirmation must be managed under the applicable provisions. For example, roughly similar suspects may be identified together in a stationary group, while the moving-group provisions require separate procedures for multiple suspects. Annex C paragraphs 8–9, 19–29 and 42–44.

A brief moment when the suspect is alone within an otherwise properly arranged group procedure does not automatically turn it into confrontation. The lawyer should examine the whole arrangement, not only one frozen frame. Conversely, placing a lone suspect outside a station and calling the encounter “group identification” does not create the required fair comparison. Annex C paragraph 10.

Refusal, unavailability and covert arrangements

If the suspect refuses the offered procedure, police must ask why and permit advice and representations before deciding whether another procedure is appropriate. A reasoned objection to a suggestive image is different from an attempt to prevent any fair test. The objection is not a veto, but it must be considered and recorded. Code D paragraph 3.15.

For a known but unavailable suspect, or one whose refusal or conduct makes the applicable arrangements unavailable, paragraph 3.21 permits a video procedure using suitable moving or still images, obtained covertly if necessary, or a covert group identification. “Covert” means undertaken without alerting the suspect. The activity must be strictly limited to what is necessary to test the witness's identification. It is not an independent, unlimited surveillance power, and it does not authorise an unfair set. Notice or preview steps made impossible by non-cooperation may be inapplicable under paragraph 3.24; the remaining safeguards do not disappear.

There is also a tightly controlled route for obtaining images before giving the suspect notice where the identification officer and investigator suspect on reasonable grounds that notice would lead the suspect to take steps to avoid being seen by a witness in an identification procedure. The later notice and opportunity to provide a suitable replacement image remain important. Distinguish that precautionary step from simply failing to inform a cooperative suspect. Code D paragraphs 3.17(vi), 3.20–3.24.

Confrontation is a last resort

ConfrontationGlossary termConfrontation is direct presentation of the suspect to the eye-witness. Under paragraph 3.23, it is available only where the preceding formal and known-but-unavailable options are not practicable. It is not an equal fourth choice selected to save effort. Consent is not required, but Annex D still regulates the process.

The witness must receive the neutral warning, the first description must be available, one witness is dealt with at a time, and the question must not suggest the answer. Annex D paragraph 3 specifically prohibits making the suspect's face visible by force. The confrontation must take place with the suspect's solicitor, interpreter or friend present unless that would cause unreasonable delay, subject also to the separate safeguards for children and vulnerable suspects. The encounter and its result must be recorded. Do not turn a limited attendance exception into permission to disregard a required appropriate adult. Annex D paragraphs 1–6; Code D paragraphs 2.14–2.15.