Identification Evidence: Rule,Principle,Discretion and Reform of Code D following Forbes

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 identification 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 a parade ought to be held than provided by the present regulatory scheme and at the same time provide a statutory 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 a parade 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.