Forbes, R v. [2000] UKHL 66

House of Lords
Between
Forbes, R v.Appellant
Before
Lord Bingham of CornhillDate 14 December 2000
Appellate Committees-Two Appellate Committees were appointed pursuant to Standing Order.

DIE MARTIS 25º JANUARII 2000

Regina v. Forbes (Appellant) (On Appeal from the Court of Appeal (Criminal Division))-The appeal of Anthony Leroy Forbes was presented and ordered to be prosecuted subject to the procedures applicable thereto.

DIE MARTIS 28º MARTII 2000

Regina v. Forbes (Appellant) (On Appeal from the Court of Appeal (Criminal Division))-The appeal was set down for hearing and referred to an Appellate Committee.

DIE MERCURII 6º DECEMBRIS 2000

Appellate Committees-Two Appellate Committees were appointed pursuant to Standing Order.

MINUTES OF PROCEEDINGS

DIE LUNAE 27º NOVEMBRIS 2000

Present:

L. Bingham of Cornhill

L. Steyn

L. Hoffmann

L. Cooke of Thorndon

L. Hutton

The Lord Bingham of Cornhill in the Chair.The Orders of Reference are read.The Committee deliberate.Counsel and Parties are called in.Mr R. Purchas QC and Miss S. Nabijou appear for the appellant.Mr D. Perry and Mr P. Wauchope appear for the respondent.Mr Purchas is heard.In part heard, and adjourned until tomorrow.

DIE MARTIS 28º NOVEMBRIS 2000

Present:

L. Bingham of Cornhill

L. Steyn

L. Hoffmann

L. Cooke of Thorndon

L. Hutton

The Lord Bingham of Cornhill in the Chair.The Order of Adjournment is read.The proceedings of yesterday are read.The Committee deliberate.Counsel and Parties are again called in.Mr Purchas further heard.Mr Perry heard.Mr Purchas heard in reply.Further and fully heard.Bar cleared; and the Committee deliberate.A draft Report is laid before the Committee by the Lord in the Chair.The Report is considered and agreed to, nemine dissentiente .

Ordered , That the Lord in the Chair do make the Report to the House

Ordered , That the Committee be adjourned sine die .

FIFTH REPORT

from the Appellate Committee

14 December 2000

Ordered to Report

The Committee (Lord Bingham of Cornhill (Chairman), Lord Steyn, Lord Hoffmann, Lord Cooke of Thorndon and Lord Hutton) have met and have considered the cause Regina v. Forbes (Appellant) (On Appeal from the Court of Appeal (Criminal Division)). We have heard counsel on behalf of the appellant and respondent.This is the considered opinion of the Committee.The appellant Anthony Leroy Forbes was convicted by a jury of attempted robbery. He appealed to the Court of Appeal Criminal Division which upheld much of his argument but dismissed his appeal. Leave to appeal to the House was refused but the Court of Appeal certified that a point of law of general public importance was involved in its decision. The question is:
"Do the provisions of paragraph D 2.3 of the Code of Practice apply where a suspect has already been positively identified, whether or not in the manner permitted under paragraph D 2.17 of the Code?"
The House gave leave to appeal against the decision of the Court of Appeal. At issue are the proper construction and application of the provisions relating to identification parades in Code D of the Codes of Practice issued under the Police and Criminal Evidence Act 1984. In its judgment in the present case the Court of Appeal departed from an earlier considered judgment of the court (Hobhouse LJ, Bracewell and Sachs JJ) in R v. Popat [1998] 2 Cr App R 208. Implicit in the certified question is an invitation to the House to choose between these two decisions. Should the certified question be answered in the affirmative, a subsidiary question arises as to the proper determination of this appeal.The judgment of the Court of Appeal (Laws LJ, Garland J and Judge Crane) in this case is reported at [1999] 2 Cr App R 501, where the facts are fully rehearsed. For present purposes a brief summary will suffice. In the early evening of 2 May 1998 Mr. Tabassum was driven by a friend into Ilford to obtain some money from a cashpoint machine. He left his friend's parked car and withdrew £10. He was then approached by a man who blocked his path and asked for money, at first on compassionate grounds. On being refused, the man became aggressive. Mr. Tabassum went away but was pursued by the man who threatened to "cut him up" and, standing very close to Mr. Tabassum, revealed what looked like the handle of a knife. Mr. Tabassum made good his escape and rejoined his friend in his car. They drove off and Mr. Tabassum (as he later testified) saw his assailant in the street. As their car passed Mr. Tabassum made eye contact with the man who spat towards the car as it went by. Mr. Tabassum called the police on a mobile telephone, and gave a description of his assailant. The police answered Mr. Tabassum's call a few minutes later and drove Mr. Tabassum around the streets in a police car to look for the man. In due course Mr. Tabassum identified to the police as his assailant a man who turned out to be the appellant. Mr. Tabassum was sure he had identified the right man, and the police arrested the appellant, who denied he had done anything wrong. The appellant continued to deny the accusation against him, and on three occasions before the trial asked for an identification parade to be held. No identification parade was held.At the trial objection was taken to the admission of evidence of Mr. Tabassum's identification of the appellant in the street, partly because of inconsistencies in different descriptions given by him of his assailant and partly because there had been no identification parade, which was contended to be a breach of paragraph 2.3 of Code D of the Codes of Practice. The recorder rejected that submission and said:
"I am satisfied in this case, for the purposes of the definition in R. v. Popat 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 and I rule that the evidence of identification shall be admitted."
The judgments of the Court of Appeal in R v. Popat and in the present case will be considered in detail below.

Background

In many criminal investigations and trials there is little or no doubt that a crime has been committed and the issue (at both the investigatory and trial stages) is who committed it. In such cases reliance may be placed on a wide range of means, of which DNA samples and fingerprints are obvious examples, to link the suspect or defendant with the crime. Where such means are available they are invaluable, whether to confirm suspicion and strengthen proof or to avert suspicion and defeat proof. In many cases of this class, however, it is the evidence of eye-witnesses who saw (or claim to have seen) the criminal incident, or the events leading up to or following it, which is relied on to connect the suspect or defendant with the commission of the offence. Such eye-witnesses, relying on what they have seen, identify the suspect or defendant as the person responsible for the criminal conduct in question. This appeal is concerned, and concerned only, with eye-witness evidence of this kind, which we shall call "eye-witness identification evidence". For purposes of this discussion we shall assume that the identification is disputed by the suspect or defendant, because if it is not no issue arises.It has been recognised for very many years that eye-witness identification evidence, even when wholly honest, may lead to the conviction of the innocent. Following two notorious miscarriages of justice caused by honest but mistaken eye-witness identification, a Departmental Committee was appointed under the chairmanship of Lord Devlin. In its report ( Report to the Secretary of State for the Home Department of the Departmental Committee on Evidence of Identification in Criminal Cases , HC 338, 1976) the Departmental Committee highlighted the problem (in paragraph 8.1):
"We are satisfied that in cases which depend wholly or mainly on eye-witness evidence of identification there is a special risk of wrong conviction. It arises because the value of such evidence is exceptionally difficult to assess; the witness who has sincerely convinced himself and whose sincerity carries conviction is not infrequently mistaken. We have found no forensically practicable way of detecting this sort of mistake..."
The Departmental Committee shared the general view that identification of the defendant in the dock was undesirable, for obvious reasons, and favoured the extended use of identification parades. In paragraph 8.7 it stated:
"Identification on parade or in some other similar way in which the witness takes the initiative in picking out the accused should be made a condition precedent to identification in court, the fulfilment of the condition to be dispensed with only when the holding of a parade would have been impracticable or unnecessary. An example of its being impracticable is when the accused refuses to attend. An example of its being unnecessary is when the accused is already well-known to the witness..."
Recognising the danger inherent in cases dependent on eye-witness identification evidence and in the light of this report, a specially constituted Court of Appeal of exceptional strength gave guidance in R v. Turnbull [1977] QB 224 both on the circumstances in which a trial judge should withdraw a case from the jury and on the directions which should be given where a case is left to the jury for decision.The Royal Commission on Criminal Procedure under the chairmanship of Sir Cyril Philips, which reported in 1981 (Cmnd 8092), did not examine identification procedures in detail, partly because of the work which had already been done on the subject. But in paragraph 3.138 the Royal Commission said:
"We would, however, comment that, in accordance with our general approach, there is a case in principle for regulating by statute identification procedures as well as other aspects of pre-trial criminal procedure. We therefore recommend that when the Government is considering legislation in the field of pre-trial criminal procedure it should examine the possibility of making identification procedures subject to statutory control as well."
The report of the Philips Royal Commission bore fruit in the Police and Criminal Evidence Act 1984 (PACE). Among other detailed objectives that Act sought to recommend procedures which would provide for the effective investigation and prosecution of crime while at the same time, and importantly, safeguarding the legitimate rights and interests of those suspected and accused.In pursuance of this objective section 66 of PACE provided for the issue by the Secretary of State of Codes of Practice to govern the exercise by police officers of statutory powers to search persons and vehicles; the detention, treatment, questioning and identification of persons by police officers; the searching of premises by police officers; and the seizure by police officers of property found on persons or premises. Thus such codes, requiring the approval of Parliament by affirmative resolution, were to govern the conduct of police officers, who were (by section 67(8) as originally enacted) to be liable to disciplinary proceedings for failure to comply, although such failure was not of itself to render the officer liable to any criminal or civil proceedings (section 67(10)). Being directed by the Secretary of State to police officers, the codes could not govern the admissibility at trial of any evidence obtained in breach of the codes. But section 67(11) of the Act provided:
"In all criminal and civil proceedings any such code shall be admissible in evidence, and if any provision of such a code appears to the court or tribunal conducting the proceedings to be relevant to any question arising in the proceedings it shall be taken into account in determining that question."
This provision was supplemented by section 78 of the Act which conferred discretion on the court (or confirmed the discretion of 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 the circumstances in which the evidence had been obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.The first version of Code D, applicable to eye-witness identification procedure, took effect on 1 January 1986. Section 2 was headed (as in succeeding versions of the Code) "Identification by witnesses". The opening paragraphs were headed "(a) Suspect at the police station: the decision as to the method of identification", and paragraph 2.1 provided:
"2.1 In a case which involves disputed identification evidence a parade must be held if the suspect asks for one and it is practicable to hold one. A parade may also be held if the officer in charge of the investigation considers that it would be useful."
Paragraph 2.11 was headed "(e) Street identification" and read:
"2.11 A police officer may take a witness to a particular neighbourhood or place to observe the persons there to see whether he can identify the person whom he said he saw on the relevant occasion. Care should be taken however not to direct the witness's attention to any individual. Where the suspect is at a police station, the provisions of paragraphs 2.1 to 2.10 must apply."
The second version of Code D, applicable from 1 April 1991, reproduced paragraph 2.1 of the earlier code as paragraph 2.3 and paragraph 2.11 of the earlier code as paragraph 2.17. But the distinction between the suspect at the police station and street identification was replaced by a distinction between "(a) Cases where the suspect is known" and "(b) Cases where the identity of the suspect is not known". In this version of the code paragraph 2.1 listed the methods of identification by witnesses which might be used by the police, the first of these being an identification parade.The third version of Code D, which took effect on 10 April 1995, is the version applicable to this case. The distinction between cases where the suspect is known and cases where the identity of the suspect is not known was preserved, but guidance was given on the meaning of this distinction. A guidance note provides:
"References in this section to a suspect being 'known' means there is sufficient information known to the police to justify the arrest of a particular person for suspected involvement in the offence."
Paragraph 2.1 continued to list the methods of identification which might be used, still listing an identification parade first. But in paragraph 2.3 the duty laid on the police investigating officer was rephrased and strengthened:
"2.3 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."
The paragraphs which provide limited exceptions to the requirement stated in the first sentence of paragraph 2.3 are in these terms:
"2.4 A parade need not be held if the identification officer considers that, whether by reason of the unusual appearance of the suspect or for some other reason, it would not be practicable to assemble sufficient people who resembled him to make a parade fair.
"2.7 A group identification takes place where the suspect is viewed by a witness amongst an informal group of people. The procedure may take place with the consent and co-operation of a suspect or covertly where a suspect has refused to co-operate with an identification parade or a group identification or has failed to attend. A group identification may also be arranged if the officer in charge of the investigation considers, whether because of fear on the part of the witness or for some other reason, that it is, in the circumstances, more satisfactory than a parade.
"2.10 The identification officer may show a witness a video film of a suspect if the investigating officer considers, whether because of the refusal of the suspect to take part in an identification parade or group identification or other reasons, that this would in the circumstances be the most satisfactory course of action."
Thus it is plain that if an identification parade is practicable it is the preferred mode of identification. Paragraph 2.17 was also revised, to strengthen the protection afforded to the suspect. It now reads:
"2.17 A police officer may take a witness to a particular neighbourhood or place to see whether he can identify the person whom he said he saw on the relevant occasion. Before doing so, where practicable a record shall be made of any description given by the witness of the suspect. Care should be taken not to direct the witness's attention to any individual."
Thus the operation of the code hinges on the distinction between cases where the suspect is known and cases where the identity of the suspect is not known. This distinction may be directed to different cases or to different stages of the same case. The test is whether there is sufficient information known to the police to justify the arrest of a particular person for involvement in a suspected offence. There will not be sufficient information known to the police to justify the arrest of a particular person unless the police have some apparently reliable evidence implicating that person. In cases where the identity of the suspect is known to the police, various methods of identification are in some circumstances permissible, but the code is clear that an identification parade is the preferred method. While the second sentence of paragraph 2.3 confers a discretion on the investigating officer, the first sentence imposes a duty to which the exceptions are of very limited scope. Thus, if the police have sufficient information to justify the arrest of a particular person for suspected involvement in an offence, and that person disputes that he has been correctly identified as the person who has committed the offence, and the identification of him as the person who committed the offence depends (even in part) on eye-witness identification evidence, and the suspect consents, the code requires that an identification parade be held unless one of the exceptions applies. At the identification parade the eye-witness will have the opportunity, subject to the strict regime governing the conduct of such parades, to identify the suspect. If the eye-witness fails to identify the suspect, that will ordinarily strengthen his position during the investigation and at trial. If the eye-witness does identify him at the identification parade, this is likely to weaken his position at both stages, unless it appears that the eye-witness is identifying not the culprit who committed the crime but the person identified on an earlier occasion. If the suspect apprehends that an identification parade may strengthen the prosecution case, he will no doubt be advised to withhold his consent to the holding of a parade.

The authorities

In three cases decided by the Court of Appeal under the two earlier versions of Code D it was held to be a plain breach of paragraph 2.1 or 2.3 not to hold an identification parade if eye-witness identification evidence was disputed and the suspect expressly or impliedly requested one, and the court recognised the potential detriment to a suspect denied the opportunity to test by means of a parade the reliability of an eye-witness's identification: see R v. Brown [1991] Crim LR 368 and transcript, CACD, 18 December 1990; R v. Conway (1990) 91 Cr App R 143; R v. Graham [1994] Crim LR 212 and transcript, CACD, 17 August 1993. In R v. Brown (transcript, at page 7C) the court did not accept a submission that if there was a satisfactory street identification there was no need for an identification parade, although accepting that there might be circumstances in which, following a street identification, an identification parade might be otiose. We know of no cases to the contrary effect on these two versions of the Code. The 1995 revision of the Code must, we conclude, have been drafted on this foundation of authority. R v. Macmath [1997] Crim LR 586 (and transcript, CACD, 26 March 1997), decided under the current version of the Code, again treated failure to hold an identification parade as a breach of a mandatory requirement of the Code. A similar ruling was given in R v. Wait [1998] Crim LR 68 (and transcript, CACD, 23 June 1997).The Court of Appeal gave judgment in R v. Popat [1998] 2 Cr App R 208 on 23 March 1998. The appellant had been convicted of sexual and other offences committed on 10 June and 6 November 1996. Following a watch kept by the victim and a police officer on the street where the victim lived, the victim had identified the appellant to the police officer and he had been arrested. There had been no identification parade. It was argued on appeal that the trial judge should have excluded evidence of the street identification under section 78, because there had, in breach of Code D, been no identification parade. In the course of a lengthy reserved judgment of the court delivered by Hobhouse LJ the legislation and the codes were reviewed and it was pointed out, quite correctly, that even where non-compliance with the Code is shown exclusion of evidence is not an inevitable consequence. At page 213E the court said:
"Although section D of the Code does not contain any broad statement of principle or object, there is a clear objective that identification parades, well conducted, should be the normal method of identification. It is clearly intended that practices should be avoided which might corrupt or devalue identification evidence. It is also implicitly recognised that the inability of a witness to pick out a suspect on a formal parade may be helpful to the administration of justice and to the suspect should he subsequently have to stand trial.( e.g . Graham ( supra ).)"
Then, at page 214C, the court continued:
"The proposition advanced by the appellant with some support from previous judgments of this Court is that once the suspect has become known to the police there arises a duty in all disputed cases to hold an identification parade attended by the witness. There must always be an identification parade (unless excused by paragraphs 2.4, 2.7 or 2.10) unless the suspect admits that it is he who committed the alleged crime. In our judgment this is a misinterpretation of the Code. The identification of the suspect by the witness has already taken place and it is not a case where the suspect is being produced to the witness by the police but rather the other way round."
Having referred to the discretionary power of the investigating officer to call for an identification parade under the second sentence of paragraph 2.3 of the Code, the court said at page 215C:
"In our judgment the second section of Code D is not to be construed as if it expressly provided for all possible situations. It provides a scheme to be followed and principles to be applied. 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. It outlaws the police attempting to obtain an identification of a known suspect by a witness otherwise than by a formal identification parade or one of the other methods of identifying known suspects authorised by paragraphs 2.4, 2.7 or 2.10. Further, where a previous identification was made under adverse circumstances or may for other reasons have been unreliable or doubtful, good practice may require that the suspect be put on an identification parade to establish whether the witness can confirm his believed identification. Decided cases illustrate this. There ought to be an identification parade where it would serve a useful purpose. The failure to hold an identification parade may affect the fairness of the trial or the safety of a verdict."
The court then considered R v. Brown , R v. Conway , R v. Macmath and R v. Wait , to which we have made reference above and observed (at page 219B):
"In each of these cases the informal identification of the suspect was treated as being open to doubt. If there has not been a fully satisfactory previous identification of the suspect by the witness then there is no reason to say that paragraph 2.3 does not apply. This is to be contrasted with the class of case where (whatever other Turnbull points might be available on other aspects of the case) there is no basis to criticise the informal identification. If it is a one to one identification carried out under good conditions and there is no risk of any corruption of the reliability of the identification then made, the identification by the witness is complete and it can truly be said that no further identification is required and no useful purpose would be served by holding an identification parade."
At page 220A of its judgment the court referred to a sequence of cases which it considered to have been decided on a basis inconsistent with what were described as dicta in R v. Brown , R v. Conway , R v. Macmath and R v. Wait . With one exception, we do not think that these authorities were inconsistent with the cases mentioned. In R v. Oscar [1991] Crim LR 778 (transcript, CACD, 14 June 1991), decided under the 1986 Code, there was no request for an identification parade and it was held not to be an identification case at all. In R v. Rogers [1993] Crim LR 386 (transcript, CACD, 13 January 1993), there was again no request for a parade: the case concerned an informal identification and no reference was made in the judgment to paragraph 2.1. R v. Brizey (unreported, CACD, 10 March 1994) and R v. Greaves (unreported, CACD, 6 May 1994) focused on paragraph 2.17; no request was made in either case for a parade and no reference was made to paragraph 2.3. In R v. Hickin [1996] Crim LR 584 (transcript, CACD, 8 March 1996), a case arising under the 1991 Code to which considerable weight was attached, reference was made to paragraphs 2.13 and 2.17, but not to paragraph 2.3. No request for a parade was made. R v. Vaughan (unreported, CACD, 30 April 1997) and R v. Bush (unreported, CACD, 27 January 1997) both turned on paragraph 2.17. The exception is R v. Anastasiou [1998] Crim LR 67 (transcript, CACD, 23 June 1997) in which the Court of Appeal held that an identification parade following an informal identification would be a farce: it could have added nothing to the identification already made, and in the circumstances the police officers would have been doing no more than confirm that the man upon the parade was the man that they had already arrested. The Code was thus held to have no apparent application.Following its review of these cases the court in R v. Popat (at page 223C) expressed its conclusion:
"In our judgment it is important in evaluating these authorities to differentiate between what are in truth breaches of the Code and what are only failures to have proper regard to the purposes of the Code. The cases illustrate also that the specific provisions of the Code are not all-embracing and that there may be situations which fall outside them. Viewed as a whole the decisions do not bear out the literalist dicta which treat the first sentence of paragraph 2.3 as requiring the holding of a formal identification parade whenever a suspect has become known and notwithstanding that he has previously been properly and adequately identified by the relevant witness. It is thus not correct that paragraph 2.3 requires that an already identified suspect be stood on an identification parade simply because he continues to dispute his identification.
"Therefore, in our judgment, the effect of the Code and the law is that when a suspect has become known and disputes his identification as the person who committed the crime alleged and the police wish to rely upon identification evidence provided by a witness, the question must be asked whether that witness has already made an actual and complete identification of that individual. If the answer to that question is yes then the mandatory requirement of the first sentence of paragraph 2.3 does not apply. If the answer is no, paragraph 2.3 must be complied with and any failure to do so will amount to a breach of the Code. 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 and the difficulties of assessment which this may involve have already been illustrated by the cases to which we have referred. But it is clear from the authorities that they may include situations which do not fit within paragraph 2.17 or any other individual paragraph of the Code. But where, as in the present case, there has been 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."
The appeal was accordingly dismissed. That decision has been followed in later cases, including R v. Popat (No 2) [2000] 1 Cr App R 387.In the present case the Court of Appeal declined to follow R v. Popat : see its judgment reported at [1999] 2 Cr App R 501. It was argued on appeal, as at trial, that the failure to hold an identification parade following Mr. Tabassum's street identification of the appellant had been a breach of Code D 2.3 and that evidence of the street identification should therefore have been excluded by the trial judge. Since the trial judge had relied on R v. Popat in concluding that there had been no breach, the Court of Appeal considered that authority and other authorities in considerable detail. Its conclusion was that there had been a breach on the facts of this case. The court held that the obligation to hold an identification parade was mandatory if the conditions specified in paragraph 2.3 were met, which in this case they were, unless the exceptions applied, which they did not. The interpretation of paragraph 2.3 adopted in R v. Popat was held to amount to a rewriting of the Code. While the existence and cogency of other identifying evidence (including evidence of a street identification under paragraph 2.17) might be very relevant to the trial judge's decision whether or not to admit identification evidence despite a breach of paragraph 2.3, it was not relevant to the separate and prior question whether there had been such a breach.

The application of Code D 2.3

In argument before the House the appellant contended that there had been a breach of paragraph 2.3 for very much the same reasons as had been given by the Court of Appeal. For the Crown it was argued that the law had been correctly stated in R v Popat. We are of opinion that there was a breach of the Code for the following reasons:(1) Code D is intended to be an intensely practical document, giving police officers clear instructions on the approach that they should follow in specified circumstances. It is not old-fashioned literalism but sound interpretation to read the code as meaning what it says.(2) Paragraph 2.3 was revised in 1995 to provide that an identification parade shall be held (if the suspect consents, and unless the exceptions apply) whenever a suspect disputes an identification. This imposes a mandatory obligation on the police. There is no warrant for reading additional conditions into this simple text.(3) Neither the language of Code D nor the decided cases support the distinction drawn in R v. Popat between a suspect being produced by the police to a witness rather than by a witness to the police.(4) We cannot accept that the mandatory obligation to hold an identification parade under paragraph 2.3 does not apply if there has previously been a "fully satisfactory" or "actual and complete" or "unequivocal" identification of the suspect by the relevant witness. Such an approach in our opinion subverts the clear intention of the code. First, it replaces an apparently hard-edged mandatory obligation by an obviously difficult judgmental decision. Such decisions are bound to lead to challenges in the courts and resulting appeals. Second, it entrusts that decision to a police officer whose primary concern will (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, may of course strengthen the prosecution, but it may also protect the suspect against the risk of mistaken identification, and a suspect should not save in circumstances which are specified or exceptional be denied his prima facie right to such protection on the decision of a police officer. Third, this approach overlooks the important fact that grave miscarriages of justice have in the past resulted from identifications which were "fully satisfactory", "actual and complete" and "unequivocal" but proved to be wholly wrong. It is against such identifications, as well as against uncertain and equivocal identifications, that paragraph 2.3 is intended to offer protection to the suspect.We agree with the Court of Appeal in R v. Popat that paragraph 2.3 should not be construed to cover all possible situations. If an eye-witness of a criminal incident makes plain to the police that he cannot identify the culprit, it will very probably be futile to invite that witness to attend an identification parade. If an eye-witness may be able to identify clothing worn by a culprit, but not the culprit himself, it will probably be futile to mount an identification parade rather than simply inviting the witness to identify the clothing. If a case is one of pure recognition of someone well-known to the eye-witness, it may again be futile to hold an identification parade. But save in cases such as these, or other exceptional circumstances, the effect of paragraph 2.3 is clear: if(a) the police have sufficient information to justify the arrest of a particular person for suspected involvement in an offence, and(b) an eye-witness has identified or may be able to identify that person, and(c) the suspect disputes his identification as a person involved in the commission of that offence, an identification parade must be held if(d) the suspect consents and(e) paragraphs 2.4, 2.7 and 2.10 of Code D do not apply.We accordingly answer the certified question in the affirmative.

The effect of the breach

It was readily and rightly accepted for the appellant that even if the failure to hold an identification parade was (as we have concluded) a breach of Code D 2.3, it does not necessarily follow that the evidence of Mr. Tabassum's identification should have been excluded. That would depend on an exercise of judgment under section 78 of PACE, taking account of all the circumstances of the case. But it was argued that in the circumstances here the appellant had been denied a fair trial and his conviction should be considered unsafe. The starting point of this argument was the recorder's ruling (correct in the light of R v. Popat, but wrong in the light of our decision) that there had been no breach of paragraph 2.3. From this it had followed that the recorder had never exercised her judgment whether evidence of Mr. Tabassum's street identification should be admitted or not, that the appellant's counsel had been denied the opportunity to cross-examine the police investigating officer on his decision not to hold an identification parade and that the jury had not been directed on the breach of the code and the possibility of prejudice to the defence of the appellant.Reference was made in argument to the right to a fair trial guaranteed by article 6 of the European Convention on Human Rights. That is an absolute right. But, as the Judicial Committee of the Privy Council has very recently held in Procurator Fiscal (Dunfermline) and another v. Brown (unreported, 5 December 2000), the subsidiary rights comprised within that article are not absolute, and it is 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 has been infringed or not. If on such consideration it is concluded that a defendant's right to a fair trial has been infringed, a conviction will be held to be unsafe within the meaning of section 2 of the Criminal Appeal Act 1968. We would endorse the recent judgment of the Court of Appeal Criminal Division (Lord Woolf CJ, Steel and Butterfield JJ) in R v. Togher, Doran and Parsons (unreported, 9 November 2000).Since no accusation of bad faith was made against the police investigating officer in this case, and since he acted in accordance with the law as then authoritatively laid down, the appellant could have gained no benefit from cross-examination of that officer. That is a complaint without substance.The appellant has a more substantial complaint that the recorder made no exercise of judgment under section 78 whether to admit evidence of Mr. Tabassum's street identification or not. It is true that she did not. But the Court of Appeal had no doubt that this evidence was rightly admitted, despite the breach of D. 2.3 and we agree with the Court of Appeal's conclusion (at page 517E):The evidence was compelling and untainted, and was supported by the evidence (which it was open to the jury to accept) of what the appellant had said at the scene. It did not suffer from such problems or weaknesses as sometimes attend evidence of this kind: as, for example, where the suspect is already visibly in the hands of the police at the moment he is identified to them by the complainant."In this case there were in effect two informal identifications, one when the appellant spat at the passing car and a second when Mr. Tabassum identified the appellant to the police.The appellant also has a substantial complaint that the recorder did not direct the jury that there had been a breach of the Code nor give any direction on the effect of that breach. It is in our judgment important that the position should be clear. In any case where a breach of Code D has been established but the trial judge has 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 has been a breach of the Code and how it has arisen, and(b) invite the jury to consider the possible effect of that breach. The Court of Appeal has so ruled on many occasions, and we approve those rulings: see, for example R v. Quinn [1995] 1 Cr App R 480 at 490F. The terms of the appropriate direction will vary from case to case and breach to breach. But if the breach is a failure to hold an identification parade when required by D2.3, the jury should ordinarily be told that an identification parade enables a suspect to put the reliability of an eye-witness's identification to the test, that the suspect has 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 thinks fair. In cases where there has been an identification parade with the consent of the suspect, and the eye-witness has identified the suspect, in circumstances involving no breach of the code, the trial judge will ordinarily tell the jury that they can view the identification at the parade as strengthening the prosecution case but may also wish to alert the jury to the possible risk that the eye-witness may have identified not the culprit who committed the crime but the suspect identified by the same witness on the earlier occasion.It remains to consider whether the recorder's failure to direct the jury on the breach of D2.3 and its consequences infringed the appellant's right to a fair trial or rendered his conviction unsafe. On this question we are of the same opinion as the Court of Appeal which (at page 518G of its judgment) said:
"In the present case, however, in our judgment the conviction is not rendered unsafe by the Recorder's exiguous reference to the fact that no parade was held. As we have already said, the evidence of street identification was compelling and untainted. It would be wholly artificial to suppose that a reasonable jury might have taken a different view if they had been told that the appellant had been deprived of the chance that the complainant might not have picked out the appellant on a parade."
Again, we bear in mind that there were in effect two informal identifications.The circumstances of this case do not lead us to regard the appellant's trial as unfair or his conviction as unsafe.

Recommendation

The Committee recommend that the Appeal be dismissed; and that the certified question be answered in the affirmative.

Cited in 22 later judgments

and 13 more of the most senior