Criminal lawBy Anthony Edwards, TV Edwards, LondonIdentity proceduresR v Forbes (2000) The Times, 19 December The House of Lords has now clarified the position when a witness has made a...Identity proceduresR v Forbes (2000) The Times, 19 December The House of Lords has now clarified the position when a witness has made a street identification of a suspect and the suspect then wishes to have a further formal identity procedure.R v Forbes confirms that the provisions of the Police and Criminal Evidence Act 1984 (PACE), code D 2.3 are obligatory and that if the defendant asks for a procedure and consents to take part then one should be arranged.

This will be a matter on which solicitors will take careful instructions from their clients at the police station.

In the judgment, Lord Bingham states that if the suspect apprehends that a parade might strengthen the prosecutions case he would doubtless be advised to withhold his consent to the holding of it.

However, this statement must be treated with caution.

A refusal to take part in a parade can be brought to the attention of a jury and adverse comment made upon it.

However, solicitors may in these circumstances seek to ensure that the issue is never raised.

However, the fact that there has been a breach of the Code D procedures does not inevitably lead to the quashing of a conviction.

It is a factor which a judge will take into account in considering the exercise of the discretion under section 78 of PACE.Self-incriminationStott (Procurator Fiscal Dunfermline) v Brown (2000) The Times, 6 DecemberThe Privy Council held that the prosecution may rely, at the trial of an allegation of driving with excess alcohol, upon a self-incriminating statement made under compulsion under section 172 of the Road Traffic Act 1988.

It had been argued that this was a breach of article 6 of the European Convention of Human Rights.

The court accepted that once there had been found to be a breach of article 6 there was no question of balancing the public interest against that breach.However, the interpretation of the article itself allowed self-incrimination if its purpose was reasonably directed towards a clear and proper public objective and if it represented no greater qualification on the rights of the suspect than the situation called for.

In the context of road traffic offences the council held that there was a clear public interest in the enforcement of road traffic legislation and all car users drove with full knowledge of that fact.

However, the case should be read in its own circumstances.

The court upheld the notice because it asked a straightforward and single question.

The answer itself did not convict the driver and the penalty for failure to comply with the request was moderate and non-custodial.

There had been no improper coercion or oppression.

The outcome might be different were any of those circumstances to change.

Section 78 of PACE remained available to deal with any unfair practices.SamplesR v B (A-G ref no.

3/99) (2000) The Times, 15 December The House of Lords held that the Crown may use a sample from the DNA database (notwithstanding that it should have been destroyed) to identify a person from whom a later valid sample was taken.

Again, should any unfairness result the provisions of section 78 of PACE could be used to exclude the evidence in the discretion of the court rather than as a matter of law.