Conduct the procedure fairly: independence, rights and vulnerability

Responsibility is independent, even where individual tasks are delegated

The identification officerGlossary termIdentification officer is an officer of at least inspector rank who is not involved in the investigation. That officer is responsible for arranging and conducting the formal procedure. Suitable tasks may be delegated to another officer or police staff, but the identification officer must remain able to supervise, be contacted and receive the outcome; overall responsibility is not transferred. Except for expressly permitted functions, an investigator in the case should not conduct or participate in the procedure. Code D paragraph 3.11.

The investigator may supply necessary information and discuss the appropriate method. That is different from administering a viewing in a way which signals who the police suspect. Where the identification officer is unavailable, paragraph 3.19 permits specified notice functions to be performed by an independent custody officer or other officer in the defined circumstances. It is not a general waiver of independent responsibility. References to specified ranks also accommodate the lawful higher-rank authorisations recognised by paragraph 2.9; a convenient designation alone does not establish such authority.

Explain rights before asking for a decision

The suspect must receive the information in Code D paragraph 3.17 and the written notice required by paragraph 3.18. This includes the purpose and proposed method, free legal advice, the qualified right to a solicitor or friend at the procedure, the absence of a duty to consent or cooperate, and the potential evidential use of refusal. Explain possible alternatives or covert arrangements, relevant previous images, the opportunity to supply an image where applicable, and the special safeguards for age or vulnerability. Information about changing appearance and its possible evidential consequences must not become a threat that any objection proves guilt.

The written notice supplements a comprehensible explanation. Give a reasonable opportunity to read it, ask whether the suspect is willing to participate, and record the response, reasons and any refusal to sign. A signature records what was agreed; it does not cure missing advice, an unfair set or a misunderstood warning. Code D paragraphs 3.17–3.18 and 3.25–3.27.

The solicitor should obtain the first description and relevant previous-image history; establish the disputed identity issue; inspect the proposed comparators and reasons for the method; consider distinctive features, presentation, clothing and prior exposure; and make specific objections before the witness sees the material where possible. Ask for a practical correction, not merely a general allegation of unfairness. A reasonable objection must be considered and recorded, but the solicitor does not take over the identification officer's decision. Code D paragraphs 3.17–3.18; Annex A paragraphs 7–8; Annex B paragraphs 11–12.

Defence inspection and witness-viewing attendance are different

For video identification, Annex A paragraph 7 provides the defence opportunity to inspect the complete set and make reasonable objections. That does not give the suspect a right to sit with the witness during the viewing. Under Annex A paragraph 9, the suspect is not present and has no entitlement to be informed of the viewing's time and place. The solicitor should be informed where practicable, but attendance requires a request and prior agreement from the identification officer, including consideration of whether attendance could deter or distract the witness.

If attendance is refused, the decision and reasons must be recorded and explained, and the solicitor must have an opportunity to make representations and obtain review by an independent officer of at least inspector rank; that review function is not delegated. The witness viewing is recorded with sound and video, capturing those present and what is said. Access to that recording is governed by the Code, including justified witness-protection arrangements. These safeguards explain why qualified attendance is not the same as absence of defence scrutiny. Annex A paragraph 9.

A parade, a consensual group procedure and confrontation have their own attendance arrangements. Do not transplant the particular video-viewing rule into every method. Nor should a permitted screen for a witness become an excuse to remove the appropriate adult where the suspect's participation requires one. Annex B paragraphs 1–3; Annex C paragraphs 13–18; Annex D paragraph 4; Code D paragraph 2.15.

Keep the witness's choice independent

Witnesses must not learn another witness's result, see the suspect prematurely, receive a reminder of a suggestive photograph or description, or be prompted towards a selection. Immediately before the relevant viewing, explain that the person previously seen may or may not be present. A non-selection is a legitimate result. For video identification, the witness views the whole set at least twice before deciding; further viewing or a frozen image may be requested. Record the selection or non-selection, the witness's words and uncertainty, not merely an officer's conclusion that the witness was confident. Annex A paragraphs 10–13 and 17–18; Annex B paragraphs 14–17.

There is a difference between improper encouragement to “try again” and a witness-initiated change of mind. Under Annex A paragraph 13A, if a witness spontaneously says after the procedure that they wish to change their decision, the words must be recorded immediately. Where the witness has had no opportunity to communicate with others about the procedure, the identification officer may arrange a repeat using the same images in different positions. This is a controlled discretion, not permission for police to repeat a failed procedure until someone selects the suspect. Retain both outcomes and the reason for the repeat.

Records are part of the safeguard. Preserve the actual image set or parade/group material, its order, notices, objections, decisions, witness instructions, selections and non-selections, and any departure from the Code. The final trial account must not conceal an earlier hesitation or failure to identify. Code D paragraphs 2.10–2.11 and 3.25–3.27; Annex A paragraph 18; Annex B paragraphs 20–23; Annex E paragraphs 10–12.

Separate legal advice, appropriate-adult assistance and consent

An appropriate adult supports understanding, communication and procedural fairness for a child or vulnerable suspect. The solicitor gives legal advice and protects the legal position. An interpreter enables communication where language or hearing requires it. These functions are cumulative where needed; one person's presence does not prove that all have been satisfied. Code D adopts Code C's juvenile and vulnerability safeguards through paragraphs 2.3–2.6.

A suspect under 18 receives the juvenile protections. Vulnerability is assessed through the applicable Code C criteria rather than by appearance or conversational confidence alone. If information must be given to or sought from a juvenile or vulnerable suspect, it must be dealt with in the appropriate adult's presence. If initially given or sought without the adult, it must be repeated when the adult arrives. A procedure involving the suspect's participation must take place in the adult's presence. Arrange the necessary interpreter and communication support separately. Code D paragraphs 2.14–2.15.

Consent is a further question. Where a procedure requires consent, a vulnerable adult's consent is valid only if given in the appropriate adult's presence. For a juvenile aged 14–17, the juvenile's consent and the parent's or guardian's consent are required. For a child under 14, the parent's or guardian's consent is sufficient for this consent rule. That does not abolish the child's participation safeguards or authorise whatever force an officer finds convenient. Code D paragraph 2.12.

A trained appropriate adult who is not the parent does not automatically supply the separate parental consent. Conversely, an informed parent may give consent without attending solely for that purpose when another suitable person acts as appropriate adult. Guidance Note 2A explains the information and communication needed for an absent parent's informed decision. If refusal of parental consent, or failure to obtain it despite reasonable efforts, is the only obstacle, paragraph 2.12 permits the identification officer to consider the paragraph 3.21 known-but-unavailable route. It does not permit police simply to declare that consent was obtained.

For a genuinely covert group procedure, Annex C paragraph 35 expressly provides no right to a solicitor, appropriate adult or friend being present: the suspect is unaware that the identification is taking place. The other applicable safeguards continue so far as practicable. Distinguish this specific covert arrangement from interviewing or openly involving a child while an appropriate adult happens to be late.

A juvenile or vulnerable witness has a different support arrangement. The procedure should take place with a pre-trial support person unless the witness says they do not want one. That person must not prompt an identification. The witness's support person is not the suspect's appropriate adult and does not give the suspect's consent. Code D paragraph 2.15A. Assistance with reading documents for a visually impaired or non-reading suspect also has its own rule and does not, by itself, require appointment of an appropriate adult for an otherwise non-vulnerable adult: paragraph 2.13.