R v Forbes (Anthony Leroy)
| Jurisdiction | England & Wales |
| Judgment Date | 14 December 2000 |
| Judgment citation (vLex) | [2000] UKHL J1214-4 |
| Court | House of Lords |
| Date | 14 December 2000 |
(On Appeal from the Court of Appeal (Criminal Division))
REPORT
[2000] UKHL J1214-4
Present:
L. Bingham of Cornhill
L. Steyn
L. Hoffmann
L. Cooke of Thorndon
L. Hutton
HOUSE OF LORDS
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
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.
1. This is the considered opinion of the Committee.
2. 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.
3. 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.
4. 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
5. 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.
6. 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.
7. 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...
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