United Kingdom House of Lords Decisions

"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.

"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.

"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.

"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."

"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.

"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."

"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."

"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."

"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 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.

(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.

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.

"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.

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