Regina v Forbes

The House considered the proper construction and application of paragraphs 2.3 and 2.17 of Code D of the Codes of Practice issued under the Police and Criminal Evidence Act 1984. It held that paragraph 2.3 imposes a mandatory obligation to hold an identification parade whenever a suspect disputes an identification and the suspect consents, unless one of the limited exceptions in paragraphs 2.4, 2.7 or 2.10 applies. The court rejected the contrary interpretative approach taken in R v Popat which read into paragraph 2.3 an additional requirement that an earlier identification must not have been "actual and complete". The House emphasised that where a breach of Code D is established the trial judge must exercise the discretion under section 78 of PACE whether to exclude the identification evidence and, if the evidence is admitted despite a breach, should normally direct the jury about the breach and its possible effect on the reliability of identification evidence.

The appellant, Anthony Leroy Forbes, was convicted of attempted robbery. The complainant made a street identification of the appellant and the police arrested him; no formal identification parade was held despite the appellant requesting one on several occasions. The trial judge admitted the complainant's identification evidence, relying on an earlier Court of Appeal decision in R v Popat which treated some street identifications as obviating the need for a parade. The appellant appealed to the Court of Appeal, which held there had been a breach of paragraph 2.3 of Code D and nonetheless dismissed the appeal. The Court of Appeal certified a point of law of general public importance and the House of Lords granted leave to appeal.

(i) Nature of the claim/application: This was a criminal appeal challenging the admission of eye-witness identification evidence on the ground of non-compliance with Code D paragraph 2.3 and arguing that the conviction was unsafe.

(ii) Issues framed by the court: Whether paragraph D 2.3 of Code D requires an identification parade where a suspect has already been positively identified (including under paragraph D 2.17) and, if there was a breach, whether the conviction was rendered unsafe either by admission of the evidence or by failure to direct the jury.

(iii) Reasoning and outcome: The House examined the history and purpose of Code D and the statutory context under PACE, concluding that paragraph 2.3, as revised in 1995, imposes a clear, mandatory duty to hold a parade when the statutory conditions are met and the suspect consents, except in narrowly defined exceptions. The court rejected Popat's approach of treating certain prior identifications as automatically excluding the mandatory duty because that would import uncertain judgmental exceptions and entrust the protection of suspects to investigative officers. The House nonetheless recognised that non-compliance with the code does not automatically lead to exclusion of evidence; that is a matter for section 78. It held that on the facts the street identifications were compelling and untainted and that admission of the evidence had not rendered the conviction unsafe. The recorder should, however, have directed the jury about the established breach and its possible effect, and trial judges should ordinarily so direct where a Code D breach is established but the evidence is nonetheless admitted.

The appeal was dismissed. The House held that Code D paragraph 2.3 imposes a mandatory obligation to hold an identification parade where a suspect disputes an identification and the suspect consents, unless paragraphs 2.4, 2.7 or 2.10 apply; it rejected the narrower interpretation in R v Popat. On the facts the failure to hold a parade was a breach of the Code but, applying section 78 of PACE, the admission of the street identification did not render the conviction unsafe; the recorder ought, however, to have directed the jury about the breach and its possible consequences.

Convicted at trial of attempted robbery (trial court not separately reported here). Appeal to the Court of Appeal (Criminal Division) reported at [1999] 2 Cr App R 501 which dismissed the appeal but certified a point of law of general public importance; leave to appeal to the House was granted and the House of Lords heard the appeal and delivered judgment [2000] UKHL 66.