In a recent trial my opponent was reminiscing about the ubiquity of verballing before the Police and Criminal Evidence Act 1984 was enacted. He then asked me if I remembered those days. A perfectly reasonable question unless you know that I was born in 1980!
It can be very difficult for barristers of my generation to imagine what criminal justice was like before that raft of essential safeguards was enshrined in statute. So many requirements of PACE are second nature to us comparative youngsters at the Bar. For example the execution of identification procedures in relation to civilian witnesses is now a wholly formalised and settled process which ought to prevent any defence objection.
Unfortunately, however, police officers purporting to make identifications sometimes believe themselves to be a special case. Just as verballing has vanished so CCTV has proliferated to a remarkable extent. This presents obvious opportunities for identification of criminals but also real pitfalls if that identification is not capable of withstanding judicial scrutiny.
I recently defended in a burglary case, instructed by Shaw Graham Kersh Solicitors where CCTV had been retrieved from homeowners. Footage was circulated to local officers and our client was purportedly identified in footage relating to two burglaries by two separate officers.
Nearly 10 years have elapsed since the Court of Appeal in Regina v Smith and Others  EWCA Crim 1342 handed down clear guidance as to what should have happened. Where a police officer attempts to identify a suspect from images, (s)he is subject to the same principles and procedures as a civilian witness and thus must comply with the rules and spirit of PACE Code D:
A police officer asked to view a CCTV recording is not in the same shoes as a witness asked to identify someone he has been committing a crime. But […], the safeguards which the Code is designed to put in place are equally important in cases where a police officer is asked to see whether he can recognise anyone in a CCTV recording.
It is important that the police’s officer initial reactions to the recording are set out and available for scrutiny. Thus, if the police officer fails to recognise anyone on first viewing but does so subsequently those circumstances should be noted. The words that the officer uses by way of recognition may also be of importance […] as should any words of doubt.
Even if police officers are not avid readers of the Criminal Law Review as a minimum they should know and be able to demonstrate adherence to the mandatory requirements of Code D of PACE which stipulates at paragraphs 3.34 -3.37 that whilst the viewing takes place, a contemporaneous note of the following must be made:
a. Whether the person knew or was given information concerning the name or identity of any suspect.
b. What the person has been told before the viewing about the offence, the person(s) depicted in the images or the offender and by whom.
c. How and by whom the witness was asked to view the image or look at the individual.
d. Whether the viewing was alone or with others and if with others, the reason for it.
e. The arrangements under which the person viewed the film or saw the individual and by whom those arrangements were made.
f. Whether the viewing of any images was arranged as part of a mass circulation to police and the public or for selected persons.
g. The date time and place images were viewed or further viewed or the individual was seen.
h. The times between which the images were viewed or the individual was seen.
i. How the viewing of images or sighting of the individual was controlled and by whom.
j. Whether the person was familiar with the location shown in any images or the place where they saw the individual and if so, why.
k. Whether or not on this occasion, the person claims to recognise any image shown, or any individual seen, as being someone known to them, and if they do:
(i) the reason;
(ii) the words of recognition;
(iii) any expressions of doubt;
(iv) what features of the image or the individual triggered the recognition.
If this is done allegations of bad faith can be rebutted, the quality of the purported recognition can be discerned and challenged and, importantly from the prosecutor's perspective, s.78 exclusionary applications can be seen off.
Unfortunately for the prosecution in my case almost none of the safeguards had been adhered to either because the officers involved were ignorant of the Code D requirements or they chose not even to pay them lip service. Consequently an application to exclude the crucial identification evidence was acceded to and no evidence was offered.
It would be the simplest imaginable thing for the police to design a pro forma template to circulate with still or moving images of suspects which would require any officer purporting to recognise a suspect to demonstrate step by step compliance with Code D. If more prosecutions are not to end face down in the sawdust this needs to happen now.