A defendant who had elected to give evidence and had embarked on doing so could not frustrate a proper ruling under s 1(f)(ii) of the Criminal Evidence Act 1898 that the Crown be permitted to cross- examine him as to character by refusing to continue his evidence.
The Court of Appeal dismissed the appellant's appeal against his conviction of attempted robbery.
The appellant had been identified in the street by the complainant soon after the commission of the offence. No identification parade was carried out. At the trial the judge ruled, relying on R v Popat  Cr App R 208, that the failure to hold an identification parade did not constitute a breach of paragraph 2.3 of Code D of the Codes of Practice issued under the Police and Criminal Evidence Act 1984, since a full and complete identification had been made at the scene and paragraph D2.3 therefore had no application.
The judge also took the view that the appellant had claimed a good character, and had, by his counsel's cross-examination, attacked the character of prosecution witnesses. Accordingly, she ruled that he might be cross-examined about his own bad character under section 1(f)(ii) of the Criminal Evidence Act 1898.
The appellant indicated that in the light of that ruling he would not continue with his evidence. The judge further ruled that if the appellant refused to return to the witness box the jury might in any event be told that he had previous convictions for dishonesty. The appellant continued his evidence, and was convicted.
Sherry Nabijou (Munro) for the appellant; Piers Wouchope (Crown Prosecution Service) for the Crown.
Lord Justice Laws said that section 1(f)(ii) of the Criminal Evidence Act 1898 dealt only with cross-examination as to character; it conferred no right upon the Crown to adduce evidence as to character. A defendant who had attacked the character of prosecution witnesses but who chose not to give evidence was, therefore, immune from questioning under s 1(f)(ii).
However where a defendant had elected to give evidence and had embarked on doing so, and his credibility as a witness was very much in issue, it would be a mockery of justice if he were allowed to frustrate a proper ruling given under section 1(f)(ii) by remaining mute. The judge's ruling had therefore caused no unfairness to the defendant.
Code D of the Codes of Practice issued under the 1984 Act was plainly mandatory, and paragraph 2.3 only exempted the duty to hold an identification parade in those circumstances specified by the express exceptions to which it referred. However, failure to hold a parade in breach of the Code would not automatically lead to the exclusion of other evidence of identification. Such evidence only fell to be excluded if the judge concluded that to let it in "would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it" within the meaning of section 78 of the 1984 Act.
The reasoning in Popat tended to conflate two questions which were, and should be kept, separate, i.e. whether there had been a breach of paragraph D2.3; and whether the other identification evidence should be excluded under section 78. In the present case there had been a breach of paragraph D2.3 but the other identification evidence, which was compelling and untainted, had been rightly admitted.
It might be useful for a jury to be told that a street or other informal identification lacked the safeguards of the parade procedure, but it would be quite wrong to lay down any rule that the trial judge always had to point out such matters to a jury in a case where there had been no parade and its lack was not excused by any exceptions in the Code.