Eyewitness Identification and the English Courts:

A Century of Trial and Error

Graham Davies & Laurence Griffiths

School of Psychology, University of Leicester,
United Kingdom

Contact details:

Professor G. M. Davies
School of Psychology
Henry Wellcome Building
University of Leicester
Lancaster Road
Leicester LE1 9HN
United Kingdom

Phone: 44 (0)116 229 7176

Fax: 44 (0)116 229 7151
e-mail: gmd@le.ac.uk
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Abstract

A review is presented of over a century of identification practice in England and Wales

and describes some illustrative cases of persons innocent of the crime, but who were

nevertheless convicted on the basis of honest but mistaken identification. The review

demonstrates that despite changes to procedure instituted by the Devlin Report in 1976

and developments in the use of video parades as an alternative to the traditional live

parade, miscarriages of justice still occur. The authors argue that, in the light of

developments in CCTV and DNA profiling and of what is now known about the inherent

fallibility of human identification processes, it is timely to look again at the rule

embedded in English common law that a single confident identification of a suspect by a

credible witness is sufficient to convict an accused.

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According to Devlin (1976), the first recorded use of an identification parade in England

was by the London Metropolitan Police in 1860. Police forces the world over use such

parades(or ‘line-ups’ as they are termed in the United States) as a means of establishing

whether a suspect held by the police is in fact the person an eyewitness saw at the scene

of the crime. As a means of establishing identity, identification parades have clear

advantages over such suggestive procedures as confrontation (The witness is shown the

suspect and asked ‘Is this the man that you saw?’) or dock identification (The witness is

called upon to confirm at trial that the person they saw in connection with the crime is the

person standing in the dock) (Rust & Tredoux, 1997). However, proof of guilt based

purely on the basis of a positive identification at a parade has led to many miscarriages of

justice in England and Wales. As long as a single confident identification remains

sufficient to prove a case against an accused, such problems seem likely to persist

(Thomson. 1995). This paper surveys the history of identification procedures in England

and Wales and some of the celebrated cases of mistaken identification which have

resulted from their use (or misuse). It divides that history into three phases: from the

dawn of the Twentieth Century until the landmark Devlin Report in 1976; the Devlin

Report and its immediate aftermath, and post-Devlin until today. It considers the

evolution and refinement of procedural requirements to establish identity, but queries

whether the identification process can ever be entirely immune from the inherent

psychological fallibility of human perception and memory and whether the time has now

come for the law to acknowledge this..

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Identification Pre-Devlin

The Case of Adolph Beck

When the Metropolitan Police introduced formal identification parades, they also

produced a series of guidelines designed to ensure that they were fair to the accused and

the witness (Devlin, 1976). However, this simple guidance was insufficient to save

Adolph Beck from twice being found guilty on the basis of identification evidence alone

for crimes he did not commit. In 1895, Beck was first convicted for a series of confidence

tricks on vulnerable young women, on the basis of confident identifications of him by 10

of the con-man’s victims. Beck served six years in prison before being released in 1901,

only to be convicted once more in 1904 for a new series of the same audacious frauds,

where again, the only evidence against him were positive identifications, this time by

four more victims. Despite his denials, Beck was found guilty by a jury and only the

timely deferral of sentence by a sceptical judge prevented a further long prison term. In

the interim, the real fraudster, Wilhelm Meyer, was arrested in the act of pawning some

of the proceeds of his crimes. Beck was pardoned and awarded compensation and a Court

of Enquiry set up to investigate the causes of these twin miscarriages of justice (Watson,

1924).

The Enquiry noted that Beck and Meyer bore only a passing resemblance to each other,

but that the persons who stood on the parade with Beck (the foils) were haphazardly

recruited from passers-by and all were younger than Beck. Only one had a moustache

which had figured prominently in the original descriptions of the suspect. The Enquiry

concluded that:
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“Evidence as to identity based upon personal impressions, however bona fide, is perhaps

of all classes of evidence the least to be relied upon, and therefore, unless supported by

the facts, an unsafe basis for the verdict of a jury” (Watson, 1924, p. 250).

The major legal consequence of the Enquiry was the establishment of the Court of

Criminal Appeal but the law on identification was not changed. The Metropolitan Police

guidelines were slightly revised, but their status remained advisory rather than mandatory

(Shepherd, Ellis & Davies, 1982).

Major Sheppard and the 1929 Royal Commission

In 1925, a further circular was issued to all forces regarding the conduct of parades. It is

noteworthy that many of the precautions which would now be regarded as essential to a

fair parade were already in place in England by this date. They included that an officer,

other than the investigating officer, should be in charge of the parade; that witnesses

should not be shown photographs or descriptions of the suspect prior to the parade; that

the suspect should be placed as far as possible among persons of similar height, age and

general appearance and that a full record of every circumstance at the parade should be

made, irrespective of the outcome (see appendix 6, Report of the Royal Commission on

Police Powers and Procedure, 1929). However, the mere existence of this new guidance

was insufficient to prevent a further case of mistaken identity, this time involving a Major

Sheppard, a military officer of impeccable rectitude, who was accused of stealing money

from a prostitute (Rolph, 1957).

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Again, the only evidence against Major Sheppard was of identification: by the robbed

woman herself and the hall porter of the block of flats from which she operated. Like

Beck, Sheppard was arrested after being accosted and accused in the street by the

outraged victim. Like Beck, the identification parade left much to be desired in terms of

composition. Major Sheppard reported that the members of the parade had been hastily

assembled from passers-by and that “None looked the least like an army officer and four

of them were wearing chokers [high neckties then favoured by members of the working

class]” (Rolph. 1957, p. 37). While the hall porter also eventually identified Major

Sheppard as the ‘Major Trevor’ who had carried out the theft, an alert detective,

dissatisfied with this tentative identification, discovered and arrested the real ‘Major

Trevor’ and a further miscarriage of justice was averted.

A further Court of Enquiry was set up under J.F.P. Rawlinson which confirmed the

haphazard way the parade was assembled and conducted and his report emphasised the

importance of ensuring foils were of similar appearance and recommended that suspects

should have the right to legal representation at a parade (Rawlinson, 1925). The

guidelines were further revised and it seems likely that it was at this time that ‘standards

of dress and grooming’ was added to the list of criteria to consider in selecting foils

(Shepherd et al., 1982). The Rawlinson Report was also considered by the Royal

Commission on Police Powers and Procedures in 1929 who commented that “At best,

identification parades are rough and ready tests, but on this account the accused should

only be identified when the recollection of his appearance is clear and sharp” (Report of

the Royal Commission Report, p. 26). The Commission’s report is also notable for
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anticipating several of the issues currently under debate today. They were alert to the

possibility of identification through elimination: there is a danger that the witness will

pick “not the accused person, but the person in the parade who most resembles their

recollection of the culprit, disregarding apparently the alternative that he may not be

present at all” (Royal Commission Report, pp. 46-47). The Commission’s remedy was to

propose experiments on what are now termed ‘blank parades’-where the witness is

required to inspect two parades and the accused only appears in one-to test for a readiness

to chose purely on the basis of resemblance. However, this recommendation was not

taken up and the legal status of identification evidence as proof of guilt remained

unaffected by the Report.

The Devlin Report and its Consequences

The revised 1925 Guidelines remained in force for more than 40 years but that did not

still concerns over cases based on identification evidence alone. In 1961, the Lord Chief

Justice drew the attention of his fellow judges to the need for vigilance in cases involving

identification evidence and in 1963, two distinguished academic lawyers published a

critique of the contemporary law and procedure on identification which called for reform,

though not for the outright abolition of conviction by identification alone (Williams &

Hammelman, 1963). Public concern over mistaken identification was aroused once more

by the case of James Hanratty who was hung for the murder of Michael Gregson in 1961

(Foot, 1971). A key element of the prosecution case was the identification of Hanratty by

Valerie Storie who had spent some time in the company of the murderer as he drove

around in Gregson’s car and who herself had been badly wounded in the fusillade of
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shots which killed Gregson. Questions were raised as to the fairness of the parade and in

particular the request instigated by Miss Storey for each member of the parade to speak a

key phrase she recalled her assailant saying in a cockney accent. Hanratty was certainly a

Londoner, but may have been the only one on the parade, as the volunteer foils were all

servicemen drawn from a military camp well outside London (Foot, 1971).

Faced with continuing concern, the Home Office revised its Code of Practice on

Identification again in 1969, a feature of which was to emphasise further the dangers of

identification following the viewing of photographs of the accused, but the new

guidelines did not entirely rule out the practice. The repeated showing of photographs

was a key feature in yet another misidentification case in which George Ince narrowly

escaped the gallows in 1973 for a murder he did not commit (Cole & Pringle, 1974). It

was against this background that in 1974, the then Home Secretary, Roy Jenkins,

appointed a leading High Court Judge, Lord Devlin, to review the law and procedure in

relation to identification and to examine the latest batch of cases of miscarriages of

justice based on honest but mistaken identifications at parades.

The Devlin Report (1976)

Lord Devlin in his report (Devlin, 1976) reviewed not only high profile cases such as that

of Ince but produced some much-needed statistics on the scope of the problem of

mistaken identity. Devlin reported that since 1945, there had been some 38 cases of

verified mistaken identity in England and Wales. This was almost certainly an

underestimate, in that this figure included only cases where a conviction had been
 9

quashed and a free pardon awarded; there would be many more cases of disputed or

doubtful identifications, but where legal action to overturn the original conviction was

not successful. In 1973-74, for instance, Devlin reported that the Court of Criminal

Appeal heard some 67 cases involving identification evidence of which nearly half (48%)

were allowed, including five involving more than one witness. The Devlin Report dealt at

length with one such case, that of a Hungarian émigré, Lazlo Virag.

The Virag Case

Virag was charged in 1969 with attempted murder, using a firearm to resist arrest and

theft from parking meters in Liverpool and Bristol. The prosecution case against him

rested solely on eight positive identifications, five from police officers and three from

members of the public who had been involved in a chase after the Bristol crimes. One of

the police officers, who had been wounded in the chase told the court ‘His face is

imprinted on my brain”. Virag offered an alibi defence, but none of his witnesses from

the émigré community turned up to support him at trial. Virag was found guilty and

sentenced to ten years imprisonment. Two years later, police arrested George Payen for

an unrelated offence. In his flat they discovered the gun which had fired the shots in the

chase and fingerprints which were matched to the Liverpool and Bristol offences. Payen

himself refused to directly admit his guilt, but confirmed that Virag was not involved. In

1974, Virag was pardoned and released and awarded compensation for wrongful

conviction. As in the Beck case, Virag and Payen bore little obvious physical resemblance

to each other, apart from being both of Middle European origin. Unlike the Beck case, the

identification parade appeared to have been properly conducted according to the

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prevailing guidelines (Shepherd et al., 1982), but all the civilian witnesses who had

identified Virag had been shown photographs of him prior to the parade.

Devlin’s recommendations

Faced with a catalogue of such errors, Devlin’s conclusions were unequivocal:

“We are satisfied that in cases which depend wholly or mainly on eye-witness evidence of

identification, there is a special risk if wrong conviction. It arises because the value of

such evidence is exceptionally difficult to assess; the witness who has sincerely convinced

himself and whose sincerity carries conviction is not infrequently mistaken. We have

found no forensically practical way of detecting this sort of mistake.” (Devlin, 1976.

p.149).

In preparing his report, Devlin had also taken evidence from psychologists as well as

lawyers. He had been sufficiently impressed with their science to add this rider:

“We recommend that further research should be encouraged. Research should be

directed to establishing ways in which the insights of psychology can be brought to bear

on the conduct of identification parades and the practice of the courts” (Devlin, 1976.

p.149).

Devlin also proposed a further overhaul of the Guidelines for the conduct of

identification parades. Some recommendations-that the instructions to witnesses should

explicitly mention the possibility that the suspect was not on the parade and that they

should only identify someone if they were confident that they were present on the parade-

were implemented promptly. However, some recommendations-the keeping of a

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photographic record of a parade and making this available to the court and giving the

Guidelines statutory status - were not implemented until 1984 and one - making the initial

description provided by the witness available to the Defence at trial-did not become law

until 1995.

There was a similar reluctance by the courts to implement Devlin’s most radical

recommendation: that identification-only cases should only be permitted in exceptional

circumstances. This was not implemented. Instead, the Court of Appeal, in a series of

judgements on appeal cases hinging on identification evidence developed the ‘Turnbull

Guidelines’ (R v Turnbull and others, 1976). The Court sought to make a distinction

between what they termed ‘good’ and ‘poor’ quality identifications. A ‘good’ quality

identifications was represented by a case where the witness had a prolonged opportunity

to view the suspect (a kidnapping where the victim spent some time with the kidnapper,

who made no effort to disguise their appearance was offered as an example), while a

‘poor’ quality identification might be based on a fleeting glimpse lasting just a few

seconds, such as a witness might gain of robbers fleeing from a bank raid. In the absence

of other corroborating evidence, appeals would be allowed in cases involving poor

quality identifications, but conviction would be upheld in cases in cases involving good

quality identifications. In all instances, judges, in their summing up should warn juries of

the dangers of misidentification and that multiple witnesses could be as mistaken as a

single witness. Judges should also systematically rehearse with juries the key

circumstances of any identification- including lighting, duration and distance of the

suspect from the witness- before sending them out to consider their verdict.
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The Turnbull judgements have guided prosecution policy on identification issues in

England and Wales right up to the present day. Devlin was disappointed in the reaction of

the judiciary to his more radical proposal to all but abolish identification-only cases and

suggested that the attempt to distinguish reliable from unreliable identifications would

not stem the tide of miscarriages of justice (Devlin, 1982). Devlin’s prophecy has been

amply fulfilled in the intervening years and psychologists have played a significant role

in interpreting and understanding such unsafe identifications.

Troubles with Turnbull

Some of the cases involving disputed identification have arisen through the failure of

judges to apply the Turnbull ruling appropriately in their summing up. One such was the

case of John Thomas O’Neill in 1986. A man with Manchunian accent robbed a shop at

gunpoint and O’Neill was put on a parade at which he was identified by one of four

witnesses who inspected the parade. There was no other evidence other than the accent

to link O’Neill to the crime. O’Neill’s conviction was reversed on appeal, the judges

noting the paucity of other evidence supporting his conviction and the failure of the judge

to give due weight to the Turnbull cautions in his summing up. In 1991, Steven Davis

was convicted of armed robbery, the principal evidence against him again being that of

identification. A heavily disguised gunman had robbed a jeweller who later selected

Davis from a parade, although two other witnesses who had seen the robber leaving the

shop without disguise failed to select him. Indeed, one of these witnesses said that the

person that they saw was not on the parade. The judge in his closing address to the jury
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failed to give the appropriate Turnbull warning until prompted by the Defence. The judge

then quickly read aloud the relevant passage from a standard legal text before adding that

he expected the jury as good citizens to exercise their common sense and bring in the

correct verdict. The conviction was subsequently reversed on appeal because of the

Judge’s misdirection (Davies, 1996). In both these cases, the first author wrote reports for

the Defence at Appeal. As is the practice in the United Kingdom, identification matters

are regarded as knowledge within the province of the jury and the possibility of a

psychologist giving expert testimony in court is generally precluded (Clifford, in press).

However, such reports are seen and read by judges and it is evident from written verdicts

at Appeal that points regarding psychological aspects of identification had been

considered in reaching decisions to reverse convictions, albeit the decisions themselves

were based solely on points of law.

‘Good’ versus ‘poor’ quality identifications

The examples offered by the Turnbull judgement of good and poor quality identifications

left ample latitude between the two extremes cited for individual prosecutors and judges

to exercise their idiosyncratic judgement. In 1981, John McGranaghan was given two life

terms for a series of three prolonged and aggravated sexual assaults which had taken

place at night in the victims’ own bedrooms. No forensic or other evidence linked

McGranaghan to the crimes, but all three victims had picked him out at identification

parades with varying degrees of certainty. The parades had taken place between eight

months and two and a half years after the assault and all the victims admitted only having

had the briefest of glimpses of the offender who had gone to some lengths to avoid being
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seen by his victims. The judge’s summing up was fully in accord with the Turnbull

requirements and emphasised the fleeting nature of the identifications, but the jury still

convicted. Some 10 years later, following a sustained campaign to which again, the first

author contributed an analysis of the identification evidence, the conviction was officially

investigated by a senior police officer who almost immediately uncovered forensic

evidence which exonerated MacGranaghan, who was released and officially compensated

for wrongful imprisonment (Davies, 1996). MacGranaghan’s conviction on the basis of

poor quality identification in Turnbull terms appears not to have been exceptional. A

review of a large sample of identification parades by Slater (1994) found that % involved

witnesses who claimed to have seen the suspect for 1 minute or less. Research with

actual witnesses shows that rates of positive identification are significantly affected by

exposure time (Valentine, Pickering & Darling, 2003), but the Turnbull criteria do not

appear to be applied with any consistency.

What is corroboration? The case of Barry George

With the possible exception of the O’Neill case, all these cases might claim to have

‘corroborative evidence’ associated with the identification as required by Turnbull, but

the corroboration was frequently very weak and without the identification evidence could

not have been regarded as strong evidence against the accused. For instance, in

MacGranaghan’s case, it amounted to his car being seen in the general area at the time of

one of the assaults; in Davis’s case, it was an alleged slip of the tongue which was

interpreted as incriminating.
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The same concern over strength of ‘corroborating’ evidence was raised in relation to the

conviction of Barry George for the murder of the television personality Jill Dando in

1999. George, unemployed and learning disabled, lived in the vicinity of Ms Dando and

was a familiar figure in the neighbourhood. Her death bore all the hallmarks of an

professional execution and police announced they were searching for such a killer. When

a composite was issued by the police in their increasingly desperate search for the

murderer, a number of names were suggested by members of the public including Barry

George. However, the police considered him a low priority suspect and was eventually

arrested and put on a parade a month later. He was seen, either in a conventional parade

or in a video parade (see below) by 16 different witnesses between 13 and 19 months

after the murder. Only one witness (at a video parade, held after 17 months), positively

identified George as the man she had seen for six seconds (her own estimate) in the street

some hours before the murder. This witness was given a lift home by the police together

with two female witnesses who had failed to make an identification. In conversation, she

mentioned that she had selected the suspect and had been asked to make a statement by

the police. Subsequently, both women made retrospective identifications of George.

However, the only two witnesses who had actually seen the murderer leave Ms Dando’s

house failed to identify George and another witness, a postman who had subsequently

met George, stated that he was uncertain whether he was the same man he had seen on

the day in question (Valentine, in press).

George was interviewed by the police and disclaimed all knowledge of, and interest in,

Ms Dando (though newspaper cuttings found at his flat suggested otherwise). There was
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some evidence that he had sought to create a false alibi for the time of the shooting. In

addition, police recovered a coat from his flat, in the inside pocket of which was

discovered a microscopic particle of firearms discharge residue which matched that

recovered from the scene of the crime. The prosecution relied on this forensic evidence,

evidence of his dishonesty and the identifications, at his trial in 2001. However, the

identification evidence was central to their case (Valentine, in press). Controversially, the

prosecution were permitted to include the retrospective identifications of the two

witnesses in addition to the one positive identification. George was convicted by a

majority verdict (Lomax, 2005). Two appeals followed and at the second in 2007, which

focussed on the evidential weight to be attached to the firearms residue, George’s appeal

was allowed and there will be a fresh trial, where, no doubt, the issues around the

identification. evidence will be once again be aired.

Identification post-Devlin: From Live to Video Parade

The identification procedures used in the Barry George case featured both live and video

parades. The use of video as a substitute for a live parade had first been permitted in the

revision of the Police and Criminal Evidence Act (PACE) in 1991 (Home Office, 1991),

but it was not until 2002 that their use became commonplace among British police forces.

By the time PACE was revised again in 2004 (Home Office, 2004), video parades had

become the preferred method of establishing identification in England and Wales. Today

live parades are virtually extinct in the United Kingdom (Valentine, in press). From the

perspective of the Home Office, video offered significant savings in terms of costs and

personnel. Between 1990 and 1992, the number of live parades conducted in England and
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Wales rose almost three times to 6,853 per annum (Slater, 1994); almost half of all live

parades had to be cancelled at short notice due to the absence of suitable foils or the

suspect not attending (Pike, Brace & Kynan, 2002). For the police, video parades had the

advantage of being highly portable and replicable: they could be taken to a victim’s

bedside or shown to witnesses in the absence of an accused (though, if possible, in the

presence of their legal representative). From the perspective of the victim, a video parade

could be assembled much more rapidly and could provide a less threatening test for the

witness than being physically in the presence of the accused (Valentine, in press). But

how fair are they to the accused?

The procedure used in video parades involves the accused first making a 15 s video clip.

The accused is videoed in a head and shoulders shot, first facing ahead and then turning

their head to give a left profile and then a right.. The video is then matched to eight foils

from a database of approximately 14, 000 video clips which are broadly representative in

terms of gender, ethnic background and physiognomy. The final selection of foils is

normally done in conjunction with the accused and/or their legal representative.

Distinctive facial deformities and scars can be added digitally to all photographs to

increase comparability. Witnesses are shown all nine foils (the accused may select their

position in the sequence) consecutively once through at their own pace and then again. It

is on this second viewing that witnesses need to indicate whether the accused is present

and if so, their position in the array. Thus, the video parade requires witnesses to make a

decision on each face shown, rather than a judgement from an array, avoiding the

problem of identification through elimination first highlighted by the 1929 Royal

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Commission and more recently by Lindsay and Wells (1995) in their discussion of the

relative advantages of sequential compared to simultaneous line-ups.

Psychologists were involved in the evaluation of the system at the pilot stage. Samples of

video parades and photographs of conventional parades derived from actual criminal

investigations were compared using a ‘mock witness’ paradigm: volunteers were given

the description of the suspect furnished by the real witness and asked if they could pick

out the accused purely on the basis of fit to description. Volunteers were able to select

25% of the suspects from the live parades purely on the description but only 15% from

the video parades, the latter result being no higher than would be expected by chance,

suggesting that video parades were fairer than traditional parades (Valentine and Heaton,

1999). Similar results suggesting that video parades are fairer to the accused have been

obtained when parades featuring exclusively suspects from the ethnic minorities have

been studied (Valentine, Harris, Colom, Piera & Darling, 2003). In addition, video

parades have the advantage that they can be run as a double-blind: the officer

administering the parade can be ignorant as to which clip features the accused, avoiding

any unconscious or conscious bias, though such a procedure is not yet mandatory under

the 2005 PACE requirements.

There are some inevitable drawbacks with video parades. Witnesses viewing head and

shoulders shots are given few clues as to the height or build of an accused. In the Dando

case, the two witnesses who made retrospective identifications from video later claimed

they would have readily identified George from his build and general appearance. There
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is also a constant need to update the library of foils in order to keep pace with vagaries of

fashion. However, the rapid disappearance of the traditional parade is a tribute to the

many advantages to all parties of the new system.

CCTV: New Opportunities, Old Problems

A new dimension to the identification debate has been the growth in the use of Closed-

Circuit Television (CCTV) as a method of surveillance and control. Britain can

legitimately claim to be the world capital of CCTV, with an estimated 4.25 million

cameras installed across the country (Norris, McCahill & Woods, 2004). Most city

centres are covered by networks of cameras which feed into a central control room where

operators can detect street crime and monitor suspects. Links with the police enable

operators to summon officers to make arrests or deal with incidents. Public transport,

motorways and shopping arcades are routinely fitted with cameras which record in real

time. The movements of the offenders through cities in major crimes can be traced

retrospectively through the examination of CCTV recordings. Such techniques greatly

facilitated tracking those responsible for the murder of James Bulger in February 1993

and the London bus and tube bombings of July 2005 and the retrieved images have

achieved iconic status in the media (McCahill, 2003).

However, it is in the use of CCTV as a means of identifying suspects that difficulties

arise. When identification from surveillance footage was first used, it was not appreciated

by senior politicians in the Home Office that exactly the same issues of human frailty in

identifying unfamiliar persons arose in this new technological domain as applied in

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traditional identification procedures (Davies & Thasen, 2000). It took the tragic death of

Jean Charles De Menezes to illustrate the limitations as well as the advantages of video

as an identification aid.

Jean Charles De Menezes

Following the second and unsuccessful attempt to bomb the London bus and tube

network in July 2005, Metropolitan Police officers kept watch on a block of flats in

London where it was believed a suspect, Hussain Osman, was living. At around 9.30 in

the morning, an officer saw a man emerge from the house that he thought resembled a

still image of Osman, taken from CCTV footage. The officer believed it might be the

suspect and contacted his Operational Commander who ordered that the man should be

followed. The suspect’s erratic progress, going first to one Underground Station and then

another, getting off a bus and then back on again, further increased suspicion that the man

being followed was indeed Osman. When the suspect entered Stockwell Underground

Station, the surveillance team were ordered by their Operational Commander to prevent

him from boarding a train. At this point, a second armed surveillance team arrived post-

haste at the station and pursued the suspect down onto the platform where he had just

boarded a train. The officers too then jumped into the carriage and confronted the

innocent suspect, Jean Charles De Menezes, before shooting him dead in circumstances

which are still unclear (“What happened,” 2007).

As so often in cases of mistaken identity, the physical resemblance between Osman and

De Menezes was slight: De Menzes was Brazilian and Osman was of Ethiopian origin
 21

and their facial features and build were very different. At a subsequent trial alleging a

failure by the Metropolitan Police to properly protect Mr de Menezes, the Police

Authority produced a striking composite which directly contrasted the two men’s half-

faces in a bid to suggest a high degree of resemblance. However, a Defense expert

reported he had been unable to replicate this particular effect and thought it could only

have been achieved by digitally resizing and repositioning facial features ( “Menezes

picture ‘was manipulated’”, 2007). The Metropolitan Police were found guilty of failing

to protect the health and safety of Mr De Menezes and fined £175,000 plus costs. It was

earlier reported that the Police had offered the De Menezes family substantial

compensation for the death of their son (“Tragic trail”, 2005).

Even prior to the De Menezes tragedy, there was considerable psychological research

available to demonstrate the surprisingly limited ability of people to identify strangers

from video footage. Recognition of strangers from still photographs is surprising poor

and vulnerable to misleading contextual cueing (Thomson, 1988). Just how poor

identification of strangers can be is underlined by the study of Bruce, Henderson,

Greenwood, Hancock, Burton & Miller (1999), who reported a 30% error rate when

participants were required to match a high quality video still of a male face to one of

array of nine high quality still photographs. This average performance concealed

widespread variations and individual faces generated up to 80% error rates. Similar rates

of error were demonstrated when matching was completed against a moving video of the

target (Davies & Thasen, 2000). These studies used high-quality video images; when

poorer images of the kind typically derived from working CCTV systems were employed,
 22

considerably higher overall error rates were reported (Henderson, Bruce & Burton, 2001).

When participants were required to match a single image to a target in a task reminiscent

of that of the officer in the De Menezes’ case, 45% of participants believed two images of

the same person were different people (Henderson et al., 2001). An interesting paradox is

that when the observer is familiar with the appearance of the target, accuracy rates are

very high even with degraded recordings: 91% compared to just 55% when there is no

prior familiarity (Burton, Wilson, Cowan & Bruce, 1999).

In ‘real world’ settings, there will be situations where the CCTV controller will be

familiar with the appearance of a suspect and the research by Burton et al suggests high

accuracy may be achieved, but in most instances, controllers will not know the suspect

(Valentine, 2008). Can technology, in the form of automatic facial recognition systems

solve the problem? Research suggests that such automatic systems can work well under

laboratory conditions, but performance with actual images taken from standard CCTV

footage is very much poorer (Davis, 2006). For the foreseeable future, most matches will

be achieved by the human operator comparing by eye a stored image with a still

photograph of the suspect, with all the attendant risks of false positive and false negative

errors which this process entails.

Conclusions

This brief review of over a century of identification practice shows that despite

refinements which have removed most of the more obvious shortcomings of police

procedure, errors still occur. It seems that Devlin’s (1976) damning indictment of “the
 23

special risks of wrong conviction” following identification still holds true. It would be

good to report that psychologists had discovered some clear correlate of witness

performance which enabled reliable identifications to be discriminated from less reliable

choices. However, attempts so far in laboratory experiments to use such factors as levels

of confidence or speed of response as determinants have produced confused and

sometimes contradictory findings (Weber, Brewer, Wells and Semmuler, 2004).

Psychologists have examined data sets derived from police sources to try to establish

what factors in a crime later influence the performance of witnesses on identification

parades. Valentine, Pickering and Darling (2003) examined the choices made by 640

witnesses who attended 314 traditional parades held in London in 2000. The authors

examined what factors influenced the likelihood of a witness choosing the suspect.

Among the factors predicting witnesses who selected the suspect were seeing the suspect

for more than a minute; being less than 30 years of age, and making a rapid decision.

However, contrary to established experimental research results, performance was not

significantly effected by whether the offender had brandished a weapon (cf Maas &

Kohnken, 1989); was of a different race (cf Meissner & Brigham 2001 ), and

performance did not decline exponentially over time (cf Shepherd 1983). This underlines

the fact that, contrary to the laboratory research ethos with its emphasis upon the

manipulation of small numbers of variables, real-world eyewitness performance is

determined multi-factorially, with one variable sometimes masking another: for instance,

the presence of a weapon may be associated with closer physical proximity between

witness and offender than crimes where no weapon is involved.

 24

Valentine et al (1983) report that overall, some 41% of witnesses selected the suspect,

21% selected a foil and the remaining 39% made no choice. These figures are very much

in line with earlier surveys in England (Slater 1994; Wright & McDaid, 1996), but in the

absence of ground truth (confessions; damning forensic evidence) it is difficult to know

how many suspects were in fact offenders. On the basis of their figures, Valentine et al

estimate that between two and three percent of suspect selections are unreliable, which

even based on Slater’s figures for the total number of parades from 1994, gives a total of

over 200 false identifications per annum. Given that the number of parades will have

increased significantly since 1994, especially with the availability of video parades, this

suggests that the mistakes described in this paper may represent just the most visible

aspect of a much larger problem.

What can be done to reduce reliance on parades in securing identification? As we have

noted, in the absence of a reliable automated recognition system, the advent of CCTV

will simply replicate many of the problems of more traditional identification procedures.

However, the emergence of DNA profiling has revolutionised forensic identification and

the system has evolved to establish reliable data from smaller and smaller samples, such

that even the offender’s touch may be sufficient to leave identifiable residue ( Nardo,

2007). Indeed the arrival of DNA identification has enabled some miscarriages of justice

based on corporeal identification to be rectified. In the United States, of the first 200

wrongful convictions overturned by the Innocence Project (n.d.), more than 75%

involved cases where the principal evidence against the accused consisted of corporeal
 25

identification, but the DNA evidence pointed to another person being responsible for the

crime. It would be interesting to know whether the corresponding proportion in England

and Wales is any less, given the progressive refinement and national application of

identification guidelines.

When Lord Devlin wrote his report in 1976, corporeal identification remained the norm

and the recent developments in CCTV and DNA profiling could not have been foreseen.

Perhaps now is the time to return to his original proposals and consider using

identification parades as primarily an investigative rather than evidential procedure. In the

words of the 1929 Royal Commission, parades should be seen as a “rough and ready

method” for establishing a case against a suspect rather than final and convincing proof

of their guilt: the beginnings of an investigation rather than, as so often today, the

conclusion. Many of the victims of identity laws over the years would surely support this

view.

Postscript

On January 19, 2007, Sir Stephen Richards, the Lord Justice of Appeal, granted the

application which permitted the Metropolitan Police to be prosecuted under Health and

Safety legislation for the mistaken shooting of Jean Charles De Menezes. Two days later,

Sir Stephen was charged with two counts of indecent exposure on a suburban railway

train. Sir Stephen had been selected by the complainant from an identification parade. At

his trial, Sir Stephen insisted he was an unlikely suspect: he always travelled on the same

train, in the same coach, and was well-known to many of his fellow-passengers. He even
 26

suffered the indignity of producing in open court his black Calvin Klein briefs which he

patiently explained, physically prevented him from exposing himself in the manner

described by the woman passenger. After hearing from the accused and his wife, the case

was stopped and Sir Stephen acquitted, yet another victim, it would seem, of mistaken

identity (Rozenberg, 2007). ‘History repeats itself, the first time as tragedy and the

second time as farce’ (attributed to Karl Marx).

 27

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Author Note

This article is based on a paper read at the 30th International Conference of the Academy

of Law and Mental Health in Padua, Italy, June, 2007. The review of pre-Devlin

procedures is derived from a chapter written by the first author for Shepherd, Ellis and

Davies (1982) which also contains further detail on the cases cited. Address for

correspondence, Professor G. M. Davies, School of Psychology, University of Leicester,

Wellcome Building, Lancaster Road, Leicester, LE1 9RH, United Kingdom; e-mail:

gmd@le.ac.uk