Identification evidence can be powerful, but confidence is not the same as reliability. The procedure used, the images selected, the witness’s earlier description and any irregularity may all affect the fairness and weight of the evidence.
Key points
What to know at a glance
- Obtain the witness’s earliest description
- Examine the complete procedure, not only the selection
- Record objections at the time
- Consider prior exposure and contamination
- Treat identification evidence as capable of honest error
Why identification evidence requires care
Memory is reconstructive and can be affected by stress, lighting, distance, duration, prior exposure and suggestion. A witness may be honest but mistaken. The defence should examine the original description and the circumstances before focusing only on the later identification.
What a VIPER procedure involves
A video identification process ordinarily presents a sequence of moving images from which the witness is asked whether the person seen is present. Rules govern the selection and presentation of images, instructions to the witness and records of the process. The detail matters because an apparently small difference may create unfair prominence.
The solicitor’s role
The solicitor can advise the suspect, observe the process where permitted, raise objections, seek records and ensure concerns are documented. Issues may include image quality, distinctive features, concealment, previous media exposure or failure to follow the applicable code.
Earlier descriptions and contamination
The first account given by a witness can be especially important. Social-media posts, news images, conversations with others or repeated viewing can contaminate memory. The chronology should identify what the witness saw before the formal procedure.
Challenging irregularity
A breach does not automatically exclude evidence, but the court may consider fairness, reliability, prejudice and available safeguards. The defence may seek exclusion, directions, cross-examination or expert evidence depending on the issue.
Practical steps
Do not contact witnesses or attempt your own identification exercise. Preserve relevant photographs and records. Give the solicitor a detailed account of appearance, clothing and location at the relevant time, including any distinctive feature that may affect the procedure.
Common questions
Frequently asked questions
Can I refuse a procedure?+
The legal consequences depend on the circumstances and powers being used. Obtain advice before deciding.
Does a positive identification prove guilt?+
No. It is one item of evidence and must be assessed with the rest of the case.
Can images be altered?+
Procedures may permit measures to address distinctive features, but fairness and consistency are important.
Can the evidence be excluded?+
Potentially, where the legal tests are met. A breach alone does not guarantee exclusion.
Primary legal sources
Legislation and official guidance
These sources are provided for transparency. Legislation may be amended or commenced in stages, and reading the statutory text is not a substitute for advice.