Formal procedure in section 45
8.3The admissibility of visual identification evidence is provided for in s 45, in conjunction with the definition of “visual identification evidence”:
(1) In this Act, unless the context otherwise requires,-
visual identification evidence
means evidence that is—
(a) an assertion by a person, based wholly or partly on what that person saw, to the effect that a defendant was present at or near a place where an act constituting direct or circumstantial evidence of the commission of an offence was done at, or about, the time the act was done; or
(b) an account (whether oral or in writing) of an assertion of the kind described in paragraph (a)
45 Admissibility of visual identification evidence
(1) If a formal procedure is followed by officers of an enforcement agency in obtaining visual identification evidence of a person alleged to have committed an offence or there was a good reason for not following a formal procedure, that evidence is admissible in a criminal proceeding unless the defendant proves on the balance of probabilities that the evidence is unreliable.
(2) If a formal procedure is not followed by officers of an enforcement agency in obtaining visual identification evidence of a person alleged to have committed an offence and there was no good reason for not following a formal procedure, that evidence is inadmissible in a criminal proceeding unless the prosecution proves beyond reasonable doubt that the circumstances in which the identification was made have produced a reliable identification.
(3) For the purposes of this section, a formal procedure is a procedure for obtaining visual identification evidence—
(a) that is observed as soon as practicable after the alleged offence is reported to an officer of an enforcement agency; and
(b) in which the person to be identified is compared to no fewer than 7 other persons who are similar in appearance to the person to be identified; and
(c) in which no indication is given to the person making the identification as to who among the persons in the procedure is the person to be identified; and
(d) in which the person making the identification is informed that the person to be identified may or may not be among the persons in the procedure; and
(e) that is the subject of a written record of the procedure actually followed that is sworn to be true and complete by the officer who conducted the procedure and provided to the Judge and the defendant (but not the jury) at the hearing; and
(f) that is the subject of a pictorial record of what the witness looked at that is prepared and certified to be true and complete by the officer who conducted the procedure and provided to the Judge and the defendant (but not the jury) at the hearing; and
(g) that complies with any further requirements provided for in regulations made under section 201.
(4) The circumstances referred to in the following paragraphs are good reasons for not following a formal procedure:
(a) a refusal of the person to be identified to take part in the procedure (that is, by refusing to take part in a parade or other procedure, or to permit a photograph or video record to be taken, where the enforcement agency does not already have a photo or a video record that shows a true likeness of that person):
(b) the singular appearance of the person to be identified (being of a nature that cannot be disguised so that the person is similar in appearance to those with whom the person is to be compared):
(c) a substantial change in the appearance of the person to be identified after the alleged offence occurred and before it was practical to hold a formal procedure:
(d) no officer involved in the investigation or the prosecution of the alleged offence could reasonably anticipate that identification would be an issue at the trial of the defendant:
(e) if an identification of a person alleged to have committed an offence has been made to an officer of an enforcement agency soon after the offence was reported and in the course of that officer’s initial investigation:
(f) if an identification of a person alleged to have committed an offence has been made to an officer of an enforcement agency after a chance meeting between the person who made the identification and the person alleged to have committed the offence.
Location of formal process in legislation
8.4It has been suggested to us that the formal procedure outlined in subs (3) may be better placed in regulation rather than primary legislation. There are facets of the formal procedure that make it appropriate for inclusion in regulations. First, a formal identification process can be regarded as a technical area that does not require parliamentary consideration. Second, it is an area which tends to be dictated by current research; putting the process in regulation provides more flexibility for the process to be amended if and when the research suggests change is desirable.
8.5There is precedent for this approach in the Act. For instance, the Justice and Electoral Committee recommended that the discretionary criteria for giving directions relating to children’s evidence be removed from (what is now) s 125 to instead be addressed in regulations. Its reason for doing so was that the flexibility of regulations would more readily accommodate developments in understanding and technique relating to children’s evidence. Accordingly, this is now covered by reg 49 of the Evidence Regulations 2007.
8.6We have some sympathy for the suggestion that the formal procedure be moved to regulation. The procedure currently outlined in s 45 is based on research on identification evidence that was current at the time the Law Commission developed its Evidence Code. There is a risk that it may become outdated if the prevailing view changes.
8.7 However, the matter of how amendments should be made to provisions in the Evidence Act was a matter that was squarely before the Justice and Electoral Committee when it was considering the Bill. It stated:
Some submitters suggested that the bill was too prescriptive and that many of the provisions could [be] dealt with by regulation. We spent a considerable time discussing this matter and heard from the Legislation Advisory Committee and representatives of the judiciary. We believe it is appropriate that the content of the bill be contained in statute, as a comprehensive evidence code is too important to be relegated to regulations.
8.8The Justice and Electoral Committee amended (what is now) s 45 and the regulation making power (what is now s 201) so that the formal procedure must also comply with any further requirements provided for in regulation. The inference from this amendment, along with the Select Committee’s discussion about the content of the Bill being retained in statute, is that the Select Committee agreed that the formal identification procedure is a matter that should be dealt with in primary legislation. This view is reinforced by the fact that the Select Committee recommended the substance of another provision be moved to regulations (discretionary criteria for giving directions relating to children’s evidence) but chose not to do so in relation to the formal procedure contained in s 45.
8.9As a practical matter, establishing a formal identification regime requires a significant amount of training for police. Having the procedure prescribed in legislation ensures that it will not change too often or too quickly.
8.10For these reasons, we do not recommend that the formal procedure outlined in s 45 be moved to regulation.
“Person to be identified”
8.11Originally, the Law Commission intended for the formal procedure set out in its Evidence Code to apply to the identification of people other than alleged offenders as “in some cases such identifications are as critical as identifying the offender”. However, the definition of “visual identification evidence” in cl 4(1) of the Bill as introduced referred only to the defendant, and not “any other person”. This change was not reflected in what became s 45 of the Act, which continued to refer to “the person to be identified”.
8.12We consider that, in light of the change that was made to the s 4(1) definition of “visual identification evidence”, it is unnecessary for the paragraphs of s 45(3) and (4) referred to above to use the phrase “person to be identified”, and that there is scope for confusion by using this broad term. We are of the view that it would be clearer for this phrase to be replaced with “suspect” in each of these paragraphs.
8.13This will still mean that there is a difference in terminology between the s 4(1) definition of “visual identification evidence”, which uses the word “defendant”, and s 45(3)(b), (c) and (d) and s 45(4)(b) and (c), which will use the word “suspect”. However, we note that s 45(3) and (4) deal with the obtaining of visual identification evidence, which will occur only when there is a suspect, whereas by the time the resulting visual identification evidence (as defined in s 4(1)) is used in court, the suspect will have become a defendant. As such, there is a legitimate reason for using different terminology.
R15 We recommend that the term “person to be identified” in s 45(3)(b), (c) and (d) and s 45(4)(b) and (c) be replaced with “suspect”.
Requirement that identification take place soon after reporting of offence
8.14 One of the “good reasons” not to follow a formal procedure is when the identification is made “soon after the offence was reported”. The Law Commission has previously given as an example a police officer who drives around the vicinity with the victim immediately after the crime is reported, to see if the victim can spot the alleged offender. However, as is readily apparent, “soon after the offence occurred” is not necessarily the same thing as “immediately after a crime is reported”.
8.15 In R v Edmonds, the Court of Appeal held that an identification one day after the offence was reported, but four days after it was alleged to have been committed, came within the provision. While this was probably correct as a matter of statutory interpretation, it could lead to bizarre outcomes where many years pass between when an offence is alleged to have happened and when it is reported, but identification occurs very soon after the latter. On the face of it, this would fit within the provision.
8.16We consider that the provision should be amended to read “soon after the offence occurred”. This better reflects the rationale behind the exception: that an identification made shortly after an incident (for example, when the offender is still milling about the area and his or her appearance is fresh in the complainant’s mind) is likely to be sufficiently reliable such that a formal procedure is not required.
R16 We recommend amending s 45(4)(e) to replace “soon after the offence was reported” with “soon after the offence occurred”.
List of good reasons
8.17 The Law Commission originally recommended that the list of “good reasons” for not following a formal procedure should be closed. Our rationale for this was that “the list reflects sound policy considerations and that, because the existence of a “good reason” assures admission, the list should be exhaustive.” Further, even if none of these factors exists, the identification evidence will still be admissible if the prosecution can prove beyond reasonable doubt that the circumstances in which the identification was made were likely to have produced a reliable identification (s 47(2) of the Evidence Code). However, in the Bill as introduced, the list of “good reasons” was no longer expressly exhaustive. It has been confirmed by the Supreme Court that this means that the list of “good reasons” in s 45(4) is not closed.
8.18The primary “good reason” that has been added to the list is where the identification is of an alleged offender who “was sufficiently known to the witness before the time of the alleged offending that a formal procedure would be of no utility”. It has been argued that such an extension was unnecessary as this situation would already fit into s 45(4)(d), on the basis that “[w]here an identification procedure would not serve a useful purpose, it is surely the case that it could not at the time be “reasonably anticipated” that identification would be an issue.”
8.19 Beyond this, the courts have noted that they should be cautious before extending the list of good reasons, especially when s 45(2) allows an alternative method of rendering identification evidence admissible in circumstances where its reliability is assured. The Court of Appeal in Tararo v R noted that any additions to the list should be for generic situations rather than for a situation described by the facts of a particular case.
8.20While we remain of the view that the list of good reasons should have been exhaustive, Parliament specifically left it open for the courts to add further “good reasons” where appropriate. We do not consider, therefore, that it would be appropriate to recommend that the list now be made exhaustive.
8.21In relation to whether we should add identification of a person known to the witness to the list, we agree with the argument by Richard Mahoney and others that “recognition evidence” that reached the standard required by the courts would also meet the “good reason” that it could not be “reasonably anticipated” that identification was an issue. As such, we do not see any benefit in formally including this in the list.
8.22We are also aware that other “good reasons” have been suggested in cases that have come before the courts, such as identification evidence obtained by corrections officers (ie not an enforcement agency) in circumstances where the identifier may not survive, and cases “which involve the identification of defendants from a small pool of suspects in circumstances of surrounding investigative control”. However, we do not consider that these are sufficiently established to be included (and, indeed, the latter was rejected by the Court of Appeal, at least in the circumstances of the case).