§ Mr. Edward Lyons
asked the Attorney General what steps will be taken by the Director of Public Prosecutions for England and Wales in the light of the Devlin Report on Identification.
§ The Attorney-General
My right hon. Friend the Home Secretary has already announced to the House that he is studying the Report of Lord Devlin's Committee on Evidence of Identification in Criminal Cases, and he is now engaged in urgent consultations with those having an interest in identification evidence and procedures with a view to making proposals for changes.
The Director of Public Prosecutions and his staff whose concern is the pretrial and trial stages of cases conducted by them have always tried to ensure, so far as lies within their power, that best practice is followed and so to set a standard which should reduce to a minimum the danger of miscarriages of justice resulting from misidentification. The present and past Law Officers have given that policy their full support.
When deciding whether to initiate or continue proceedings and, if so, upon what charges, the Director has no opportunity of hearing and seeing the potential witnesses, and can only consider the evidence as disclosed in their statements. In doing so, however, he applies two tests: first, is that evidence sufficient, if accepted by the jury to justify a conviction; and secondly, does the public interest require a prosecution? It follows that if the evidence, as so disclosed, would justify strong suspicion but not conviction, the decision is against prosecution. The House will, of course, appreciate that on these criteria it may be right to have prosecuted even though, at the subsequent trial, the judge, having seen the witnesses and heard their evidence, decided, and very properly decided, that it would be unsafe to leave the case to the jury.
In every case of which he has the conduct it is the Director's duty to follow the existing law and judicial guidance and 288W not to anticipate future changes. None the less, the Director and I have reviewed the whole area of identification evidence and procedure in order to establish whether, without prejudice to decisions as to changes in the law or practice, we can introduce in the handling of such cases, before and at the trial, still further safeguards against the danger of wrong conviction due to misidentification. We have now agreed upon the following guidelines in cases in which it appears likely that identification will be an issue.
1. All cases of which the Director has the conduct will be given the personal consideration of the Director himself or his Deputy and will, if the Director considers it desirable, be reported to the Law Officers. Such cases will be kept under review in the light of any new developments.
2. The procedure under Section 1 of the Criminal Justice Act 1967 (Committal, with the consent of the defence, by magistrates without consideration of the evidence) will not be used. Instead, the witnesses as to identity will be called to give oral evidence, and it will, of course, be open to the accused himself, at the committal stage, to challenge that evidence and to give evidence of any alibi, and call witnesses to support it. Should, however, there have been no prior opportunity for the police to inquire into such an alibi, it might then be necessary for the Director to seek an adjournment of the committal proceedings for an investigation to be made. If the alibi were substantiated the proceedings could be brought to an end.
3. The Director's representative at the committal proceedings, or Crown counsel at any subsequent trial, will not invite a witness as to identify, who has not previously identified the accused at an identification parade, to make a dock identification unless the witness's attendance at a parade was unnecessary or impracticable, or there are exceptional circumstances.
4. Any failure to comply with the current Home Office guidance, or any which may replace it, as to the manner of holding identification parades, or of 289W showing to potential witnesses photographs of a suspect, will continue to be regarded as an important factor in considering whether or not to institute or, as the case may be, continue proceedings.
5. Where proceedings are instituted, the Director will, subject to the requirements of the public interest, continue his practice of making available to the defence any material likely to assist the defence. In particular he will supply to the accused's solicitors on request the name and address of any witness, whether or not such witness has attended an identification parade, who is known to him as having stated that he saw, or as being likely to have seen, the criminal in the circumstances of the crime, together with a copy of any description of the criminal given by such a person.
In cases not referred to the Director neither he nor I can ensure that these safeguards will be adopted. I very much hope, however, that, pending legislation or judicial guidance, they will be generally accepted and that the Director's advice will be sought in difficult or borderline cases. The Director and I are confident that magistrates and their clerks will fully co-operate in implementing the practice of calling oral evidence of identification at the committal stage.
Finally, I hope that the House will accept that, pending legislation or judicial guidance, the guidelines which I have announced, if generally adopted, will make a substantial contribution to reducing the risk of wrong convictions.