Académique Documents
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2004
affords offer robust protection against the risk of miscarriage of justice. The premise
of the arguments developed below lies in the extent to which a witness's memory is
susceptible to distortion as a result of encounters with other persons following the
witness's observation of events giving rise to criminal proceedings.
Memory processes
The range of factors that might affect the accuracy of any identification attempted by
an eyewitness is substantial. Numerous commentators have formulated taxonomies5
which include characteristics inherent in the witness, such as age,6 respective
ethnicity of witness and suspect,7 and degree of physiological arousal
*INTLJEVIDENCEPROOF 102 (as might occur when a violent event is
witnessed).8 Environmental factors also have the potential to affect accuracy, for
example, lighting conditions when the culprit is observed, the length of time that the
witness has the culprit in view,9 whether the offence involved the use of a
weapon.10 In providing structure to what would otherwise be a mere catalogue of
factors, Wells'11 categorisation of factors as either system variables or estimator
variables is of considerable importance for the evaluation and development of
criminal procedure.
Estimator variables describe those factors capable of affecting identification accuracy
that have an existence independent of anything that might be done by those
responsible for criminal justice system policy, and of the practices pursued by those
working in the system. Environmental circumstances, and the physiological
characteristics of witness and suspect, fall into this category.
In contrast, the term system variable describes a phenomenon believed to affect
identification accuracy adversely which arises as a consequence of some conduct
engaged in by agents (essentially police officers) in the pre-trial process. These
include various forms of suggestive conduct engaged in by the agent while following
the prescriptions of formal rules or exercising discretion conferred for the purposes of
investigation.
In the context of estimator variables, so named because they are not controllable
and their influence can only be estimated,12 mitigating the risk of miscarriages of
justice requires an awareness of their potentially adverse effect on identification
*INTLJEVIDENCEPROOF 103 accuracy. To employ a medical analogy; if we
perceive mistaken identification as a disease, which in the criminal justice system we
want to eradicate, there are two strains. We are powerless to prevent the estimator
strain, the sources of which are the physical circumstances in which a culprit was
observed committing an offence or the physiological characteristics of the actors
involved. The most that the criminal justice system can do is to remain vigilant as to
its various symptoms and implement an effective screening programme in an
attempt to detect possible outbreaks of the disease.
The system strain of the disease is a rather different matter. While the disease
remains difficult to diagnose outbreaks are caused by the practices and procedures
followed in the criminal process. It is, therefore, possible to take preventative
measures by adopting and adhering to appropriate regimens concerning the
treatment of eyewitness identification. Wherever there is interaction between a
number of witnesses, or police officers and witnesses, there is a danger that a
witness's memory and recollection of relevant events will be distorted.
There is a consensus among psychologists that the mind does not operate like a
video recording, whereby once events are stored in the memory they can be
recollected by accessing the discrete part of the memory in which they are stored.
Memory processes appear much more complex than this. Researchers have proposed
witness has observed the culprit. Where the police response is swift there exists a
possibility that the culprit could be found in the locality. A street identification might
arise where the witness, having been taken around the area, purports to identify the
culprit among those passing by. It might also occur in circumstances in which
officers, other than those who are in the company of the witness, happen across
someone who resembles the person described by the witness. If the specificity of the
description provided by the witness is such that the likelihood of there being more
than one person bearing a resemblance in the vicinity is remote, there might be
grounds for arrest on the basis of description alone. However, where the description
is more general, the officers might reasonably take the view that an arrest could not
be justified without the witness purporting to identify him as the offender. In such
circumstances an improptu confrontation would be arranged between witness and
suspect for this purpose.
The previous version of the Code (1995) contained inadequate guidance on the
procedures to be followed in attempting to procure a street identification.44 The
latest version (2003) offers some elaboration, requiring the police to make a detailed
record of events as soon as practicable, including, (1) details of the location in which
any identification took place (2) how it was made (3) the prevailing conditions, and
(4) anything said or done by the witness regarding the identification.45 Where there
are several witnesses it requires them to be kept separate and, where practicable,
taken to view the suspect independently.46 If one of the witnesses identifies the
suspect then formal identification procedures have to be adopted in respect of the
witnesses who have not had an opportunity to observe the suspect.47
*INTLJEVIDENCEPROOF 111 As noted, arranging for a witness to attempt to
identify a person detained by the police is an inherently suggestive procedure and
there have been calls from the police for greater guidance on the procedure to be
followed in order to mitigate suggestiveness and avert the risk of any evidence being
excluded.48 In circumstances in which a person has been stopped by the police, all
possible steps ought to be taken to avoid giving the witness the impression either
that the person stopped is under arrest or is subject to such a degree of control by
the police that he must be strongly suspected by them to have committed the
relevant offence. Where practicable, officers standing with a detained suspect ought
to be in plain clothes and steps should be taken to ensure that uniformed officers
and marked police vehicles are not in the immediate vicinity. Furthermore, where a
suspect has been detained but it is asserted by the police that in the absence of a
street identification by the witness there would be insufficient grounds to make an
arrest, there is no requirement (equivalent to those that exist in respect of the
formal procedures) to warn the witness that the person that they are about to see
may or may not be the person seen a short time before and that if he cannot make a
positive identification he should say so. Given the particularly suggestive nature of
these encounters there is a case for issuing an even more emphatic warning.49
It must be appreciated that police officers required to carry out street identifications
are placed in an invidious position. The exigency of establishing, for investigative
purposes, whether those present at the scene were involved in the offence must be
tempered by precautions taken to ensure the reliability of any identification. It has
been pointed out that this demands a measure of detached reflection.50 In this
respect the provision of adequate guidance would appear to be particularly
important. The most recent version of the Code enjoins the police to follow the
principles applicable to the formal procedures set out in the Code as far as
possible.51 Implicit in this direction is that the guidance that is
*INTLJEVIDENCEPROOF 112 provided is less comprehensive than it ought to be.
It is unreasonable to expect officers, who in the very early stages of investigation are
required to take prompt and decisive action, to ensure that the steps they take are
grounded on principles that must distilled from various provisions of a Code of some
length and complexity.
The regimen established in Code D concerning the steps that the police ought to take
in these circumstances is inadequate and it is submitted that such encounters are
attended by a significant risk of an outbreak of the system strain of the
misidentification disease. Whether holding formal procedures following a street
identification is effective in screening for unreliable street identifications made by
witnesses has proved a rather vexed issue for the English courts52 and one that will
not be considered further here.
The most recent revision of the Codes of Practice (2003) represent an extension of
inquisitorial powers that have been conferred on the police in recent years with the
accused increasingly seen as the subject of a police inquiry, the product of which
is available for use by the prosecution for adversarial purposes.61 The changes
effected in Code D bear many of the hallmarks of Packer's crime control model. Many
of the amendments were previewed in temporary modifications to the Code issued in
2002.62 These were accompanied by a letter explaining that the changes had been
made with the objective of speeding up the process:
It is becoming increasingly apparent that problems in arranging identification
parades within a reasonable period of time have *INTLJEVIDENCEPROOF 114
contributed significantly to delays in processing cases and such delays can impact
upon the quality of evidence and compromise the whole process of justice. Ministers
are understandably concerned and want to take immediate measures to tackle these
problems.63
With regard to the assertion that recent reform of Code D is firmly grounded in crime
control values, this statement might be seen as ambivalent if viewed in isolation. Its
references to reducing delay, or in other words increasing efficiency in terms of
speed (crime control values), are offset by a reference to improving the quality of
evidence, which presumably means ensuring that reliable identification evidence is
obtained (a due process value, of course). However, under the current version of the
Code, the police may decline to hold procedures where doing so would serve no
useful purpose in proving or disproving whether the suspect was involved in
committing the offence. This casts the police in the role of arbiter of whether the
objective of adjudicative accuracy at a later stage in the proceedings would be
furthered by holding an identification procedure. The drafters of the Code have
turned away from the imposition of a procedural burden imposed for the purpose of
reducing the risk of error, to a managerial process in which the police are given
considerable discretion to dispense with a burdensome and time-consuming
procedural hurdle. The merits and implications of this development cannot be
considered at length here,64 but worthy of note is that this involves the police in a
speculative, probabilistic exercise: whether the police are best equipped to undertake
such an exercise is something we might reasonably question.
The changes implemented in the most recent revision of Code D (2003) might be a
precursor to a period of rapid and significant growth in the influence of crime control
values in shaping the contours of English criminal procedure. In 2002, the Home
Office and Cabinet Office undertook a review of the Police and Criminal Evidence Act
and the Codes of Practice. Its terms of reference were to identify changes in
procedure that could (1) simplify police procedures, (2) reduce procedural or
administrative burdens on the police; (3) save police resources, and (4) speed up the
process
of
justice.65
In
the
Report
of
the
Review,
which
was
*INTLJEVIDENCEPROOF 115 the subject of vehement criticism,66 it was
suggested that the Codes of Practice could be given a structure based on outcome
rather than process, leaving the police with more scope to use their professional
judgment.67 The congruence of this suggestion and the notion of efficiency
expounded in Packer's paradigm crime control model is both glaring and
unsurprising, given that the Review's terms of reference amounted to an agenda for
reform driven by the values underlying the model.
Procedural due process requirements provide a means of ensuring the protection of a
suspect's fundamental interests. If one rejects as illusory the idea that it is possible
to balance the competing value systems68 in some sort of equilibrium, then one
must also accept that there is a danger that any shift in emphasis towards the crime
control values of procedural informality in the guise of reducing procedural and
strength comes from the sanctions that attach to any violation of it. If the police
perceive that the courts usually allow the prosecution to adduce identification
evidence obtained in breach of the Code the option of non-compliance becomes more
available and attractive. Why should they spend the time and effort necessary to
comply with the provisions if it is likely that no adverse consequences will flow from
any breach? Salembier observes; In such circumstances a participant's actions cease
to be guided by the rules and instead become dependent on its knowledge of
enforcement proclivities.82 The result is an undermining of the regulatory regime.
*INTLJEVIDENCEPROOF 119 It is necessary to add one significant caveat. The
greater any trend towards replacing the Code's bright-line or hard-edged rules with
provisions that confer on the police wider scope to use their professional judgment,
the less relevant any consideration of enforcing compliance with the Code will
become. Enforcing compliance with the provisions of the Code is a worthwhile pursuit
only where following them serves to improve the chances of securing reliable witness
identifications. It was suggested earlier that this is objective is more likely to be met
through issuing prescriptions to the police than the conferring discretion upon them.
Conclusion
It is important that we should avoid the seductive notion that because considerable
efforts have gone into developing some aspects of pre-trial procedure that our
response to the problem of mistaken identification is satisfactory and miscarriages of
justice are now a remote possibility. The nature of memory illustrates the importance
of the regulation of pre-trial procedure, particularly at an early stage of the
investigative process. It has been suggested above that identification procedures
conducted under controlled procedures represent the most effective means of
safeguarding against the risk of miscarriages of justice resulting from mistaken
identifications. However, their effectiveness can be undermined by inadequate
regulation of events prior to the formal procedure. While recent reform of English
procedure has provided greater regulation of what might occur prior to formal
identification procedures, the source of that regulation, Code D, implies that what is
provided remains inadequate. The Code provides for admirable formal identification
procedures that appear sensitive to the empirical findings of psychologists and where
employed are likely to reduce significantly the risk of mistaken identification.
However, changes to the provisions regulating when such procedures must be held
simply gives rise to an increased risk at another point of the process. The importance
of pre-trial procedure as a safeguard requires that departures from it be taken
seriously. Unfortunately, the position in England and Wales is that the response of
the Court of Appeal to such occurrences is at best ambivalent. Viewed from a broad
perspective, the spectre of miscarriage of justice resulting from mistaken
identification remains.
I am indebted to David Ormerod and Diane Birch for their insightful comments on
earlier drafts of this work. I remain solely responsible for errors and deficiencies.
E. & P. 2004, 8(2), 100-119
1.
W. Twining, Rethinking Evidence: Exploratory Essays (Northwestern University Press:
Evanston, IL, 1994) (first published in 1990 by Basil Blackwell Ltd).
2.
Ibid. at 153.
3.
Ibid. at 156.
4.
D. Carson and R. Bull, Psychology and Law: Future Directions in R. Bull and D.
Carson (eds), Handbook of Psychology in Legal Contexts, 1st edn (Wiley: Chichester,
1995) 646.
5.
See generally, P. Ainsworth, Psychology, Law and Eyewitness Testimony (Wiley:
Chichester, 1998) 35-48; A. Kapardis, Psychology and Law, 2nd edn (Cambridge
University Press: Cambridge, 2003) 36-47; B. Cutler and S. Penrod, Mistaken
Identification: The Eyewitness, Psychology, and the Law (Cambridge University
Press: Cambridge, 1995) 79-136.
6.
It appears that identification accuracy is poorest among the relatively young and
older witnesses. The findings of a number of studies indicate a significant decline in
the performance of those aged 60+, see e.g. T. O' Rourke, S. Penrod, B. Cutler and
T. Stuve, The External Validity of Eyewitness Identification Research: Generalising
Across Subject Populations (1989) 13 Law and Human Behavior 385.
7.
Studies indicate greater accuracy where witness and subject are of the same ethnic
appearance; see R. Bothwell, J. Brigham and R. Malpass, Cross-Racial Identification
(1989) 15 Personality and Social Psychology Bulletin 19; G. Wells and E. Olsen, The
Other-Race Effect in Eyewitness Identification: What Can We Do About It? (2001) 7
Psychology, Public Policy and Law 230. For analysis of US procedural safeguards in
this respect, see R. Natarajan, Racialized Memory and Reliability: Due Process
Applied to Cross-Racial Eyewitness Identifications (2002) 78 New York University
Law Review 1821; and in England and Wales, see T. Valentine, N. Harris, A. Colom
Piera and S. Darling (2003), Are Police Video Identifications Fair to African-Caribbean
Suspects? (2003) 17 Applied Cognitive Psychology 459.
8.
Although there have been conflicting findings there is evidence that high levels of
stress experienced during observation of an event can have an adverse effect on
memory, see generally Kapardis, above n. 5 at 40-4.
9.
Kapardis, above n. 5 at 38, has cautioned against the common-sense assumption
that the identification accuracy is likely to increase in line with duration of
observation on the grounds of selective attention. It appears that witnesses who
experience stress during observation tend to over-estimate the duration of the event,
see I. Sarason and R. Stroops, Test Anxiety and the Passage of Time (1978) 46
Journal of Consulting and Clinical Psychology 189; B. Cutler, S. Penrod and T.
Martens, The Reliability of Eyewitness Identifications: The Role of System and
Estimator Variables (1987), 11 Law and Human Behavior 223.
10.
See Cutler, Penrod and Martens, above n. 9; E. Loftus, G. Loftus and J. Messo, Some
Facts About Weapon Focus (1987) 11 Law and Human Behavior 55; N. Steblay, A
Meta-Analytic Review of the Weapon Focus Effect (1992) 16 Law and Human
Behavior 413.
11.
G. Wells, Applied Eyewitness Research: System Variables and Estimator Variables
(1978) 36 Journal of Personality and Social Psychology 1546; G. Wells, Eyewitness
41.
These are the recommendations that (1) the person who conducts the procedure
should not know which person is the suspect, and (2) the confidence that a witness
holds in any identification made be recorded.
42.
G. Davies and T. Valentine, Codes of Practice for Identification (1999) 7 Expert
Evidence 59. See also M. Kebbell, The Law Concerning the Conduct of Lineups in
England and Wales: How Well Does It Satisfy the Recommendations of the American
Psychology Law Society? (2000) 24 Law and Human Behavior 309, and I. McKenzie,
Eyewitness Evidence: Will the United States Guide for Law Enforcement Make Any
Difference? (2003) 7 E & P 237.
43.
Code D, para. 3.4 (2003).
44.
Code D, para. 2.17 (1995), A police officer may take a witness to a particular
neighbourhood or place to see whether he can identify the person whom he said he
saw on the relevant occasion. Before doing so, where practicable a record shall be
made of any of the suspect. Care should be taken not to direct the witness's
attention to any individual.
45.
Code D, para. 3.2(d).
46.
Code D, para. 3.2(c).
47.
Code D, para. 3.2(d).
48.
See A. Slater, The Universal Video Booth: Planned and Tested, Police Research Award
Scheme (Home Office, Policing and Reducing Crime Unit: 1999) 18-23; G. Pike, N.
Brace and S. Kynan, The Visual Identification of Suspects: Procedures and Practice,
Briefing Note 2/02 (Home Office, Policing and Reducing Crime Unit: 2002), who
reported that a majority of police officers interviewed on the subject of improving
identification procedures felt that current guidance on street identifications could be
improved. For an example of a case in which the procedures adopted by the police
appear poor, see R v O'Brien [2003] EWCA Crim 1370 (see commentary by A.
Roberts (2003) 68 JCL 27).
49.
The Technical Working Group of the US National Institute of Justice, above n. 38,
recommended that the witness should be told that: It is as important to clear
innocent persons from suspicion as to identify guilty parties, The person who
committed the crime may or may not be present and Regardless of whether or not
an identification is made, the police will continue to investigate the incident.
50.
See D. Birch, commentary on R v Hickin [1996] Crim LR 584 at 586.
51.
Code D, para. 3.2.
52.
See R v Popat [1998] 2 Cr App R 208; R v Forbes [1999] 2 Cr App R 501, CA; R v
Popat (No. 2) [2000] 1 Cr App R 387; R v Forbes [2001] 1 Cr App R 430, HL.
53.
A. Sanders and R. Young, The Rule of Law, Due Process and Pre-Trial Criminal
Justice (1994) 47 Current Legal Problems 125.
54.
See M. Freeman, Law and Order in 1984 (1984) 37 Current Legal Problems 175.
55.
Sanders and Young, above n. 53 at 129.
56.
Some of these are summarised by A. Ashworth, The Criminal Process: An Evaluative
Study (Oxford University Press: 1998) 27-8.
57.
H. Packer, Limits of the Criminal Sanction (Stanford University Press: 1968); see also
A. Sanders and R. Young, Criminal Justice, 2nd edn (Butterworths: London, 2000)
22-32.
58.
Sanders and Young, above n. 53; R. Young and A. Sanders, Royal Commission on
Criminal Justice: A Confidence Trick? (1994) 14 Oxford Journal of Legal Studies 435.
59.
Code D, para. 2.1.
60.
Code D, para. 2.3.
61.
See E. Cape, The Revised PACE Codes of Practice: A Further Step Towards
Inquisitorialism [2003] Crim LR 355.
62.
PACE (Codes of Practice) (Temporary Modifications to Code D) Order 2002 (SI 2002
No. 615).
63.
Identification Procedures: Introduction of Changes to Section 2 of PACE Code D,
Home Office, Police Leadership and Powers Unit, 25 March 2002.
64.
For analysis, see A. Roberts, Identification Evidence: Rule, Principle, Discretion and
Reform of Code D after Forbes (2002) 66 JCL 250; A. Roberts and S. Clover,
Managerialism and Myopia: The Government's Consultation Draft on PACE Code D
[2002] Crim LR 883; D. Wolchover and A. Heaton-Armstrong, Farewell to Forbes
(2003) 7 Archbold News 4; P. Bogan, Forbes Alive and Well (2003) 9 Archbold News
5; D. Wolchover and A. Heaton-Armstrong A Reply to Forbes Alive and Well (2003)
9 Archbold News 6.
65.
Report of the Joint Home Office/Cabinet Office Review of the Police and Criminal
Evidence Act 1984 (Home Office/Cabinet Office: 2002) at para. 2.
66.
See M. Zander, The Joint Review of PACE: A Deplorable Report (2003) 153 NLJ 204.
67.
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