Factual and Procedural Background
The Appellant was convicted by a jury of attempted robbery arising out of an incident on 2 May 1998. During that incident, Witness A was threatened at a cash-machine and later pointed out the Appellant to officers while they patrolled the area (“street identification”). Although the Appellant requested a formal identification parade on three occasions, none was held.
Following conviction, the Appellant’s challenge to the street identification was rejected by the Court of Appeal (Criminal Division). The Court nevertheless certified a point of law of general public importance concerning the construction of Code D under the Police and Criminal Evidence Act 1984 (PACE). Leave to appeal on that point was granted by the House of Lords.
Legal Issues Presented
- Whether paragraph D 2.3 of the PACE Code of Practice applies even when a suspect has already been positively identified by a witness (whether or not that prior identification complied with paragraph D 2.17).
- If a breach of paragraph D 2.3 occurred, whether the resulting failure to hold an identification parade rendered the conviction unsafe or required exclusion of the street-identification evidence under section 78 of PACE.
Arguments of the Parties
Appellant's Arguments
- Paragraph D 2.3 imposes a mandatory obligation to hold an identification parade whenever a suspect disputes identification and consents to a parade, subject only to the express exceptions in paragraphs 2.4, 2.7 and 2.10.
- The street identification, conducted without a prior record of Witness A’s description and without a subsequent parade, breached Code D; therefore, under section 78, the evidence ought to have been excluded and the conviction is unsafe.
- The Recorder’s failure to rule on admissibility under section 78 and to direct the jury on the breach deprived the Appellant of a fair trial.
Respondent's Arguments
- R v. Popat interpreted the Code correctly: once a witness has already made a “fully satisfactory” identification, paragraph D 2.3 does not mandate a further parade.
- Even if there were a technical breach, the street identification was “compelling and untainted,” so exclusion was unnecessary; any error was therefore non-prejudicial.
- The police officer acted in accordance with the then-authoritative case law, undermining any suggestion that the trial was unfair.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| R v. Popat [1998] 2 Cr App R 208 |
Held that an identification parade is unnecessary where a witness has already made a “fully satisfactory” identification. |
Expressly overruled; the House held that this approach “subverts the clear intention of the Code.” |
| R v. Popat (No 2) [2000] 1 Cr App R 387 |
Follow-on application of Popat principle. |
Consequentially displaced by the present decision. |
| R v. Turnbull [1977] QB 224 |
Guidance on judicial directions in cases involving visual identification. |
Cited to underscore longstanding concern about mistaken identification. |
| R v. Brown [1991] Crim LR 368 |
Failure to hold a parade after request is a breach of Code D. |
Used to support a strict reading of paragraph D 2.3. |
| R v. Conway (1990) 91 Cr App R 143 |
Same principle as Brown. |
Relied upon in rejecting Popat’s departure from earlier authority. |
| R v. Graham [1994] Crim LR 212 |
Mandatory nature of identification parades when requested. |
Cited as consistent with Brown and Conway. |
| R v. Macmath [1997] Crim LR 586 |
Re-affirmed mandatory parade requirement under 1995 Code. |
Supported Appellant’s position. |
| R v. Wait [1998] Crim LR 68 |
Mandatory requirement under paragraph D 2.3. |
Supported a strict interpretation. |
| R v. Oscar [1991] Crim LR 778 |
Example where Code paragraph 2.3 not engaged. |
Distinguished; no request for parade in that case. |
| R v. Rogers [1993] Crim LR 386 |
Informal identification without request for parade. |
Distinguished on similar grounds as Oscar. |
| R v. Brizey (unreported, 1994) |
Focused on paragraph 2.17 (street identification). |
Cited as not detracting from mandatory nature of paragraph 2.3. |
| R v. Greaves (unreported, 1994) |
Same as Brizey. |
Used illustratively. |
| R v. Hickin [1996] Crim LR 584 |
Application of paragraph 2.17. |
Considered non-conflicting with mandatory parade rule. |
| R v. Vaughan (unreported, 1997) |
Paragraph 2.17 case. |
Cited in analysis of authorities. |
| R v. Bush (unreported, 1997) |
Paragraph 2.17 case. |
Same as Vaughan. |
| R v. Anastasiou [1998] Crim LR 67 |
Held parade would have been a “farce” after prior identification. |
Shown as an exceptional circumstance; not adopted as general rule. |
| Procurator Fiscal (Dunfermline) v. Brown (PC, 2000) |
Article 6 ECHR fair-trial analysis. |
Cited to emphasise need for holistic fairness assessment. |
| R v. Togher (unreported, 2000) |
Reiterated fairness analysis under Article 6. |
Approved by the House and applied. |
| R v. Quinn [1995] 1 Cr App R 480 |
Necessity of jury directions when Code D breached. |
Formed basis for guidance on summing-up in the present judgment. |
Court's Reasoning and Analysis
1. Textual interpretation of Code D. The House viewed Code D as a practical, mandatory framework. The 1995 amendment to paragraph D 2.3 states that an identification parade “shall be held” if the suspect disputes identification and consents, unless specified exceptions apply. The judges refused to read additional qualifications into that text.
2. Rejection of the Popat distinction. The Popat ruling, which excused a parade where a witness had already made a “fully satisfactory” identification, was criticised for:
- Replacing a clear rule with a subjective discretionary test.
- Placing the decision in the hands of investigating officers whose priorities differ from safeguarding suspects.
- Overlooking historical miscarriages of justice based on confident yet mistaken identifications.
3. When might a parade still be unnecessary? The House acknowledged limited exceptional situations—e.g., pure recognition cases or where a witness admits being unable to identify—but emphasised that these must be “specified or exceptional.”
4. Application to the facts. All pre-conditions for a mandatory parade were satisfied: the police had grounds to arrest, Witness A could identify, the Appellant disputed identification, and none of the exceptions applied. Consequently, paragraph D 2.3 was breached.
5. Effect of the breach. A breach does not automatically exclude evidence. Under section 78, courts must weigh all circumstances. Here, the street identification was “compelling and untainted,” reinforced by the Appellant’s behaviour at the scene, and involved two separate informal identifications. The Court of Appeal’s view that admission was proper was endorsed.
6. Jury directions. Although the trial judge failed to instruct the jury about the breach and its potential impact, the House held that, on the facts, this omission did not render the trial unfair or the conviction unsafe. Future trials must, however, ensure that any proven breach is explained to the jury together with its possible significance.
Holding and Implications
APPEAL DISMISSED; the certified question is answered in the affirmative: paragraph D 2.3 applies even when a suspect has already been positively identified.
Practical implications include:
- Police officers must hold an identification parade in every disputed-identification case where the suspect consents, unless one of the express exceptions in Code D applies.
- Courts must give juries a clear direction where evidence is admitted notwithstanding a Code D breach.
- The decision overturns the approach in R v. Popat and re-establishes a strict, rule-based safeguard against mistaken identification; however, it does not set a new test for exclusion under section 78, which remains discretionary and fact-sensitive.