The holding of an identification parade was mandatory where the suspect was known and available to the police and the suspect disputed identification. The only exception was if, in all the circumstances, it would serve no useful purpose in proving or disproving whether the suspect had been involved in committing the offence.Appeal by the appellant ('H') against his conviction for robbery for which he received a sentence of six months' detention. On 4 June 2002, two sixteen-year-old youths were assaulted and robbed by three male youths. The youths stole a mobile phone aerial from one of the victims and a silver chain from the other. The prosecution case was that both complainants had recognised H from school as one of the robbers. The defence case was one of alibi. There was no other evidence linking H to the robbery. The issue for the jury was whether H had been one of the robbers or whether the complainants had been mistaken in identifying him. Before the commencement of the trial H had applied to the judge to exercise his discretion to exclude the identification evidence of the complainants under s.78 Police and Criminal Evidence Act 1984 on the grounds that there had been a breach of Code D:2.3 of the Codes of Practice issued under the 1984 Act, as amended by Police and Criminal Evidence Act 1984 (Codes of Practice) (Temporary Modifications to Code D) Order 2002 SI 2002/615, no identification parade having been held at the police station. H had submitted that it was obligatory to hold such an identification parade on the basis that it was a case of identification by the victims of H as their assailant and not simply recognition by them of a person already well known to them. H accepted that, if the proper characterisation of the position was one of pure recognition, it would avoid the necessity for the holding of an identification parade (see R v Forbes (2001) 1 CAR 430). The judge rejected H's application and held that the case fell within the exception in R v Forbes (supra) and provided for in para 2.15 of Code D as amended. He held that both witnesses had identified one of the robbers as a boy called Tristan who had attended their school and that although they could not give his full name, it had been perfectly understandable that they would know someone who was not in their class by his first name only. He was clear that this was a recognition case. The judge having so ruled, the case proceeded. H appealed, submitting that: (i) the judge had erred in ruling that this was a recognition case and/or there had been no breach of Code D; (ii) the judge had erred in failing to exclude the identification evidence for that reason; and (iii) the judge, having admitted the identification evidence, had erred in directing the jury that an identification parade was not necessary and in failing to give a warning that the identification evidence had been obtained in breach of Code D.HELD: (1) The modified Code required the holding of an identification parade (see Archbold 2003 para 14-33). The holding of an identification parade was mandatory where the suspect was known and available to the police and the suspect disputed identification. An identification procedure had to be held if: (a) the police had sufficient information to justify the arrest of a particular person for suspected involvement in an offence; (b) an eye witness had identified or might be able to identify that person; and (c) the suspect disputed his identification as a person involved in the commission of that offence (per R v Forbes). The requirement to hold an identification procedure also applied where a dispute as to identity could reasonably be anticipated. Whereas the judge had been right on the evidence before him to characterise the case as one of recognition rather that identification, it did not satisfy the specific example given in Code D:2.15 because, in his prepared statement read out at interview, H had made it clear that he disputed the suggestion that he was well known by the victim. (2) Although the judge had been correct to say that the case was one of recognition, that had not been sufficient to take it out of the Code. Nor did the circumstances of the case fall within the general exception of the Code that it would serve no useful purpose in proving or disproving whether the suspect had been involved in committing the offence. (3) The judge ought to have found a breach of the Code and ought to have given H the benefit of an appropriate direction as to the relevance and effect of that breach. This would have involved the judge explaining to the jury that there had been a breach of the Code and how it had arisen. Further the jury ought ordinarily to be told that an identification procedure enabled suspects to put the reliability of an eye witness's identification to the test, that the suspect had lost the benefit of that safeguard, and that they should take account of that fact in their assessment of the whole case, giving it weight as they thought fit. This had not been done in this case.Appeal allowed.

[2002] EWCA Crim 174

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