IDENTIFICATION PARADES UPHOLDING THE INTEGRITY OF THE CRIMINAL JUSTICE PROCESS? by YVETTE MARIE TEMSLEY A thesis submitted to The University of Birmingham for the degree of DOCTOR OF PHILOSOPHY Faculty of Law The University of Birmingham September 1999 University of Birmingham Research Archive e-theses repository This unpublished thesis/dissertation is copyright of the author and/or third parties. The intellectual property rights of the author or third parties in respect of this work are as defined by The Copyright Designs and Patents Act 1988 or as modified by any successor legislation. Any use made of information contained in this thesis/dissertation must be in accordance with that legislation and must be properly acknowledged. Further distribution or reproduction in any format is prohibited without the permission of the copyright holder. ABSTRACT Evidence from eyewitnesses is often the starting point for police investigations and it is estimated that it plays an important role in one quarter of all contested Crown Court cases. However, the memory is a fragile and malleable instrument which can produce unreliable yet convincing evidence. Because mistaken witnesses can be both honest and compelling, the risk of wrongful conviction in eyewitness identification cases is high, as is illustrated in a number of famous miscarriages of justice. This thesis assesses the sufficiency of the protections offered to defendants in cases involving eyewitness identification by examining psychological research on memory, police procedures for the collection of evidence from eyewitnesses, and judicial discretion to exclude unreliable evidence found in R v Turnbull and section 78 of the Police and Criminal Evidence Act. In interview, startling levels of guessing were reported by witnesses attending identification procedures; and suspects were largely unaware of their rights. Current identification procedures are time-consuming and inefficient; and psychological research offers some guidance but few answers, precluding the usefulness of expert evidence. The thesis concludes that an increase in specialised identification officers, reform of procedures to allow for greater use of video identification, guidelines on the exercise of discretion under s.78, and judicial education regarding the importance of using a comprehensive Turnbull direction are required before an adequate level of procedural and evidential protection against erroneous identification can be offered to suspects. ACKNOWLEDGEMENTS In the process of researching and writing this thesis, I received help from number of generous and supportive people. First of all, I must thank my family, especially my parents, who gave me the chance to leave behind a future on the factory floor. I will always be indebted to them for their love, support and far-sightedness in the raising of their children. Secondly, my partner, Maikali, who has coped with so much during the final redrafting of the thesis: thankyou for your belief in me and your seemingly endless support and love: it is appreciated. Great thanks also go to my supervisor, Professor John Baldwin and to all the West Midlands police officers and civilian staff who opened their doors to me in order to complete the empirical studies for the thesis. Friends and colleagues in New Zealand have offered advice, encouragement and understanding: thanks especially to Leigh and Alison, for making the transition to a new country so easy and so much fun; to Kirstin Harvey and Claire Baylis for the support only other women can give around the workplace, you are both such great friends; to my secretary, Chris Polglase; and to Warren Young and Neil Cameron, who are friends, mentors and were extremely understanding about my need to take a short break from another research project in order to complete the final draft of this thesis. TABLE OF CONTENTS Chapter One: Introduction Identification Parades and the Criminal Process 1 A substantial cause of wrongful conviction? 3 Evaluating identification evidence and procedures 6 Synopsis 8 PART ONE: COLLECTING EYEWITNESS EVIDENCE Chapter Two: Psychological Research on Eyewitness Identification 13 Psychological theory on memory processes 15 Psychological experimentation on identification procedures 54 Are experimental findings forensically relevant? 65 Chapter Three:Collecting Identification Evidence 73 Early attempts to regulate identification procedures 74 Code of Practice D 85 Chapter Four: Suspects' Perceptions of Identification Procedures 119 Conducting the interviews 120 Findings 124 Chapter Five: Witnesses and Identification Procedures 146 Conducting the interviews 149 Findings 158 Chapter Six: Observations of Identification Procedures 186 How Identification Procedures are Organised 187 Breaches of Code of Practice D 192 Cancellations and Postponements 195 Volunteers for Identification Parades 200 Reform Suggestions 203 PART TWO: PRESENTING EYEWITNESS EVIDENCE IN COURT Chapter Seven:Exclusion of Evidence and the Warning to the Jury 209 The Turnbull Guidelines 210 Code D and the Exclusion of Evidence under s.78 PACE 238 Chapter Eight: Expert Evidence in Eyewitness Identification Cases 252 Criticisms of Expert Evidence 253 The Rules Governing the Admission of Expert Evidence 263 Expert Evidence on Eyewitness Identification Issues 279 Conclusion: Alternative Uses of Psychological Knowledge 296 Chapter Nine: Conclusion - Identification Parades: Upholding the Integrity of the Criminal Process? 299 Procedural and Evidential Safeguards: Furthering the Protective Principle? 299 Can Psychology Further the Quest to Uphold the Integrity of the Criminal Justice Process? 304 Forward into the Twenty-First Century 305 APPENDICES Appendix A: Questionnaire for Suspects 307 Appendix B: Supplementary Results from Interviews with Suspects 308 Appendix C: Questionnaire for Witnesses 310 Appendix D: Supplementary Results from Interviews with Witnesses 315 Appendix E: Notice to the Suspect 320 Appendix F: Figures from Identification Suites 331 TABLE OF CASES 334 BIBLIOGRAPHY 341 CHAPTER ONE INTRODUCTION IDENTIFICATION PARADES AND THE CRIMINAL PROCESS Introduction This thesis assesses the current system of collection and presentation of identification evidence by evaluating the successes and failures of police procedures, the use of psychological research findings, and evidential safeguards in contested cases. Wide-ranging changes in the methods used to collect eyewitness evidence are proposed to increase the efficiency and reliability of police procedures. As over 70 per cent of Crown Court cases proceed on a plea of guilty, 1 only a minority of defendants will be afforded the protections of the Turnbull 2 guidelines and section 78 of the Police and Criminal Evidence Act 1984 ("PACE"). Ensuring that issues of reliability and fairness are assessed at the pre-trial stage is therefore of prime importance. It is estimated that eyewitness identification evidence plays an important role in one quarter of contested Crown Court cases and is a less important part of the evidence in a further 20 to 25 per cent of cases.3 Although advances in the use of scientific identification techniques such as DNA profiling may lead to the conclusion that eyewitness identification would have diminished in importance, identification evidence is still widely thought to be a principal cause of miscarriages of justice.4 Unfortunately, protections against the admission of unreliable evidence are inconsistently applied. The provisions governing police procedures on 1 The figure is much higher in magistrates' courts, which deal with over 93 per cent of criminal cases: Zander, M., and Henderson, P., The Royal Commission on Criminal Justice Crown Court Study Research Study No. 19 (1993 London:HMSO), 2. 2 [1976] 3 All E.R. 549. 3 According to Zander and Henderson's 1993 Crown Court Study, op.cit., 92. 4 See, for example, Rattner, A., "Convicted but innocent: Wrongful conviction and the criminal justice system" (1988) 12 Law and Human Behavior 283. The increased use of CCTV in city centres may result in less reliance upon individual eyewitnesses, or at least support for their identifications, for offences which are commonly committed in public, such as street robbery. This is dependant upon high quality video equipment being available. There has been no systematic study of the difference CCTV may have made, but the more traditional store and bank cameras do not offer a high enough quality tape to allow for confirmation of an eyewitness' identification. This was evidence by the continued use of bank employees as live eyewitnesses in two cases during the empirical study as reported in Chapters 4 and 5 of this thesis. identification in England and Wales are some of the best in the world,5 but their successful application is reliant upon adequate training of officers involved at all stages of the process. Specialist identification officers in the studies for this thesis followed the provisions carefully, but those involved as witness officers or as temporary identification officers breached the Code of Practice, often unwittingly. The importance of reliable identification procedures cannot be overemphasised, because once identification evidence reaches court, there is no coherent approach to the exercise of the general discretion to exclude improperly obtained evidence under section 78 of PACE, nor is there a Turnbull warning to the jury in almost half the cases where identification is an important issue.6 This thesis investigates why eyewitness identification is