235Identification by means of photographs

235 Identification by means of photographs (1) If a suspect is in custody in respect of an offence or is otherwise available to take part in an identification parade, a police officer investigating the offence shall not show photographs, or composite pictures or pictures of a similar kind, to a witness for the purpose of establishing, or obtaining evidence of, the identity of the suspect (a) the suspect has refused to take part in an identification parade; or (b) the holding of an identification parade would be— (i) unfair to the suspect; or (ii) unreasonable in the circumstances. (2) If a police officer investigating an offence shows photographs or pictures to a witness for the purpose of establishing, or obtaining evidence of, the identity of a suspect, whether or not the suspect is in custody, the following rules apply: (a) the police officer shall show to the witness photographs or pictures of at least 9 different persons; (b) each photograph or picture of a person who is not the suspect shall be of a person who— (i) resembles the suspect in age and general appearance; and (ii) does not have features visible in the photograph or picture that are markedly different from those of the suspect as described by the witness before viewing the photographs or pictures; (c) the police officer shall not, in doing so, act unfairly towards the suspect or suggest to the witness that a particular photograph or picture is the photograph or picture of the suspect or of a person who is being sought by the police in respect of an offence; (d) if practicable, the photograph or picture of the suspect shall have been taken or made after he or she was arrested or was considered as a suspect; (e) the witness shall be told that a photograph or picture of the suspect may not be amongst those being seen by the witness; (f) the police officer shall keep, or cause to be kept, a record identifying each photograph or picture that is shown to the witness; (g) the police officer shall notify the suspect or his or her legal representative in writing that a copy of the record is available for the suspect; (h) the police officer shall retain the photographs or pictures shown, and shall allow the suspect or his or her legal representative, on application, an opportunity to inspect the photographs or pictures. (a) a photograph or picture of a person who is suspected in relation to the commission of an offence is shown to a witness; and (b) the photograph was taken or the picture made after the suspect was arrested or was considered to be a suspect; and (c) proceedings in relation to the offence referred to in paragraph (a) or another offence arising out of the same course of conduct for which the photograph was taken or picture made are brought against the suspect before a jury; and (d) the photograph or picture is admitted into evidence; the jury shall be informed that the photograph was taken or the picture made after the suspect was arrested or was considered as a suspect. (4) If a suspect is in custody in respect of an offence, a police officer investigating the offence shall not show a composite picture or a picture of a similar kind to a witness for the purpose of assisting the witness to describe the features of the suspect. (5) If, after a police officer investigating an offence has shown to a witness a composite picture or a picture of a similar kind for the purpose referred to in subsection (4)— (a) a suspect comes into custody in respect of the offence; and (b) an identification parade is to be held in relation to the suspect; the police officer in charge of the investigation of the offence may, unless doing so would be unfair to the suspect or be unreasonable in the circumstances, request the witness to attend the identification parade and make the necessary arrangements for the witness to attend. (6) If, after the witness has been shown a composite picture or a picture of a similar kind for the purpose referred to in subsection (4), a person is charged with the offence, the police officer in charge of investigating the offence shall, on application by that person or his or her legal representative, provide him or her with particulars of any such picture shown to the witness and the comments (if any) of the witness about the picture. (7) If a suspect is in custody in respect of an offence and a police officer investigating the offence wishes to investigate the possibility that a person other than the suspect committed the offence, subsection (4) does not prevent a police officer from taking action referred to in that subsection for the purpose of assisting a witness to describe the features of a person other than the suspect.