England and Wales Court of Appeal (Criminal Division) Decisions

Royal Courts of Justice

Strand

London WC2A 2LL

Monday 23rd March 1998

B e f o r e:

LORD JUSTICE HOBHOUSE

MRS JUSTICE BRACEWELL

MR JUSTICE SACHS

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R E G I N A

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CHETAN POPAT

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Handed-down judgment of Smith Bernal Reporting Limited

180 Fleet Street, London EC4A 2HD Tel: 0171 831 3183

(Official Shorthand Writers to the Court)

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MS S BARNES appeared on behalf of the Appellant

MS S WASS appeared on behalf of the Crown

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J U D G M E N T

(As approved by the Court)

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Crown Copyright

HOBHOUSE LJ:

This is an appeal with the leave of the full court by a young man Chetan Popat who on 21st July of last year after a trial at the Central Criminal Court before His Honour Judge Rogers QC and a jury was convicted on an indictment containing four counts. Counts one and two related to an incident said to have occurred on 10th June 1996 involving an attempted rape and the indecent assault of a 30 year old married woman, SJ. The third and fourth counts related to an incident said to have occurred on 6th November of that year involving a further indecent assault on the same woman and a threat to intimidate her as a potential witness. The Appellant was convicted on all counts. The relevant issue at the trial was whether it was the Appellant who had committed the offences in question and whether the victim's evidence that he was the man was credible and reliable. The point raised on this appeal is one of the proper understanding of Code of Practice D under s.66 of the Police and Criminal Evidence Act 1984 and in particular whether there was a breach of paragraph D2.3 of the 1995 Edition of the Code which 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."

No identification parade was held at which the victim was asked to identify the Appellant. The exceptions in paragraphs 2.4, 2.7 and 2.10 did not apply. The Appellant submits that there was a breach of the Code and that the trial Judge should have excluded the victim's evidence of identification under s.78 of the Act on the ground that it "would have such an adverse affect on the fairness of the proceedings that the court ought not to admit it". The reason why the Crown submit that there was no breach of paragraph 2.3 is that there had already been a proper and valid identification of the appellant by the victim under paragraph 2.17. The point raised by this appeal therefore is one which requires this Court to visit yet again the relationship between these two paragraphs of Code D and the conflicting dicta contained in judgments of this Court.

For present purposes the relevant facts can be briefly summarized. Mrs SJ lived in north-west London. On the morning of 10th June 1996 she had dropped her children off at a playgroup and then went for a walk in her local park. She noticed two young Asian men walking towards her. One of the men, whom she described as about 5ft 6" tall of slim build and with a prominent nose and thick gold coloured earring in his left ear, said to her: "Show us your tits". She ignored him but as she passed he reached out and grabbed her left breast. A struggle ensued in which the second man also took part. He held her from behind while the first man put his hands on her breasts and then bit her on her breast. He then attempted to rape her whilst the second man held her from behind. He then further indecently assaulted her before the two men let her go. She said the incident lasted between five and ten minutes in all. She was able to see the man's face clearly and at close range for most of the time. She reported the incident to the police and was examined by a police doctor.

Subsequent to that incident she went away and did not return until September. She said that about a week after her return she saw the same man again in the street. She was coming out of her house and he was walking towards her from about 200 yards away. He walked towards and past her and after passing her looked back several times but he said nothing.

She said that she saw him for a third time about a fortnight later in her local High Street. He was in a group of young Asians and as he passed her he said "How's your tits". She again had a good view of him. It was about midday. She was sure it was the same man. On the evening of 6th November she was walking to the shops and she saw him again. He pulled her into an alleyway and pushed her onto the ground. A security light came on so she had a good view of him. He kicked her and sat across her chest. He said: "What have you said? Who have you told? You'd better keep your mouth shut." He then indecently assaulted her by attempting to put his penis in her mouth. The incident ended with his running off. She said later that she noticed that he had a facial twitch. She reported the incident to the police and was again examined by the police doctor.

After the first incident on 10th June the police had arrested two suspects one of whom they released after questioning because they were satisfied that he could not have committed the offences. The other suspect was required to stand on an identification parade. The witness did not identify him as her assailant. He was released.

In October the police continued to be concerned to see if she could identify to them the man about whom she had told them. To this end it was arranged for the witness to keep a watch, accompanied by a plain clothes police officer, for the man to whom she was referring. Most of these observations were from or in the vicinity of the her flat where she lived but there was also a session that took place in the shopping centre. Sessions were held on 29th October, 31st October, 14th November, 25th November and 26th November. On 26th November she was keeping watch in the company of WPC Miller from the front window on the first floor of the house in which her flat was. This was a house set back about 6 feet from the pavement line with a clear view of the street in both directions. This session started at 11am. At 12.50pm she observed a man walking down the pavement towards the house whom she said was the man whom she had seen on the five occasions already referred to. She said that as soon as he came close enough for her to see his face she recognized him immediately. She also recognized the flinching on the left side of his face which she remembered from the incident in the alleyway. She also remarked upon the way that he walked with a swagger which she also remembered from previous occasions. She told WPC Miller "That's him". WPC Miller asked her "Are you sure". She replied "Yes". WPC Miller then went out into the street and with the assistance of another officer arrested the man.

The man they arrested was this Appellant. It was not in dispute that he was the man whom the witness had seen walking past her house a few moments before and whom she had pointed out to WPC Miller. It was however clear from what subsequently occurred that he was disputing that he was the man who had committed the offences on 10th June and 6th November.

In interview the Appellant denied the offences and gave explanations for his movements on the days in question which were, he said, inconsistent with his being the assailant.

At the trial it was submitted on behalf of the Appellant that the evidence of the witness concerning her identification of the Appellant on 26th November should be excluded under s.78 of the Police and Criminal Evidence Act. The Judge rejected this submission. There was no basis for criticising what had occurred on 26th November. At that time there was no suspect known to the police or known to the witness otherwise than by his appearance. The witness had not been shown photographs of any suspect nor had anything else occurred which would be likely to make her identification on that day suspect. It was broad daylight. The circumstances of the observation and its duration were both ideal. It was faintly suggested that the witness may have been desperate to identify someone and therefore identified the first remotely similar young man who passed her house on that occasion. There was no basis for this suggestion. She had refrained from identifying anyone on the earlier identification parade; she had not identified anyone on any of the previous observation sessions.

Subsection (b) Code D deals with "Cases where the identity of the suspect is not known" and provides

"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.

2.18 A witness must not be shown photographs, photofit, identikit or similar pictures if the identity of the suspect is known to the police and he is available to stand on an identification parade. If the identity of the suspect is not known, the showing of such pictures to a witness must be done in accordance with annex D."

There is a note for guidance concerning when a suspect is "known".

"D:2E 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. A suspect being "available" means that he is immediately available to take part in the procedure or he will become available within a reasonably short time."

The Codes of Practice are issued by the Secretary of State under s.66 of the Police and Criminal Evidence Act. One of the headings is "The Detention, Treatment, Questioning and Identification of Persons by Police Officers". S.67(8) as originally enacted made it a disciplinary offence for a police officer to fail to comply with any provision of a Code but did not of itself render him liable to any criminal or civil proceedings (s.67(10)). S.67(11) provides that in all criminal and civil proceedings the Code shall be admissible in evidence and if relevant to any question arising in those proceedings be taken into account in determining that question. Thus there is an obligation on police officers (and others charged with the duty of investigating offences) to have regard to and by necessary implication comply with the provisions of the Code. It is part of the purpose of sections 66 and 67 and the Codes that they should guide and direct police officers' conduct in this way. Failure to comply with the Codes may have disciplinary consequences for police officers. The importance of the Codes as laying down requirements which police officers must follow has been stressed in R v Quinn [1995] 1 CAR 480 at 488.

But there is a more fundamental purpose which is to provide standards which can be applied to police conduct and to ensure, as far as it is practicable to do so, the quality and reliability of the evidence collected by police officers and used in criminal proceedings. The areas of interviewing and obtaining admissions from suspects are one example of this; another is identification evidence. Thus the Codes have a direct bearing upon questions arising under ss.76-78 of the Act. At a trial, the trial judge has to consider any question of compliance with the Code in deciding the question of fairness under s.78. But it is not a simple relationship between a question of compliance and the question of fairness. Even where the Code has been complied with, a proper exercise of the discretion under s.78, or the related inherent discretion that the judge has in relation to prejudicial or inherently unreliable evidence, may require the judge to rule that the evidence should not be admitted. Compliance with the Code is a factor but it is not the only factor, nor is it a decisive factor. Similarly non-compliance with the Code is not decisive. It is again only a factor, maybe a cogent factor, in the decision to admit or exclude evidence. In the context of identification evidence the Turnbull principles are always relevant as is the ability of the judge to give appropriate directions and warnings to the jury. It is and remains the duty of the judge appropriately to direct and warn the jury about all matters which may affect the reliability of identification evidence and, in particular, any breaches of the Code that may have taken place. ( R v Quinn sup at p.490; R v Graham [1994] CLR 210) It will thus often be the case that these elements of discretion on the part of the judge and his summing up will supersede any question about the strict interpretation of the Code. Indeed, in the present case, the Judge in his summing up did warn and direct the jury about the significance of the fact that the defendant had not been asked to stand upon any identification parade even though it was his view that the Code did not impose any mandatory obligation to hold one.

When one comes to any decision by the Court of Appeal, the Court is concerned with the safety of the conviction. This takes the critical question one further step away from the question of the interpretation of the Code. Whether or not a conviction was safe has to be assessed having regard to all the relevant circumstances. One of those circumstances will be the decision of the judge not to exclude evidence under s.78; and it is only as an element in that process that the interpretation of the Code comes into the analysis. Thus the appellate decisions have probably all been decided upon grounds to which the actual interpretation of the Code was either not essential or only secondary. However, the judgments contain dicta which it is difficult to reconcile concerning the correct interpretation of the Code and, in particular, the relationship between paragraph D2.17 and D2.3.

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. (eg. Graham sup. )

Section D.2 is headed "Identification by Witnesses". It is divided into two main sections - "(a) Cases where the suspect is known" and "(b) Cases where the identity of the suspect is not known". This division creates a problem because every suspect starts off by being unknown to the police, save where they observe a known individual committing a crime, and there is the stage at which every suspect, although previously unknown, becomes known to the police. The note D2E already quoted provides guidance as to when an unknown suspect becomes a 'known' suspect. But it is obviously possible, and contemplated by the Code that identification by the relevant witness may have taken place at a time before the suspect became a known suspect. The subject matter is identification by the witness. It may be that the suspect is presented to the witness by the police for identification by the witness in which case section (a) applies: or it may be that the witness, already able to identify a suspect, at that time unknown to the police, identifies him as an identified individual to the police so that the police then know who he is.

It is this latter situation which is represented by this case. It was the witness who identified the Appellant to the police. She did so in the presence of a police officer by pointing him out to the police officer and stating that she was sure that he was the man whom she had seen on the previous occasions and who had assaulted and threatened her. He then became known to the police. He did not dispute that he was the man she had pointed out to the police. There is no suggestion that an identification parade was required to confirm that fact.

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.

The present case is not concerned with any of the situations which give rise to the special problems such as where the suspect has been arrested after being pursued and is then identified at the point of arrest. Nor with the situation where, at the scene of the crime, a witness points out to police officers who have arrived on the scene those whom the witnesses say were the miscreants. Nor is it concerned with the type of problems that might arise in the immediate aftermath of the commission of a crime where the suspects are looked for in the vicinity with the assistance of the witnesses. All these situations give rise to potential and special problems which are not specifically addressed in the Code. They require realistic decisions to be taken and evaluations made. Delay in identifying or excluding the suspect may be unacceptable or contrary to the interests of justice. These situations become particularly acute when the police have to decide whom to arrest or whether formally to arrest someone they have already detained.

Further, good practice may in a number of situations require the holding of an identification parade notwithstanding that there has previously been some informal identification of the suspect by the witness. Again, there will be a whole range of situations which give rise to this consideration. The second sentence of paragraph 2.3 gives the officer in charge of the investigation a discretion to hold an identification parade whenever he considers it useful to do so. It is clearly useful to do so wherever it would assist the interests of justice to hold an identification parade. It may also be useful to hold one in order to establish that a witness cannot identify a suspect as well as to establish that he can. Indeed there can be situations where, come the trial, a witness is not going to be relied upon as an identifying witness but where it is nevertheless desirable in the interests of justice that an identification parade attended by that witness should be held. It is however difficult to express that conclusion as a breach of the mandatory terms of the Code rather than as a failure to comply fully with the spirit and purposes of the Code. It also raises difficulties for the simple application of s.78: there is no identification evidence to be excluded. ( R v Skeetes , 5 February 1998)

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.

With this introduction we will now turn to the decided cases (some of which were decided under earlier editions of the Code). We have obtained transcripts of those which are not fully reported. To take first the case of R v Brown [1991] CLR 368 which is strongly relied upon by the appellant. There had been a robbery of a young couple in the street. The issue at the trial was whether the appellant was one of the two men who had robbed them. The identifying witness was the young woman. The circumstances of the robbery made it difficult for her to identify her attacker. But she apparently believed that she might be able to identify him again. She and her companion were taken round the neighbourhood in a police vehicle and within minutes she made a positive identification of the appellant. There was some confusion in the evidence precisely how she had made her identification from the police car. The appellant was arrested and disputed that he had any connection with the robbery. He said that he had just come from the pub. He was arrested. He subsequently asked for an identification parade. Farquharson LJ delivering the judgment of the court said:

"Two issues arise. First of all it is said that Miss B, as the complainant, should have attended the identification parade. The fact that she did not was a contravention of paragraph D2.1 [~2.3] of the Code of Practice to the Police and Criminal Evidence Act 1984 for the identification of persons by witnesses and that accordingly evidence of identification should not have been admitted or alternatively the jury should have been warned of the effect of the breach and her non-attendance at the identification parade." (p.5)

"It was submitted on behalf of the Crown that D:2.11 [~2.17] stood alone and that if there was a satisfactory street identification there was no need for an identification parade under D:2.1, which was the argument acceded to by the learned Assistant Recorder. However, in our view that argument overlooks the mandatory provisions of D:2.1 which says very clearly: "In a case which involves disputed identification evidence a parade must be held if the suspect asks for one ...".

It may in some circumstances be otiose where there has been a street identification but, as was pointed out in the course of argument in this case, there is always the possibility that the witness, seeing the suspect ranged against a number of people of roughly similar appearance, may have doubts or, as DC Hardcastle did, identify the wrong person and of course the loss of the possibility of that happening is the prejudice relied upon on behalf of the appellant and the failure in fact to hold an identification parade.

It was suggested at one stage that there must be some difference between when there is a known suspect and when there is no suspect, but that in our view merely mirrors the distinction between D:2.11, permissive, and D:2.1 mandatory.

We therefore come to the conclusion, without hesitation, that there was a breach of the Code in this case." (pp.7-8)

They however decided, having examined other evidence which tended to confirm the correctness of the witness's identification, to uphold the conviction. The judgment therefore contains a clear dictum that paragraph 2.3 is overriding and requires an identification parade to be held regardless of what has gone before and regardless of whether the suspect has already been identified by the relevant witness at a time when he was not known to the police. It would appear that the judgment was influenced by the fact that the court believed that an identification parade attended by the witness would have served a useful purpose. But this did not, having a regard to the case as a whole, make the conviction unsafe.

In R v Conway [1990] CLR 402 the relevant witnesses said that they knew the men in question by sight. They subsequently ascertained from others what they said were the names of the people they knew by sight. The defendant was arrested. He requested an identification parade. None was held. At the magistrates court the witnesses were allowed to make a dock identification of the defendant. It was held by the Court of Appeal that there had been a clear breach of the Code and that the identification evidence should have been excluded. The defendant's appeal against his conviction was allowed. What had happened in this case was clearly most unsatisfactory. There had never been any acceptable identification of the defendant. The police, having arrested the suspect, should have gone through the proper procedure to ascertain whether or not the witnesses could identify the man they had arrested. The Court of Appeal clearly thought that there was room for error.

In R v Macmath [1997] CLR 586 two young women had witnessed a nasty assault taking place on Christmas Eve in a street in Bath. The witnesses were immediately taken on a tour of the area in a police car and they identified a group of three men one of whom was the appellant. He admitted that he had been at the scene but denied that he had participated in the violence. The issue at the trial was whether he had been correctly identified as being a participant. Giving the judgment of the court Henry LJ said:

"It was under [paragraph 2.17] that the police took both girls for their tour around the neighbourhood in the police car. The Code does not deal with the situation where there is more than one potential identifying witness. In an ideal world, there would only be one potential witness in each car to preserve the integrity of each and every identification. But that was not practicable here, and given the need for speed, it seems to us that it would not have been practicable to take a description either. We see no breach of the Code here: in a volatile situation the primary need is to identify suspects before they disperse. So it was that both girls picked out the three men - though Emma's evidence obviously suffered from the fact that it followed Deborah's. That fact could be properly dealt with by an appropriate direction to the jury. However, once Macmath had been identified as a suspect, then Code D2(a) "cases where the suspect is known" applies. Under D2.3: "whenever a suspect disputes an identification, an identification parade shall be held if the suspect consents ...". That requirement operates unless any of the exceptions set out in the Code apply, and none do here though the appellant had admitted his presence at the scene, but denied his participation, it was still an identification case for the reason that there were a fair number of people in the vicinity at the time, and so presence would not necessarily be evidence of identification as a participant." (p.7)

They held that the trial judge had wrongly failed to consider the possibility that the young women or either of them might have failed to identify the defendant at the parade. They pointed out that the "street" identification was doubtful. It was an identification of a group rather than of an individual and one of the witnesses (Emma) conceded that she only recognised two of the three of them. The identification was made by two girls under circumstances where they may have influenced each other: indeed there was some evidence that this was what had happened. Further one of the witnesses had described the defendant as having had blonde hair when in fact it was brown. The defendant's conviction was quashed. Here again the explanation of the decision is that it was in doubt whether there had ever been any identification, or proper identification, of the defendant by the witnesses in the street. The suspect although known was still not satisfactorily identified and an identification parade should have been held to establish that he could be. It seems that the mandatory requirement of paragraph 2.3 had been broken.

R v Waite (23rd June 1997 unreported) concerned an identification by the victim of a robbery. He said he knew his three assailants by sight. He saw them again on a subsequent occasion. A few days later he saw two of them again. He followed them and managed to flag down a police car. The police then arrested the two men he had pointed out. One, Mr Love, admitted that he had been one of the robbers; the other, Mr Waite, disputed that he was one of the robbers. There were problems about the witness's evidence. After the attack he had been unable to describe his attackers. He said that they were young white men and gave a very vague description of their clothing. Lord Justice Hutchison giving the judgment of the Court said: "In the course of his evidence - and this is an important point in the case - he asserted that he was unable to tell one white man from another and that might account for his inability to give any sort of detailed description." There were other inconsistencies in his evidence. The primary issue at the trial was whether Waite was correctly identified as one of the robbers. No identification parade had been held. At the trial there were problems whether the evidence satisfied the Turnbull criteria. But the point was also taken and relied upon on appeal that there had been a breach of the mandatory requirement to hold an identification parade. It appears to have been conceded that the case did involve a breach of the Code. Brown was followed. The view of the trial judge that there had not been a breach was, in the judgment of the Court of Appeal, "flawed in that it [was] predicated on the assumption that the victim would have picked out the appellant and that had he done so the evidence would have been of little value to the prosecution." (p.16) They pointed out that the purpose of an identification parade can be to establish the inability of the witness to identify the suspect. They referred to the fact that the judge had failed to give the jury an adequate direction and warning about the absence of an identification parade and had failed to tell them that there had been a breach of the Code (citing Conway and Quinn). They added:

"We emphasise that we are dealing with the facts of this case where plainly it would have been material to have a parade. The witness was somebody who could not tell one white man from another. The contention for the defence was that he might have assumed that someone with Mr Love whom he recognised was necessarily someone who had been with him on the night in question. He had not been put to the test of seeing if he could pick out the defendant from a line of men at an identification parade. It was suggested for the defence that [the victim] had erroneously allowed himself to believe the appellant, who was with Love at the time of the arrest, had been with him on the night in question." (p.16)

Having particular regard to the deficient summing up the Court of Appeal quashed the conviction.

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.

In contrast to such cases, there are decisions of the Court of Appeal where it has been held that there was no breach of the Code even though no identification parade was held. Some cases are what is called "recognition" cases where the suspect was already well known to the witness before the commission of the alleged crime and the witness is giving evidence that he saw that individual commit the crime; the fact that the suspect was and is known to the witness is not in dispute. These are not cases which come within section 2 of Code D. (But see R v Tavernier , 26 September 1997, unreported which appears to adopt a different view.)

Similarly there are cases such as R v Oscar [1991] CLR 778 where the evidence of the witness was that she looked out of her window and saw in her garden a man wearing distinctive clothes which she was able to describe. She was not able to see his features but gave an indication of his height, and build. She saw him attempting to break into some premises on the other side of the road and rang the police. Police came and found and arrested a suspect. He was wearing clothes which fitted the witness's description. No identification parade was held. This was not an identification case because the witness was not purporting to have identified any individual person. All she was doing was giving evidence of her observation of an unknown man wearing certain distinctive clothes. It was thus in truth a circumstantial case raising the question: Was it remotely likely that there would be two identically dressed men in the vicinity of the commission of the crime? The Court of Appeal adopted a purposive approach to the Code which is consistent with the analysis which we have made earlier in this judgment.

There is a sequence of decisions of the Court of Appeal decided on a basis which is inconsistent with the dicta in Brown, Conway, Macmath and Waite.

The case of R v Rogers [1993] CLR 386 involved a pursuit of a suspect by a witness and police officers. The police officers caught the suspect. The witness was allowed then and there to identify him as the person he had seen earlier committing criminal offences. No identification parade was held. The Court of Appeal did not consider that there had been any breach of the Code. Until the witness made his identification there was no "known" suspect within the meaning of the Code. Police officers would have had to release the suspect. They adopted a similar approach to that adopted in the case of Oscar.

The judgment of the Court of Appeal delivered by Mitchell J in R v Hickin and others [1996] CLR 584 is rightly described in the Criminal Law Review as an important judgment. The facts of the case were not dissimilar to those in the case of Macmath. It involved an incident of violent disorder in Blackpool involving two groups of football supporters. Two members of one group were viciously attacked and injured by about seven of the members of the other group. Those who were injured were unable to identify who had attacked them. There were video cameras in the area which, although they enabled men in the area to be identified did not cover the actual violent incident. Three members of the public who had witnessed the attack assisted the police. The police took two of them in a car around the adjoining area to help pick out those involved. Having rounded up men believed to belong to the relevant group of supporters, the three witnesses were invited to point out men whom they could identify as having committed acts of violence. There were a number of difficulties about the exercise which the police carried out. The men rounded up had included men subsequently known not to have been involved and did not include all the men who may have been involved. It appears also that the composition of the assembled men was not constant. From time to time some men managed to slip away and others were added by the police. Further, the evidence of the two witnesses who had been taken round in the police car was not wholly satisfactory. One said that he had made no individual identification from the police car.

Fourteen men were in due course charged and committed for trial for public order offences. The identification evidence was not wholly dependant upon the evidence of the three witnesses; there were other identifying features. The jury acquitted seven of the defendants and convicted the other seven who then appealed to the Court of Appeal. No identification parade had ever been held and one of the points raised at the trial and on the appeal was whether there had been a breach of the Code. The Court of Appeal concluded that there had not been any breach. They considered that the situation with which the police were faced was not specifically covered by the Code. They rejected the literalist approach to the construction of paragraph 2.3.

The cases to which they were referred included Oscar and Rogers but, surprisingly, not Brown or Conway. They had cited to them the cases of Brizey (March 1994, unreported) and Greaves (May 1994, unreported). In neither of those cases had there been an identification parade. In Brizey convictions were upheld after witnesses of a robbery had been driven round the adjoining area and picked out two men. In Greaves, witnesses were similarly taken around the adjoining streets in a police car and had identified a group of four youths pointed out to them by the police: the Court of Appeal did not consider that there had been any breach of the Code.

The conclusion of the Court in Hickin was that:

"What each of the four cases illustrates is that Code D is not to be interpreted in such a way as to require the police to act in a manner which would be an affront to common sense." (p.14)

"We find it unnecessary to decide whether the situation confronting the Blackpool police on the night of May 21st 1994 was one which is catered for in the Code. However, following Oscar and Rogers we strongly incline to the view that it was not. We accept that the high water mark of the submission that it was is that these men were arrested suspects at the time of the identifications. This (in other words) is said to be a case where the identity of the suspects was "known" and that therefore it is appropriate to proceed only by way of identification parade. That course was not taken and the police accordingly acted in contravention of the Code. That is the nub of the submission.

The circumstances in which a person can be characterised as a known suspect were not defined in the 1991 Edition of Code D. Some assistance is however given in paragraph 2E of the 1995 Edition ...." (p.15)

They then quoted the relevant paragraph. They recognised that there was a powerful argument that the men were 'known' suspects but then asked themselves what were the realities of the situation. They pointed out the desirability of acting immediately, in the group situation at the scene of the incident to confront the available witnesses with the available suspects. They saw no objection in principle to such a course being taken. They stressed the importance of the appearance and clothing of the suspects on the night in question to the process of identification. They concluded that there had been no breach of the Code.

The importance of this judgment is that it is a considered rejection of the literalist approach and the argument that paragraph 2.3 must apply in all situations. In the upshot, having reviewed the evidence relevant to each appellants' conviction, they allowed five of the appeals and dismissed the other two.

Hickin was cited and relied upon in R v Vaughan , 30 April 1997, unreported, where there had been a street identification of a suspect under arrest which did not comply with paragraph 2.17 and no identification parade. The Court decided the case on the basis of a breach of paragraph 2.17 and did not say, as they would have done on the literalist view, that there had been a breach of paragraph 2.3.

R v Bush (27th January, unreported) concerned an incident in a nightclub in which a man was injured by another who was unknown to him. The police were already on the premises. They gathered people together in the foyer and invited the victim to pick out his attacker. The victim picked out the defendant. No identification parade was held. The argument at the trial and on appeal was that there had been a breach of paragraph 2.3. On appeal it was also suggested that the procedure followed did not comply with paragraph 2.17. A number of authorities were cited including Oscar, Rogers and Hickin. The Court of Appeal approved the view of the trial judge that the Code did not apply in this situation. The police needed to know at once whether the witness could identify a person or whether those then present could be eliminated as suspects. The Court of Appeal expressed its opinion in somewhat tentative terms but their approach was clearly inconsistent with the view that the Code always requires an identification parade to be held as soon as the suspect has become 'known'.

In R v Anastasiou [1998] CLR 67 the identifying witnesses were policemen who had been called to a nightclub. They had seen an incident of violence taking place in the car park. The attacker had run back into the nightclub. The premises were searched with the assistance of other officers who had been called. They were very crowded. Eventually a man was found on the roof differently dressed to the man who had been seen in the car park but whom the original officers then identified as being the man they had seen committing the offence. The identification was strenuously disputed. No identification parade was held. The defendant submitted that there had been a breach of paragraph 2.3; Brown was cited. The Court of Appeal rejected this argument:

"It seems to us that when the appellant was found and arrested he was so because he was identified by the arresting officers as the man whom they had seen committing an assault not long before. Until then he did not become a suspect. It is obvious that there was no prior opportunity to put him on an identification parade. Unavoidably the identification here occurred when the appellant was found and arrested. No more formal mode of identification was possible. If he had thereafter been placed on an identification parade it would indeed have been what the Recorder called a "farce". It could have added nothing to the identification already made. In the circumstances the officers would have been doing no more than confirming that the man on the parade was the man that they had arrested. The Code had no apparent application and even if it had, the evidence would have been properly admitted under s.78 of the Police and Criminal Evidence Act. The omission of an identification parade in these circumstances cannot have had any adverse affect on the fairness of the proceedings." (pp.8-9)

This decision of the Court of Appeal therefore had two strands. The first is that it rejects the literalist approach and does not follow the dicta in Brown. The relevant identification having already taken place paragraph 2.3 did not apply. Secondly, they adopted the purposive approach of asking themselves whether the holding of an identification parade would have served any useful purpose. They concluded that in that case it would not. This forms a basis for distinguishing the decisions which have held that an identification parade should have been held.

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 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.

The purposive approach which we consider to be correct is also supported by what was said by the Court of Appeal in the case of R v Malashev [1997] CLR 587 which stressed that considerations of fairness and reliability should govern the distinction between formal and informal methods of identification and emphasised the practical considerations that are applicable in any given case where identifications have to be carried out either at the scene of the crime or in its immediate aftermath.

One of the difficulties that is demonstrated by the judgments to which we have referred is that it seems that the Court of Appeal often did not have the opportunity to look at the overall impact of the previously decided cases. In this judgment we have attempted to carry out that task. We have attempted to provide guidance to those charged with the duty of complying with Code D upon the ambit and effect of paragraph 2.3 especially in relation to suspects previously identified under paragraph 2.17. Nothing we have said should be taken as detracting from the importance of complying with the provisions of the Code and in particular those relating to known suspects. The improvements which they have brought about in the quality of identification evidence and the fairness of trials is well established. Further, it is always necessary to have regard to the purposes of Code D both in interpreting and applying the Code and assessing situations which are not expressly covered by it. The overall purpose is one of adopting fair identification practices and adducing reliable identification evidence. Where insufficient regard is had to these purposes the discretion to exclude evidence under s.78 is likely to be exercised and convictions will be liable to be treated as unsafe.

Returning to the present case we conclude that there was, on the facts of this case, no breach of the Code. The requirements of fairness did not call for the exclusion of the witness's evidence of identification. The Judge was right to admit it. Whether or not he was strictly under an obligation to do so, he gave the jury an adequate warning and direction about the relevance of the absence of any identification parade. As to the evaluation of the identification issue at the trial there were some points of detail which the Appellant was entitled to and did rely upon as for example, the evidence of the Appellant's wearing of earrings. But there was also evidence which tended to corroborate or support the witness's identification in that after his arrest articles were found at the place where the Appellant was living which the witness was able to say were very similar to those which she had seen the man in question wearing on earlier occasions. There is no reason to suppose that her identification was unreliable. In our judgment the convictions of this Appellant were safe and his appeal must be dismissed.