Q&As

Where an investigator wishes to carry out an identification procedure under PACE Code D, is the suspect ‘unavailable’ if they have been informed (by phone or letter) that the investigator wants to do an ID procedure and refuses to consent or comply or are they only considered ‘unavailable’ when they have formally been served with papers by an inspector and then decline to consent?

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Produced in partnership with Philip Rule
Published on LexisPSL on 10/01/2020

The following Corporate Crime Q&A produced in partnership with Philip Rule provides comprehensive and up to date legal information covering:

  • Where an investigator wishes to carry out an identification procedure under PACE Code D, is the suspect ‘unavailable’ if they have been informed (by phone or letter) that the investigator wants to do an ID procedure and refuses to consent or comply or are they only considered ‘unavailable’ when they have formally been served with papers by an inspector and then decline to consent?
  • Availability
  • Formality as to requesting consent

Where an investigator wishes to carry out an identification procedure under PACE Code D, is the suspect ‘unavailable’ if they have been informed (by phone or letter) that the investigator wants to do an ID procedure and refuses to consent or comply or are they only considered ‘unavailable’ when they have formally been served with papers by an inspector and then decline to consent?

This response looks at the situation when a known suspect is considered ‘unavailable’ for the purposes of police identification procedures, and what formality is required in the nature of a request made to consent to identification procedures.

Availability

An investigating officer who knows the identity of a suspect may intend to carry out formal identification procedures with a view to relying upon any positive identification by a witness of the suspect. The procedures to be followed are set out in PACE Code D (referring to the Police and Criminal Evidence Act 1984 (PACE 1984), by section 66 of which the Code is issued) (23 February 2017). This provides safeguards against mistaken identifications.

If the suspect is ‘available’ the process is essentially consensual and involves participation by the person or their legal representative, and the ability to make representations as to the form of procedure to be used.

Being ‘available’ is defined by the Code to mean ‘…that the suspect is immediately available, or will be

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