R v Forbes

Where the police have sufficient information to arrest a particular suspect, an identification parade must ordinarily be held if an eyewitness has identified or may identify that person, the suspect disputes the identification and consents, and the specified exceptions do not apply. A previous positive, complete or unequivocal street identification does not remove that obligation.

A breach does not automatically require exclusion of the identification evidence. Admissibility depends on the court’s assessment under section 78 of the Police and Criminal Evidence Act 1984. If the evidence is admitted, the jury should be told about the breach, the safeguard which the suspect lost and the significance which the jury may fairly attach to that loss.

The appellant was convicted of attempted robbery after the complainant identified him during a police street search. He denied involvement and requested an identification parade three times, but no parade was held. The recorder admitted the street-identification evidence, applying R v Popat [1998] 2 Cr App R 208.

The Court of Appeal, in a decision reported at [1999] 2 Cr App R 501, held that the failure to hold a parade breached paragraph 2.3 of Code D, but dismissed the appeal because the identification evidence was compelling and the conviction remained safe. The House considered whether paragraph 2.3 applied despite an earlier positive identification and, if so, whether the breach made the evidence inadmissible, the trial unfair or the conviction unsafe.

1. Appeal dismissed unanimously. The Appellate Committee answered the certified question affirmatively. Paragraph 2.3 of Code D applied notwithstanding the complainant’s earlier positive street identification.

2. In the Committee’s considered opinion, paragraph 2.3 imposed a mandatory obligation expressed in clear and practical language. A parade was required where: the police had sufficient information to justify arresting a particular person; an eyewitness had identified or might identify that person; the suspect disputed being the person involved; the suspect consented; and paragraphs 2.4, 2.7 and 2.10 did not apply.

3. The Committee rejected the construction adopted in R v Popat [1998] 2 Cr App R 208. The obligation did not cease because an earlier identification was described as fully satisfactory, actual and complete, or unequivocal. That construction replaced a clear duty with a difficult assessment by the investigating officer and deprived the suspect of protection against honest but mistaken identification. The earlier authority was displaced on that issue.

4. The Committee nevertheless accepted that paragraph 2.3 did not cover every possible situation. A parade might be futile where an eyewitness said that identification was impossible, could identify only clothing, or knew the suspect so well that the case was one of pure recognition. Comparable exceptional circumstances could also fall outside the ordinary requirement.

5. A breach of paragraph 2.3 did not automatically exclude the resulting evidence. The trial judge had to exercise the discretion under section 78 of the Police and Criminal Evidence Act 1984 in light of all the circumstances. Here the street-identification evidence was compelling, untainted and supported by a second informal identification. It was properly admitted despite the breach.

6. Where identification evidence is admitted despite a breach of Code D, the judge should explain the breach to the jury and invite it to consider the possible effect. For failure to hold a required parade, the jury should ordinarily be told that the parade would have tested the eyewitness’s reliability, that the suspect lost that safeguard, and that this should receive such weight as the jury considers fair.

7. Applying article 6 of the European Convention on Human Rights, the Committee considered the facts and the whole history of the proceedings. Although the recorder failed to give the required direction, the compelling and untainted evidence meant that the omission neither made the trial unfair nor rendered the conviction unsafe under section 2 of the Criminal Appeal Act 1968.

1. House of Lords: In [2001] 1 AC 473, the House unanimously dismissed the appeal and affirmed the Court of Appeal’s conclusion that paragraph 2.3 had been breached and the conviction remained safe.

2. Court of Appeal (Criminal Division): In [1999] 2 Cr App R 501, the court departed from R v Popat [1998] 2 Cr App R 208. It held that failure to provide a parade breached paragraph 2.3 of Code D, but dismissed the appeal because the identification evidence was properly admitted and the conviction was safe.

3. Crown Court: The recorder admitted the street-identification evidence on the basis that the completed identification made a parade unnecessary. The jury convicted the appellant of attempted robbery.