Identification parades are mandatory (compulsory )

Regina v Forbes (Anthony Leroy)

(2000) The Times, December 5, House of Lords

Before proceeding with the Lords decision it is as well to remind ourselves of the Court of Appeal findings reported at, R v Forbes (1999) The Times, 5 May.

The Court of Appeal

The Facts

The complainant, who had just obtained cash from a cashpoint machine, was confronted by an assailant who attempted to rob him. The man had started by begging but had then become aggressive and had threatened to "cut him up".

The complainant escaped to a waiting vehicle which drove off; he saw Forbes in the street. As the car passed, the complainant made eye contact with Forbes who spat towards the vehicle. The complainant immediately called the police who drove him around the streets in search of the assailant. In due course he identified Forbes as his assailant.

Forbes denied the accusation and asked repeatedly but unsuccessfully for an identification parade to be held.

The Law

The second ground of appeal 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 10and 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 the appellant 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 at Crown Court of attempted robbery, for which he was sentenced to three years imprisonment.

The House of Lords Decision

LORD BINGHAM, giving the opinion of the committee, said that the present appeal was concerned only with eyewitness identification evidence which a suspect or defendant disputed. It had long been recognised that such evidence even when wholly honest might lead to the conviction of the innocent. Among other detailed objectives, the 1984 Act sought to recommend procedures which would provide for the effective investigation and prosecution of crime while at the same time, importantly, safeguarding the legitimate rights and interests of those suspected and accused.

Thus section 66 of 1984 Act provided for the issue by the Home Secretary of Codes of Practice to govern the exercise by police officers of statutory powers relating to, inter alia, the detention, treatment, questioning and identification of persons by police officers.

Being directed by the secretary of state to the police the codes could not govern the admissibility at trial of any evidence obtained in breach of the codes but section 78 conferred discretion on the court to refuse to allow prosecution evidence to be given if it appeared to the court that having regard to all the circumstances, including those in which the evidence had been obtained, its admission would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it. His Lordship referred to earlier versions of Code D, which were replaced in 1995 with the version applicable to the present case. From the terms of paragraph 2.3 and the paragraphs which provided limited exceptions to the first sentence of paragraph 2.3, it was plain that if an identification parade was practicable it was the preferred mode of identification.

The operation of the Code D hinged on the distinction between cases where the suspect was known and cases where the identity of the suspect was not known. That distinction might be directed to different cases or to different stages of the same case. The test was whether there was sufficient information known to the police to justify the arrest of a particular person for involvement in a suspected offence.

There would not be such information unless the police had some apparently reliable evidence implicating him. In cases where the suspect’s identity was known to the police were in some circumstances permissible, but the code was clear that an identification parade was the preferred method.

While the second sentence of paragraph 2.3 conferred a discretion on the investigating officer, the first sentence imposed a duty to which the exceptions were of very limited scope. Thus, if the police had sufficient information to justify the arrest of a particular person for suspected involvement in an offence, and he disputed that he had been correctly identified, and the identification depended, even in part, on eyewitness identification evidence, and the suspect consented, Code D required that an identification parade be held unless one of the exceptions applied. At the identification parade the witness would have the opportunity, subject to the strict regime governing the conduct of such parades, to identify the suspect.

If he failed to do so, that would ordinarily strengthen the suspect’s position. If the witness did identify him at the parade, that was likely to weaken his position, unless the witness was identifying not the culprit who committed the crime but the person identified on an earlier occasion.

If the suspect apprehended that a parade might strengthen the prosecution case he would doubtless be advised to withhold his consent to the holding of it. His Lordship referred to the authorities and, in particular, to Popat in which the Court of Appeal had concluded that where the relevant witness had already made an actual and complete identification of a suspect who disputed the identification there was no requirement under paragraph 2.3 for a parade to be held and that what constituted such a prior identification would depend on the facts of each case.

On the application of Code D 2.3 in the present case their Lordships concluded that there was a breach of the Code for the following reasons:

1 Code D was intended to be an intensely practical document, giving police officers clear instructions on the approach that they should follow in specified circumstances. It was not old-fashioned literalism but sound interpretation to read the code as meaning what it said.

2 Paragraph 2.3 was revised in 1995 to provide that an identification parade should be held, if the suspect consented and unless the exceptions applied, whenever a suspect disputed an identification. That imposed a mandatory obligation on the police. There was no warrant for reading additional conditions into that simple text.

First, it replaced an apparently hard-edged mandatory obligation by an obviously difficult judgmental decision: such decisions were bound to lead to challenges in the courts and resulting appeals.

Second, it entrusted that decision to a police officer whose primary concern would, perfectly properly, be to promote the investigation and prosecution of crime rather than to protect the interests of the suspect. An identification parade, if held, might strengthen the prosecution but might also protect the suspect against the risk of mistaken identification and a suspect should not save in circumstances which were specified or exceptional be denied his prima facie right to such protection on the decision of a police officer.

Third, that approach overlooked the important fact that grave miscarriages of justice had in the past resulted from identifications which were fully satisfactory, actual and complete and unequivocal but proved to be wholly wrong. It was against such identifications, as well as against those that were uncertain and equivocal, that paragraph 2.3 was intended to offer protection to the suspect.

Their Lordships agreed with the Court of Appeal in Popat that paragraph 2.3 should not be construed to cover all possible situations, such as those in which a parade would be futile: but save in such and other exceptional circumstances the effect of paragraph 2.3 was clear. If :-

With regard to the effect of the breach, it was readily and rightly accepted for the defendant that even if the failure to hold an identification parade was a breach of Code D: 2.3 it did not necessarily follow that the identification evidence given by the complainant should have been excluded. That would depend on an exercise of judgment under section 78 of the 1984 Act, taking count of all the circumstances of the case. The defendant had argued that he had been denied a fair trial and his conviction should be considered unsafe; that since the recorder had found no breach she had not exercised her judgment whether the complainant’s street identification evidence should be admitted and the defendant’s counsel had therefore been denied the opportunity to cross- examine the police investigating officer on his decision not to hold a parade and that the jury had not been directed on the breach of the code and the possibility of prejudice to the defence. Reference was made to the right to a fair trial guaranteed by article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

That was an absolute right, but as was held in Stott v Brown (The Times December 6, 2000 the subsidiary rights comprised within that article were not absolute and it was always necessary to consider all the facts and the whole history of the proceedings in a particular case to judge whether a defendant’s right to a fair trial had been infringed. If on such consideration it was concluded that it had been infringed, a conviction would be held to be unsafe within the meaning of section 2 of the Criminal Appeal Act 1968. Their Lordships would endorse the recent decision in R v Togher (The Times November 21, 2000. It was true that the recorder made no exercise of judgment under section 78; but as the Court of Appeal had held, the evidence was compelling and untainted; and there had been in effect two informal identifications of the defendant by the complainant.

The evidence had been rightly admitted.

The defendant had a substantial complaint that the recorder did not direct the jury that there had been a breach of Code D nor give any direction on the effect of that breach.

In their Lordships’ judgment, it was important that the position should be clear.

In any case where a breach of Code D had been established but the trial judge had rejected an application to exclude evidence to which the defence objected because of that breach, the trial judge should in the course of summing up to the jury: (a) explain that there had been a breach of Code D and how it had arisen, and (b) invite the jury to consider the possible effect of that breach.

The terms of the appropriate direction would vary from case to case and breach to breach. But if the breach was a failure to hold an identification parade when required by Code D: 2.3 the jury should ordinarily be told that an identification parade enabled a suspect to put the reliability of an witness’s identification to the test, that the suspect had lost the benefit of that safeguard and that the jury should take account of that fact in its assessment of the whole case, giving it such weight as it thought fair.

In cases where there had been an identification parade with the consent of the suspect, and the witness had identified the suspect, in circumstances involving no breach of the code, the trial judge would ordinarily tell the jury that they could view the

identification at the parade as strengthening the prosecution case but might also wish to alert the jury to the possible risk that the witness might have identified not the culprit who committed the crime but the suspect identified by the same witness on the earlier occasion.

In agreement with the Court of Appeal their Lordships considered that the failure to give the jury a direction on the breach of Code D: 2.3 and its consequences did not lead them to regard the defendant’s trial as unfair or his conviction as unsafe.

The Lords Decision summed up

Where an eyewitness identified or might be able to identify a person arrested on suspicion of involvement in an offence, Code D: 2.3 of the Police and Criminal Evidence Act 1984 (s 66) Codes of Practice imposed a mandatory duty on police officers that, except in the limited circumstances specified in that paragraph, an identification parade was to be held whenever the suspect disputed the identification and consented to the parade. Prior identification by the relevant witness which was considered unequivocal or actual and complete did not displace that obligation.

The House of Lords so held when dismissing an appeal by Forbes from the Court of Appeal, which had dismissed his appeal against his conviction at Crown Court of attempted robbery. At trial the recorder, following Popat, held that since there had been full and complete identification of the defendant a parade was unnecessary. She accordingly admitted the complainant’s identification evidence, without considering section 78 of the Police and Criminal Evidence Act 1984 and in summing up gave no direction to the jury as to the effect of any breach of Code D. The Court of Appeal, declining to follow Popat, held that although there had been a breach of paragraph D: 2.3 the identification evidence had been properly admitted and the conviction was safe. Paragraph 2.3 provides: "Whenever a suspect disputes an identification, an identification parade shall be held if the suspect consents unless paragraphs 2.4 or 2.7 or 2.10 apply. A parade may also be held if the officer in charge of the investigation considers that it would be useful, and the suspect consents."

Comment

The case of Popat was fully reported in Police Journal at Volume LXX1, Number 3, July/September 1998, page, 275. As was said in the comment when Police Journal reported the Court of Appeal decision of Forbes, the lesson is, if it is possible to hold a parade; do so.