Identification Evidence: Rule, Principle, Discretion and Reform of Code D following Forbes
| Author | Andrew Roberts |
| Published date | 01 June 2002 |
| Date | 01 June 2002 |
| DOI | 10.1177/002201830206600307 |
| Subject Matter | Article |
Identification
Evidence:
Rule,
Principle,
Discretion
and
Reform
of
Code
D
Following
Forbes
Andrew Roberts"
Abstract
This article was written prior to
the
publication of the Police
and
Criminal Evidence Act 1984 (Codes of Practice) (Temporary Modifications
to Code D) Order 2002,
which
came into force on 1 April 2002. It concerns
paragraph D2.3 of the Police
and
Criminal Evidence Act 1984. Codes of
Practice.
now
replaced by the temporary provisions, which sets
out
the
circumstances in which
the
police
were
required to conduct an identifica-
tion parade. It is suggested
that
the
rule in paragraph D2.3 was
not
sufficiently flexible to perform
the
function required of it. The attempts of
the
Court of Appeal
and
the
House of Lords to provide guidance on
the
application of this inadequately drafted provision in
the
cases of Popat
and
Forbes
are subjected to critical analysis. An outline proposal for reform is
put
forward. It is suggested
that
Code D
ought
to be replaced by specific
statutory provision addressing the issue of admissibility. The aim of this
legislation would be to provide a
more
flexible
and
sophisticated rule for
determining the circumstances in which aparade
ought
to be held
than
provided by
the
present regulatory scheme
and
at
the
same time provide
astatutory framework for the exercise of discretion in determining
the
admissibility of eyewitness identification evidence. While the temporary
provisions have introduced some flexibility into determining
the
question
of
whether
or
not
aparade or video identification
ought
to be held,
they
have
not
resolved
the
points of general concern raised in this article. It is
submitted
that
the
case for reform of
the
type outlined in this article is all
the
more pressing.
In
Forbes'
the
House of Lords was required to resolve an issue
that
appeared to have caused
the
Court of Appeal considerable problems,
where
following
the
commission of a crime,
the
police have no
'known
suspect'.?
the
witness is often
taken
to a particular place or on a
tour
of
a
neighbourhood
to see
whether
she or he can spot
the
offender.
If
the
witness does pick
out
an individual as being
the
culprit, are
the
police
subsequently
under
an obligation to conduct an identification parade?
On its face, Code D of
the
Codes of Practice for
the
Identification of
Persons by Police Officers, issued
under
s. 66(b) of
the
Police
and
Criminal Evidence Act 1984, suggests
that
the
police are required to do
so. Paragraph D2.3 provides
that
'Whenever
asuspect disputes an
identification, an identification parade shall be held
if
the
suspect con-
sents
..
.', However,
would
it
not
be
the
case
that
the
witness would
*University of Nottingham
I am very grateful to Professors Di Birch
and
David
Ormerod
for their usual
insightful observations on earlier drafts of this article. I am also indebted to
the
anonymous
reviewer for helpful comments. However. as usual I retain
responsibility for
any
errors.
1[2001J 1 All ER
686.
2 Code D
note
2E explains
that
asuspect is
'known'
when
there
is sufficient
information
known
to
the
police to justify
the
arrest of a particular person for
suspected involvement in the offence.
250
Identification
Evidence:
Reformof
Code
D
Following
Forbes
simply identify
the
same person
on
the
parade?
If
so, would
there
be
any
purpose served in holding aparade? The answers to these questions are
far from clear
and
it is, therefore; unsurprising
that
the issue appears to
have caused
the
Court of Appeal problems.
Whether
or
not
we feel
that
the
police
ought
to hold a parade
following
an
informal identification in
the
circumstances described
above might be influenced by
the
degree of confidence we have in the
ability of
the
police to assess
the
accuracy of the initial act of identifica-
tion.
If
the police are sufficiently
attuned
to the likelihood of
error
and
can be sure
that
the
identification is accurate there seems little purpose
in holding an identification parade. If. on the
other
hand, we
cannot
be
sure of this,
then
the
holding of a parade may provide the suspect
with
some degree of protection against erroneous identification insofar as it is
possible
that
he might
not
be picked
out
at a subsequent identification
parade
thus
casting
doubt
on
the
reliability of the initial identification.
These two positions formed the basis of differing approaches to deter-
mining the
requirement
to hold aparade adopted by the Court of
Appeal. The former was adopted by
the
court in Popat'
and
the latter was
the
view
taken
by
the
court in
Forbes.
4
The first part of this article provides acritique of the decisions of the
Court of Appeal in
Popat
and
Forbes,
and
the House of Lords' opinion in
Forbes.
Examination of
the
approaches
taken
in these cases will be
undertaken
by reference to their view of
the
procedural safeguard of
paragraph D2.3,
and
the role ascribed to
the
trial judge's discretion to
exclude evidence
under
s. 78 of
the
Police
and
Criminal Evidence Act
1984.
It
is submitted in
the
second part of this article
that
while regulations
concerning
the
conduct
of pre-trial procedures are satisfactory,
there
is a
need
to review
both
the rule relating to
the
application
of such proced-
ures
and
the
operation of discretion in determining the admissibility of
eyewitness identification evidence.
It
is suggested
that
admissibility
ought
to be the subject of specific statutory provision. The aim of this
legislation
would
be to provide amore flexible
and
sophisticated rule for
determining
the
circumstances in which aparade
ought
to be held
than
provided by
the
present regulatory scheme,
and
at the same time to
provide astatutory framework for
the
exercise of discretion in determin-
ing
the
admissibility of eyewitness identification evidence.
The
application
of
paragraph D2.3
The decision of
the
House of Lords in
Forbes
was precipitated by contrast-
ing
treatment
by the Court of Appeal of apparent breaches of paragraph
D2.3 in
the
cases of
Popat
and
Forbes.
The facts of the cases differ slightly,
but
insignificantly for the purposes of this article, by virtue of the time
that
had
elapsed
between
the
crime
and
the initial act of identification,
but
are similar insofar as
they
appear to fall within paragraph D2.17 of
the
Code which provides that:
3
[199812
Cr
App
R
208.
4(1999)
163JP629.
251
To continue reading
Request your trial