The Facts

The complainant's evidence was that Forbes had tried to rob him of £10 which he had just withdrawn from a cash machine. The man had started by begging but had then become aggressive and had threatened to "cut him up".

The complainant managed to run away. He called the police who arrived some minutes later. The complainant got into their car and they toured the area to look for the suspect. The complainant pointed out Forbes as the man who he said had robbed him. When Forbes was arrested he protested his innocence.

The Law

The second ground of appeal (There were two, only the second is considered here) raised the question of whether the identification evidence should have been admitted in view of the fact that an identification parade had not been held, in breach of Code D:2.3.

Counsel for the Registrar of Criminal Appeals submitted that the recorder was in error in holding that there had in fact been no breach of Code D:2.3 because she was satisfied "for the purpose of the definition in R v Popat [1998] Cr. App R 208; (1998) The Times, April 10 and indeed for the definition as required by the Codes, that a full and complete identification had been made at the scene and in those circumstances it was not necessary for there to be an identification parade...".

In order to understand the recorder's reasoning it was necessary to consider Popat in which Lord Justice Hobhouse had said (at p215): "In our judgment the second section of Code D is not be construed as if it expressly provided for all possible situations ... The mandatory obligation in the first sentence of paragraph 2.3 relates to a situation where a suspect is being produced by the police to a witness not by the witness to the police."

And later (at p223): "... where ... there has been an unequivocal identification of the relevant person by the relevant witness properly carried out in accordance with the provisions of paragraph 2.17, there can, in our judgment, be no question but that the requirements of the Code have been complied with and that there is no obligation thereafter under the first sentence of paragraph 2.3 to hold an identification parade for that witness again to identify the same man."

Their Lordships apprehended that the application of the decision in Popat might occasion some difficulties for trial judges. The court held that paragraph D:2.3 of the Code had no application in a case where the relevant witness "has already made an actual and complete identification" and "what is an actual and complete prior identification of the relevant individual by the relevant witness will depend upon the facts of each individual case".

On that approach, the question whether or not the Code was violated depended, not on the question whether a parade had been held or, if not held, was excused by paragraphs 2.4 etc, but on the judge's assessment of the quality of the other identification evidence.

It was very difficult to see how there could be such shades of grey in the answer to what ought to be a relatively hard-edged issue, namely whether the statutory Code provision, on its face quite unambiguous, had been fulfilled or not.

The real relevance of the quality of other identification evidence went to the question whether that evidence should be excluded under section 78 of the 1984 Act. That was a question which might arise, depending on the facts of the case, whether or not there had been an identification parade.

Their Lordships then turned to R v Brown [1991] Crim LR 368 where the victim of an attempted robbery also made a street identification of Forbes as her attacker not many minutes after the attack took place. No identification parade was held at which the complainant attended.

The trial judge held that there was no breach of the Code because it was not practicable to hold one, the street identification having made such a subsequent identification otiose.

The Court of Appeal, presided over by Lord Justice Farquharson, held it to

be clear that the requirement of the Code was mandatory and that to have convened a parade after the street identification might not necessarily have been otiose.

That vexed area of the law had been revisited in R v Bell [1998] Crim LR 879 where the court appeared to be seeking to reconcile Popat and Brown.

Their Lordships, however, did not think that the reasoning in the two cases could stand together. Accordingly, it was open to them to take a view as to which should be followed and they preferred the reasoning in Brown.

The Code was plainly mandatory and D:2.3 only exempted the duty to hold a parade in those circumstances specified by the express exceptions to which it referred. If there might be other cases where a parade was of no, or very limited utility, that was a circumstance which the Code did not recognise.

In Popat the court sought to attribute an interpretation to D:2.3 which would accommodate that circumstance. In their Lordships' judgment that amounted to re-writing the Code.

Two Separate Questions.

With great respect they considered that the reasoning in Popat tended to conflate two questions which were, and had to be kept separate.

One was: had there been a breach of D:2.3? The other was: should the other identification evidence be excluded under section 78?

The primary task of the trial judge, in a case where there had been no parade and it was submitted to him that other identification evidence, such as here, in the street, should for that or other reasons be excluded, was to address himself to the second question, arising under section 78.

The failure to hold a parade might, of course, bear closely on the fairness or otherwise of admitting the other evidence and might sometimes be determinative of it.

It followed that in the present case that there was a breach of D:2.3. The question for the recorder, therefore, was whether, absent a parade, it was fair to admit the other identification evidence.

Their Lordships entertained no doubt but that despite the breach of D:2.3 the street identification was rightly admitted. The jury's verdict was perfectly safe and the appeal against conviction would be dismissed

The Decision

Code D:2.3 of the Police and Criminal Evidence Act 1984 (s.66) Codes of Practice was mandatory, even where the holding of an identification parade was of no, or very limited utility. The only exemptions from the duty to hold an identification parade were in those circumstances specified by the express exceptions in the Code.

The Court of Appeal, so held dismissing an appeal by Forbes against his conviction in September 1998 at Crown Court of attempted robbery, for which he was sentenced to three years imprisonment.

Comment

Two recent cases need to be compared, Popat and D v DPP.

R v Popat is reported fully in Police Journal Volume LXXI, number 3, July/September 1998, page, 275, also an excellent article, the "Informal identification and the Perils of Oscar" is published at 163 JPN 24 (Number 2 January 1999).

Popat had decided that where a suspect had been properly and adequately identified by a complainant the identification was complete and there was no requirement for the police to hold an identity parade. There was therefore no consequent breach of paragraph 2.3 of section D of the Police and Criminal Evidence Act 1984 (s.66) Codes of Practice.

The Court of Appeal so held dismissing the appeal of Popat against his conviction on July 21, 1997 at the Central Criminal Court for one count of attempted rape and intimidating a witness, two counts of indecent assault.

D v DPP, (1998) The Times, 7 August QBD, "Identification Parade was Not Necessary".

Where a witness had informally identified suspects by reference to clothing and approximate ages and where the suspect requested but was not given an opportunity to participate in an identification parade, in breach of paragraph 2.3 of Code D of the Police and Criminal Evidence Act 1984 (s.66) Codes of Practice and the informal identification evidence was admitted, such a breach did not have an adverse effect on the fairness of proceedings.

The Queen's Bench Divisional Court so held in dismissing an appeal by way of case stated against the conviction by Youth Court on March 19, 1998 of D of theft contrary to sections 1 and 7 of the Theft Act 1968.

As there had not been an actual identification by the witness (he had only described the clothing and approximate ages of the appellant and his co accused) and an identification parade could not have served a useful purpose (clothing could be changed and those on the parade would have been of the same age as the appellant the justices had been correct to admit the evidence.

In this case under discussion; Forbes the Court of Appeal, have now said that Popat was wrong; or at the very least it would cause difficulties for courts and; "amounted to re-writing the Code".

The Code was plainly mandatory. Paragraph 2.3 only exempted the duty to hold a parade in certain EXPRESS cases. "If there might be other cases where a parade was of none, or very limited benefit, that was a circumstance which the Code did not recognise. In Popat the court sought to attribute an interpretation to D2.3 which would accommodate that circumstance ... that amounted to re-writing the Code."

The real relevance of the quality of other (i.e., non-identification parade) evidence of identification went to the test of exclusion under s.78 of PACE. "The failure to hold a parade might, of course, bear closely on the fairness or otherwise of admitting the other evidence and might sometimes be determinative of it." In the present case, however, despite the breach of D2.3, the street identification evidence had been rightly admitted and the guilty verdict was not unsafe.

The moral must be - if it is at all possible to hold a parade, do so.

SEE NOW POPAT No 2 CASE below & Ryan

(1999) The Times, 7 September Court of Appeal

Paragraph 2.3 of section D of the Police and Criminal Evidence Act 1984 (s.66) Codes of Practice did not make obligatory to hold an identity parade.

The Court of Appeal, so held in a reserved judgment allowing, for other reasons, an appeal referred to the court by the Criminal Cases Review Commission under section 9 of the Criminal Appeal Act 1995, of Popat against his conviction on July 21, 1997 at the Central Criminal Court for one count of attempted rape and intimidating a witness, two counts of indecent assault. A re-trial was ordered.

LORD JUSTICE BELDAM said that the Commission in referring the appeal had incorrectly interpreted the decision in R v Forbes (The Times May 5, 1999) as overruling the judgment of Lord Justice Hobhouse in R v Popat (The Times April 10, 1998; [1998] 2 Cr App R 208).

His Lordship said that Lord Justice Hobhouse had carried out considerable research in case law dealing with Code D and had given it a sensible construction in that his interpretation as to whether an identity parade was obligatory or not was only one factor to be taken into account and not determinate.

His judgment gave a valuable general guidance, which was to be followed unless overturned by the House of Lords, and the decision in Forbes was misguided and unfortunate.

Regina v Ryan

(1999) The Times, October 13,