Scottish High Court of Justiciary Decisons

At advising on 25th March 1970,—

LORD JUSTICE-CLERK (Grant).—The three appellants were convicted in the Sheriff Court in Glasgow of forming part of a disorderly crowd, bawling, shouting and so on and committing a breach of the peace. It was clearly established that at the time and place libelled a number of youths were behaving in the manner charged. The question raised by the appeal is whether there was sufficient evidence to entitle the Sheriff-substitute to hold that the appellants were three of those youths.

Two eye-witnesses of the incident, Mr MacDonald and Mrs Miller, gave evidence. Both of them, very soon after the incident, identified to the police seven youths as having participated in the disturbance. According to the evidence of two police officers (which was led without objection and was accepted by the Sheriff-substitute) the youths thus identified included the three appellants. The seven youths on being identified were cautioned and charged and all, except one who was in hospital, were thereafter brought to trial.

At the trial Mr MacDonald and Mrs Miller, who gave every sign of being afraid to implicate anybody, did not identify any of the appellants. Mr MacDonald said that he "could not" identify anyone in court, although he admitted that he had identified seven participants in the disturbance to the police on their arrival. Mrs Miller, however, went further. Although she eventually admitted that she had identified seven participants to the police when they arrived, she was emphatic that the appellants had not taken part and were not among the seven and that any police evidence that she had identified them must have resulted from a mistake. The Sheriff-substitute took the view that there had been no such mistake and, with complete justification, rejected her evidence exculpating the appellants. Accordingly, relying on the decision in M'Gaharon v. H.M. Advocate, he convicted all three appellants.

Mr Brand's first and major argument was based on the wide ground that, where a witness depones that he identified the culprit to the police after the crime, but fails, or is unable, to identify the accused at the trial, the gap in his evidence cannot be filled by police evidence that the person so identified was the accused. If that be so, it seems to me (although this was not conceded) that the decision in M'Gaharon must be wrong. No opinions were delivered in that case, but it is clear that the evidence of identification which was relied upon successfully as justifying the conviction was that of two eye-witnesses who identified the accused to the police shortly after the event, but were unable to identify him at the trial, coupled with police evidence that the accused was the person so identified. Had Mrs Miller's evidence here been similar to that of Mr MacDonald, the situation would have been identical in all material respects with that in M'Gaharon. Her evidence, however, differed from Mr MacDonald's in what is said to be a material respect, and accordingly, even if the appellants fail in demolishing M'Gaharon, that is not the end of the matter.

In my opinion, they do so fail. Direct authority is lacking, but the text-book writers, so far as they go (cf. in particular Alison, vol. ii, pp. 627–628; Macdonald, (5th ed.) p. 325) seem to me, despite the criticisms made of them, to be against the appellants' major contention. I note in passing that the passage in Macdonald just cited stems back to the first edition in 1867, at p. 555. Apart from that, however, what happened (and was upheld) in M'Gaharon was in accordance with what is, and has been for years, the normal practice of the Courts. Not infrequently one has, for example, the situation where a witness who identified the driver of a motor car to the police at the time and so depones in the box, is unable, by reason of lapse of time perhaps, to identify the accused in court. This gap in his evidence is completed by police evidence that the accused was the person so identified. A similar situation arises (as it did in a recent trial) where a witness notes the number of the robbers' getaway car, gives it to the police and is unable to remember it at the trial. The passage in the first edition of Macdonald to which I have referred indicates that the practice followed in M'Gaharon was also the recognised practice over a century ago.

Furthermore, it is in my opinion a practice which is based on law and logic, and I think that the criticisms made of it were largely based on fallacy and misapprehension. This was exemplified by the reliance placed on certain authorities which I gladly accept but which seem to me to have no bearing on the real issue here. I refer in particular to Rex v. Christie and the dicta of Lord Moulton at p. 558, which were approved by Lord Normand in Lejzor Teper v. The Queen, at p. 488. It is perfectly true that evidence of what a witness said (I am not, of course, concerned here with admissions of parties) is not evidence of truth of that statement and that, as Lord Moulton pointed out (loc. cit.), an act of identification is an act of the mind and its accuracy cannot be established by the evidence of witnesses who merely heard or saw it being made. If the Crown were seeking here to rely on the police evidence as supporting the accuracy of the eye-witnesses' identification at the locus, then, on the principle applied in such cases as Christie, they would fail. Equally it cannot be said that evidence that a witness picked out a person at an identification parade is evidence of the accuracy of that identification.

The situation here, however, is quite different. As so often happens, no single witness at the trial identified the appellants in the dock as participants and such identification must therefore be sought from a combination of facts and circumstances spoken to in evidence by different witnesses. The combination in the present case, so far as Mr MacDonald is concerned, is his evidence that he identified seven of the culprits to the police at the time, coupled with the police evidence that three of those seven were the appellants. In the light of what I have already said it seems to me to be perfectly clear that the police evidence is direct, competent and relevant evidence, given on oath, which, when taken in conjunction with that of Mr MacDonald, inculpates the appellants as guilty parties. It is evidence, however, which stems back to a single source, Mr MacDonald, and there must, of course, be corroboration from another source before conviction can properly follow. The appellants say there is no such corroboration and that brings me to the subsidiary argument, which raises, to my mind, the crucial question in the case.

That argument, put shortly, is that, esto Mr MacDonald is covered by the M'Gaharon umbrella, Mrs Miller is not, and that her evidence, even in conjunction with that of the police, cannot provide the corroboration required. In M'Gaharon the two eye-witnesses were, like Mr MacDonald, "unable to identify" the accused at the trial. Alison, vol. ii, p. 628, refers to the witness who "cannot say" that the accused is the person previously identified, and Macdonald, (5th ed.) p. 325, deals with the witness who is "in difficulty as to this matter." Mrs Miller, however, categorically deponed, not that she had any such inability or doubt, but that the appellants were neither identified by her at the locus nor involved. Accordingly it was argued that, even accepting M'Gaharon, the police evidence in that case merely provided a link in the evidence (as in the case of Mr MacDonald) which the eye-witnesses themselves were unable to provide and was thus the best available evidence: whereas in Mrs Miller's case there was no missing link and the police were not entitled to destroy the link she had provided and to replace it with another link provided by their own second-best evidence. (This appears to subsume that the evidence of the person making an identification to the police is better evidence, in the legal sense, in regard to who was identified than that of the policemen to whom it was made.) It was also said that, if one founded upon Mrs Miller's evidence that the persons she had identified to the police were participators (and that evidence is, of course, essential to the Crown case), one must take it with her qualification that the appellants were neither identified nor involved. In any event, it was said, the police evidence, quoad Mrs Miller's identification, went only to credibility.

I think that some confusion may have arisen here, through the loose use of language. A question such as "Is this the best (or direct or primary) evidence?" has little meaning unless one obtains the answer to the counter-query "Evidence of what?" It is the answer to the latter which bulks large in the present case. Furthermore, the phrase "going to credibility only" is not one to be used without due consideration of the particular circumstances, and indeed of the point which I have just made. Evidence may competently be led to establish the fact that a witness made on another occasion a statement different from his evidence in the box. That evidence, having been led, becomes competent evidence in the case and, if accepted, falls to be considered in relation to any issue in the case to which it is relevant, i.e., which it tends either directly or indirectly to prove or disprove. In the normal case, evidence that a witness made a different statement on another occasion is relevant solely on the question of credibility: for the fact that the statement was made, while highly relevant on the issue of credibility, is not evidence of the truth of the statement and accordingly does not normally have any relevant bearing or evidential value quoad the basic issues in the case. Here, however, the evidence of the police as to Mr MacDonald's identification is highly relevant on the vital issue of whom he identified. Similarly, it seems to me that their evidence as to Mrs Miller's identification, having been competently and properly admitted, is evidence in the case which is relevant not merely on the question of her credibility but also, as in Mr MacDonald's case, on the vital issue—were the appellants among those whom she identified?

The situation, as I see it, is this:—If a witness states on oath in the witness-box that he identified the culprit to the police shortly after the event, when his memory was still undimmed, it may be established by the evidence of the police concerned who the person was who was so identified. If that be done, the identification of that person by the witness is complete. The evidence of the police as to who was identified is primary and direct evidence of that matter and no question arises of hearsay evidence in the sense of evidence designed to establish the truth of a statement by proving that the statement was made. The evidence of the police is evidence, not of the accuracy of the identification which was made, but of who was in fact identified. On this matter the evidence of the police is just as direct and primary as that of the person who made the identification. Where there is a conflict between the two, it is for the Court (or jury) to decide which of them is telling the truth. Thus, if a witness says, "I identified my assailant to the police at the locus," the first condition for the operation of the rule is satisfied. (Contrast the unreported case of Kemp, 15th September 1950, to which we were referred.) If the witness goes on to say, "The man whom I identified is not the accused," and two policemen depone that the man identified was the accused, the fulfilment of the second condition depends upon whether the evidence of the identifying witness or that of the police is accepted. If the evidence of the police is accepted, the rule applies and the chain is complete.

In my opinion, that is the situation here and no question of hearsay (in the sense indicated above) arises. The Sheriff-substitute accepted Mrs Miller's evidence that she identified seven participants to the police, but he has rejected her evidence, as he was entitled to do, that she did not so identify the appellants and that they were not present. On the crucial question of whom she in fact identified, he has preferred the evidence of the police. The purpose and effect of that evidence, as in M'Gaharon, was not to establish the accuracy of the identification (in regard to which it could only be secondary and hearsay) but to establish the vital fact that the appellants were some of those identified. On this matter the police evidence is just as primary and direct as that of Mrs Miller.

It was suggested during the debate that to decide in favour of the Crown would be to set foot upon a dangerous and slippery slope with no knowledge of how far one might slide. These fears, however, appear to me to be based to some extent on hypothetical cases the facts of which would not come within the scope of the views which I have expressed, and also on the fear that the police might manufacture evidence in order to obtain convictions. That fear seems to me to be substantially more hypothetical than the real and existing danger of intimidation of Crown witnesses and the miscarriage of justice which results therefrom. The object of leading evidence in a criminal trial is, or should be, the elucidation of the truth. I have no doubt that, despite frightened witnesses, it has been elicited here.

I would answer the question in the affirmative and refuse the appeals.

LORD WHEATLEY .—This is an appeal by way of stated case against conviction of the three appellants on a charge that on 14th June 1969 in Wallacegrove Place, Glasgow, they formed part of a disorderly crowd, bawled, shouted, cursed and swore, ran about the roadway, threw stones and committed a breach of the peace. The learned Sheriff-substitute found that such an offence had been committed and his finding on this aspect of the case was not disputed. He further found that each of the three appellants had been sufficiently identified in law, and it is this finding which is the subject of dispute. Two witnesses were adduced by the Crown in an endeavour to establish identification. The first of these, a Mr John MacDonald, deponed that, while he had witnessed the breach of the peace, he could not identify anyone in court as having been participating therein. He admitted, however, that, an hour or two later and following a further incident, he had identified to police officers seven people who had been participant in the offence, and did not dispute the police evidence that the appellants were three of the persons so identified. Two police constables testified that MacDonald had identified to them the three appellants as having been three of the seven participants, all of whom had been arrested by them following the identification by MacDonald and another witness, Mrs Miller. The second witness adduced by the Crown to establish identity was Mrs Miller, and she was adamant throughout her evidence that the three appellants were not involved in the offence charged. She further strenuously denied the evidence of police officers that shortly after the offence she had identified to them the three appellants as having been participants, and stated that they must have been mistaken about that.

Primo loco it was argued by counsel for the appellants that the Sheriff-substitute was wrong in holding that in both instances identification had been established by proper evidential standards. I agree with your Lordship in the chair that, so far as the identification involving MacDonald is concerned, this argument cannot succeed. The Sheriff-substitute based his decision on the authority of M'Gaharon v. H.M. Advocate, which he regarded as binding on him in relation to the evidence of both MacDonald and Mrs Miller. That decision is not binding on this Court, which would be entitled to overrule it if so advised. Basically that decision appears to depend on two facts disclosed in the report. The first is that neither of the two complainers was able to identify the accused at the trial. The second is that there was police evidence to the effect that on the evening of the assault the two complainers had identified the accused to them as one of the persons involved in the assault. The report is silent on whether the two complainers admitted in evidence that they had made the earlier identification to the police, although unable to identify the accused in court. I accordingly propose to rest my opinion on the facts of the present case, particularly since no opinions were given in the case of M'Gaharon.

MacDonald's testimony that he could not identify the accused in court as persons involved in the offence left a lacuna in the Crown case. Could that lacuna be competently filled? In my opinion it could, for the simple reason that MacDonald in effect admitted that the persons whom he had identified to the police were people involved in the offence and the police witnesses stated that the three appellants were persons so identified. There was accordingly no contradiction between the evidence of the eye-witness and the evidence of the non-eye-witness. A witness's recollection of a person whom he may have seen only once before may become dim and blurred or may even be wiped out for a variety of reasons during the period between the incident and the trial. But if he says, "I cannot identify anyone here in court but much nearer the time I did identify the persons involved," I see no reason in principle why evidence should not be competently led to establish the identity of the persons so identified. The latter evidence is not contradictory of but supplementary to the former evidence, and in the circumstances comes from the best available source. The authorities cited to us to support this argument really start from and hinge upon a passage in Alison's Criminal Law, vol. ii, p. 628. The learned author there said:

"Sometimes the witnesses say that they recognised the person shown them in precognition to be the person referred to in their evidence, but that they cannot say that the prisoner at the bar is the same whom they saw when formerly examined. In such a case, it lies upon the prosecutor to prove that he is so, and then the chain is rendered complete."

That passage supports the Crown's contention and the view which I have formed so far as MacDonald's identification is concerned. On the other hand, it does not touch the position where the witnesses deny that the prisoner at the bar is the person referred to by them on the previous occasion. I pause to observe that this method of establishing identity has great practical advantages in these days where there are often long delays in bringing to trial even minor cases, but of course the qualifying condition must be present before the method can be invoked.

I am accordingly of the opinion that MacDonald's evidence, supplemented by the police evidence, establishes one identification of the appellants. That, however, is not enough in itself. It must be corroborated. Can corroboration be found in the testimony of Mrs Miller, when considered along with the evidence of the police witnesses? The Crown submit that it can, and that simply by applying the same formula as that which regulated MacDonald's evidence. I cannot accept that the two situations are in pari casu. Again I seek to work out the answer on principle. The Sheriff-substitute found Mrs Miller a witness of no credit whatsoever (this must have been simply in regard to her non-identification testimony) and was strongly of the view that she was deliberately lying because of fear of reprisals. He was perfectly entitled to take that view. In that situation he accepted that part of her evidence which related to the occurrence of the breach of the peace and rejected that part which negatived the appellants as participants and contradicted the police evidence that she had identified them as participants shortly after the occurrence. (I interpose here the observation that this incident where the identification was said to have been made did not form part of the res gestae of the offence libelled.) The Sheriff-substitute has reported that in these circumstances he regarded her evidence on identification as "neutral," in that it did not implicate the appellants, but, having been rejected as unworthy of credit, it did not exculpate them. He accordingly looked to the other evidence in the case to see whether there was sufficient to enable the Crown to discharge the onus of establishing identity, and proceeded to find it in the evidence of the police witnesses and in his interpretation of the law following M'Gaharon. In this I think he erred. The police evidence was competent for the purpose of testing Mrs Miller's credibility. It could not, therefore, be properly objected to. That, however, does not mean that it is relevant to all the issues in the case. Where, then, does that leave the prosecution? There is no corroboration by false denial (Wilkie v. H.M. Advocate ) nor in the fact that she is disbelieved. In the unreported case of Kemp v. H.M. Advocate Lord Justice-General Cooper said:

"It has been laid down more than once in this Court that identification of an accused person as the perpetrator of a crime must always be specific and precise, and I need hardly say that, if a witness who asserts a fact is discredited as a witness, the result is that his evidence disappears, not that it becomes available as proof of the opposite of what he asserted."

What was the basic issue in this case? It was whether the appellants were parties to the breach of the peace. There were only two eye-witnesses called to give evidence about this, and one of them—Mrs Miller—was adamant in her evidence that they were not. The basic issue was not whether she had made an identification to the police which contradicted her evidence on oath. This was an ancillary issue relevant to her credibility. Unlike the position in MacDonald's case, the police evidence did not otherwise fill in a gap in the eye-witness's evidence. Its effect was to contradict it. It was argued that, once she had admitted identifying the seven participants, the issue became simply "Whom was it she identified?" And if the Court accepted the police evidence on this, you rubbed out her evidence on the point and substituted the police evidence, so that in the result you had Mrs Miller's evidence identifying the appellants. I cannot accept this argument. The issue of who was involved in the proven breach of the peace was something only those who were present could speak to and according to our rules of evidence it is only what the witnesses (apart from an accused) say on oath in the witness-box that can be regarded as the measure of their evidence and not what they may have said differently on another occasion. Such other statements may be put to them in order to challenge their credibility or reliability, but they cannot be treated as a replacement of the evidence given in court if that evidence is disbelieved. You cannot say, "I disbelieve that part of her evidence in the witness-box. That leaves a gap in her evidence, so I can prove aliunde what she said or did on another occasion and that can be fitted into her evidence even if it contradicts her evidence on oath." Yet that in effect is what the Crown is seeking to do here. It is not a matter of filling in an admitted lacuna in the witness's evidence by the best available evidence in the circumstances, as could be done in MacDonald's case. It is an endeavour to substitute something which the witness is alleged to have said or done outside of court for the evidence given by the witness in court. If Mrs Miller had identified an accused in court as her brother and had admitted that she had made a statement to the police, in which she had named the participants, but had denied on oath that her brother was a participant and that she had named him in her statement to the police, I do not think that the evidence by police officers that she had named her brother in the statement would be allowed to replace her discredited evidence on oath—cf. Alison's Criminal Law, vol. ii, p. 522. I cannot see how that differs in principle from the circumstances surrounding the evidence of Mrs Miller. How can one logically differentiate between evidence that she pointed to X and said "That is the man" and evidence that she told the police that X was the man? In each case the evidence relates to a fact about what the witness did or said on a previous occasion. As I have said, this type of evidence can be and often is used to discredit a witness, but it has never been allowed in my experience to be substituted for the evidence given by the witness on oath in court, and I do not see in principle how it can be. If it can be justified on the ground that it is simply a fact that is being proved, namely, who it was that the witness identified, then it seems to me to be a short step to allowing similar evidence to prove that as a fact the witness had made an identification although she depones on oath that she had not. Moreover, the practice of holding identification parades could take on a new significance. At present these can have a two-fold advantage. They provide an opportunity for a witness to see a suspected person at a much earlier stage and may make identification or non-identification easier. Reference to this at the subsequent trial may have a bearing on the reliability of the witness's evidence in court. And in the MacDonald type of case it may provide the best available evidence to fill a gap in the witness's evidence when it is consistent with and not contradictory of the witness's other evidence. If, however, the Crown's contention here is right, identification can be established from the evidence of police witnesses who depone that a witness picked out the accused at such a parade, provided the witness admits having attended a parade and picked out a person, although he or she attests on oath that the accused was not that person. The position can thus be reached where the only two eye-witnesses depone in court that the accused was not the perpetrator of the crime libelled but identification of the accused can be established from the evidence of other witnesses that on a previous occasion the eye-witnesses had pointed to the accused as the culprit or had said that he was. I do not think that that is the law of Scotland as it stands at present.

I am very conscious of the problems for the administration of justice arising from the growing practice of witnesses going back on their previous statements. I agree with your Lordship in the chair that the object of leading evidence in a criminal case is or should be the elucidation of the truth. But there are rules which circumscribe the nature and quality of the evidence which can be adduced, the purpose for which it can be adduced, and its evidential value at the end of the day in relation to any particular issue. If these rules, which are based on principles which have been observed by the Courts down throughout the ages, are too stringent in present-day conditions to enable justice to be done, having regard to the interests of all parties and such matters as the presumption of innocence, then it is for the legislature to make the change. I consider that the law as it stands allows us to sanction and accept as legitimate what was done here in relation to MacDonald's evidence about identification. For the reasons which I have given I think that the Sheriff-substitute erred in applying the same rules to the evidence of Mrs Miller. If I am right, and the police evidence could not replace her rejected denial on identification, there was no legal corroboration of MacDonald's legitimately supplemented evidence, and accordingly not sufficient evidence to warrant a conviction.

I would therefore answer the question of law in the negative and quash the convictions.

LORD WALKER .—It was submitted at the outset that identification by eye-witnesses can be established only by their testimony on oath in presence of the Court that the prisoner in the dock is the same person as the person they saw taking part in the events libelled. In my opinion that contention is too broadly stated, for I am satisfied that, in appropriate circumstances, identification may be established by less direct means. It still remains true, as Alison long ago observed, that an identification made near the time of the events libelled may be more reliable than one made ex intervallo in court after the appearance of the accused may have changed and after the recollection of the witness may have become dimmed. On that account he said:

"…the material point for the prosecutor to establish is, that the prisoner was recognised as the man by the witnesses, when examined in precognition soon after the injury; and their testimony on that head may be received and considered, even although they can say nothing as to the prisoner at the bar, provided the prosecutor prove that that was the man shown them before the magistrate; for in so doing they narrate the res gesta, and a most important part of the res gesta connected with the case."

(Alison's Criminal Law (1833), vol. ii, p. 628.)

This passage from Alison appears to have formed the main, if not the sole, authority for Dickson's statement that "hearsay evidence is often admitted in criminal cases to prove that a witness had identified the prisoner recently after the crime." (Dickson on Evidence, 1st ed. (1855), vol. i, para. 100; 2nd ed. (1864), vol. i, para. 100; and 3rd ed. (1887), vol. i, para. 263.) Macdonald, who published the first edition of his Criminal Law in 1867, states at p. 555:

"As regards identification, the accused is himself a production, and must be identified by the witnesses. Sometimes the witnesses are in a difficulty as to this matter at the trial from distance of time, but if they prove that they identified a person in the custody of the police at an earlier period after the offence, and if it be proved aliunde that the accused was the person so identified, that will suffice."

And this statement has remained substantially unaltered through the subsequent editions of his work down to the fifth edition (1948), at p. 325. For some unexplained reason Macdonald and his editors make no reference either to Alison or to Dickson's comment on him. And there is no reported judicial decision on the matter until the recent case of M'Gaharon v. H.M. Advocate . As the report of that case does not contain the opinions of the judges, I cannot with satisfaction to my own mind discover what was its ratio. It seems to me to be authority only for the proposition that identity may be established otherwise than by the evidence of eyewitnesses speaking to the identity of the accused as he stands in the dock. The authorities I have referred to are not so clear as might have been expected, but, taking them in conjunction with the known practice of the Court, I hold that in cases where an eye-witness cannot at the trial identify the accused in the dock satisfactorily or at all, his identity may be established through the medium of an earlier identification made shortly after the event. Such an identification involves, in my opinion, three parties being present about the same time and place, namely, the eye-witness who makes the identification, the person who is identified, and the person to whom he is identified. At least since the Criminal Evidence Act, 1898, all three parties are competent witnesses to speak to such an identification. Where all speak with the same voice, no difficulty seems to arise. Where they differ, the immediate problem is one of credibility and reliability to be solved by the Court. And where the Court rejects the evidence of the eye-witness, a secondary problem arises as to whether the evidence of the persons to whom the identification is said to have been made can by itself establish the fact of identification. On this problem the text-writers to whom I have referred throw but a dim and uncertain light. Alison seems to be saying that the evidence of the eye-witness is admissible as narrative of the identification. Dickson appears to be saying that evidence of the person to whom the identification is said to have been made is admissible to prove that the eye-witnesses had identified the prisoner.

Before proceeding further I think it desirable to look briefly at the facts as found by the Sheriff. According to the evidence of two-policemen, which the Sheriff believed, each of the three appellants whom they took into custody and placed in the police vehicle was identified by each of Mr and Mrs Miller and John MacDonald as being persons whom they had seen participating in a breach of the peace an hour or so earlier. At the trial, in addition to the police only Mrs Miller and MacDonald gave evidence. MacDonald's ultimate position appears to have been that he accepted the police evidence as being correct (so far as that related to his identification of the appellants to them), and he explained that he had failed at an earlier stage of his evidence to identify the appellants because of dimming of his memory. Mrs Miller's ultimate position appears to have been that she admitted having identified seven persons to the police but denied that these included any of the appellants. In argument before us it was submitted that, while the police evidence might be sufficient to support MacDonald's doubtful evidence, it could not supplant Mrs Miller's evidence once that had been rejected by the Sheriff. I am not satisfied that any such distinction between the evidence of Mrs Miller and that of MacDonald can validly be drawn. We do not have the text of their evidence before us but only an account of a somewhat unusual procedure involving recall of witnesses, given by the Sheriff as a result of two remits. I think the real question of law for our decision is whether the evidence of the two policemen was admissible in order to establish the fact of the identification having been made.

It was argued that the evidence of the eye-witnesses relating to identity was primary evidence and that the evidence of the police was secondary and inadmissible. Reference was made to a passage from Lord Normand (quoting from Lord Moulton in Christie'scase, at p. 558) in delivering the advice of the Privy Council in the case of Lejzor Teper v. The Queen, where he said (at p. 488):

"Identification is an act of the mind, and the primary evidence of what was passing in the mind of a man is his own testimony, where it can be obtained. It would be very dangerous to allow evidence to be given of a man's words and actions, in order to show by this extrinsic evidence that he identified the prisoner, if he was capable of being called as a witness and was not called to prove by direct evidence that he had thus identified him."

No doubt the eyewitnesses, if available, must be called to give evidence at the trial. Only then can it appear that they do not satisfactorily identify the accused. But it does not follow that he must be acquitted. Once it is held, as I have held, that identification may be made by an eye-witness, not in court, not on oath and not subject to cross-examination, but simply because it is made close on the heels of the event, so as to acquire a special reliability, then a different result may follow. The police evidence does not seek to establish the identity of the culprit but only the fact that he was identified by the eye-witnesses. In my opinion their evidence of the fact is direct evidence of what was done in their presence and so is admissible. As the Sheriff thought it was sufficient in weight, I think he was entitled to convict and that the question should be answered in the affirmative.

LORD CAMERON .—The answer to the question put in this stated case raises issues of more general importance than appear to arise out of the facts stated by the learned Sheriff-substitute, even if these facts are clarified by his two subsequent reports on elucidatory questions put to him by your Lordships. At the same time, it is necessary, in my opinion, to have particular regard to the context of fact in which the question is posed.

There was a breach of the peace committed by a number of youths in Wallacegrove Place in the Pollokshields district of Glasgow in the mid-afternoon of 14th June 1969. In the course of that breach, bricks and stones were thrown at two men, both of whom sustained injury, and one of whom, named MacDonald, subsequently gave evidence in court. A later disturbance took place in the same vicinity, and police officers were called to the scene with a Black Maria, took statements on the spot from a Mr and Mrs Miller, who had been eye-witnesses of the earlier disturbance in which MacDonald was injured, and, as a consequence of taking these statements and receiving other evidence of identification, apprehended, charged and cautioned seven youths who were taken away in the police vehicle. Amongst them, the police officers who made the apprehension deponed, were the three appellants. After the Millers had given information to the police and while the youths were being put into the police vehicle, MacDonald came on the scene and identified the same seven as being concerned in the disturbance in which he was injured.

At the subsequent trial, both Mrs Miller and MacDonald gave evidence as to the details of the disturbances of which they had been in both cases eye-witnesses, and in one case a victim. When questioned as to his recognition of the appellants in the dock, MacDonald professed not to be able to recognise them as being among the seven he had identified at the time because of the distance of time which had elapsed between the event and the trial, namely between 14th June and 1st September 1969. He alleged that this lapse had dimmed his memory, but he did not seek to deny that he had identified seven persons at the time to the police, and that the police identification of the three appellants, as included in the seven, was correct. Mrs Miller, who, according to the Sheriff, showed signs of apprehension for her own safety, in respect of giving evidence, agreed that she had identified seven persons as perpetrators who were taken into custody at the time of her identification. She, however, added that none of the three appellants was among them. On this latter point she was disbelieved by the Sheriff. It is to be noted that at no time does it appear from the stated case that the appellants attempted to deny, in cross-examination of the police witnesses, that they were among the persons charged and cautioned on the ground subsequent to Mrs Miller's statement to the police and her identification. This is a somewhat bizarre circumstance in light of the powerful arguments with which we were favoured. Neither was the competency of the police evidence as to the identifications made at the time, or alleged to have been made at the time, objected to at the trial as incompetent, or the competency and admissibility of that evidence raised, as I think it should have been, by specific question in the stated case. However, as no objection was raised by the respondent, the case has been argued on the basis that it was open to the appellants to attack the Sheriff's decision really on the ground of the wrongful admission of incompetent evidence. It is in this factual context that the wider questions argued in this case have been raised.

I do not think it could be seriously maintained that, if all the evidence admitted at the trial and accepted by the Sheriff-substitute, as set out in his findings, is accepted as competent, the Sheriff-substitute's decision is open to successful attack. The evidence of MacDonald as to his initial identification, coupled with that of the police officers, provides direct evidence of identification of the appellants by one credible witness who was able to recognise them as participants in the offence charged, and further, that part of the evidence of Mrs Miller which was believed, coupled again with that of the police officers, which was accepted, in my opinion provides ample corroboration of MacDonald. Conversely, if the evidence as to what took place between the police witnesses and Mrs Miller and MacDonald at the time of the apprehension is excluded as incompetent, then I think it is equally clear that the conviction cannot stand, because there would be no evidence at all to link the appellants with the offence charged. Therefore two questions arise: first, whether MacDonald's evidence as to his original identification, and the police evidence linking the appellants with it, was admissible; and second, assuming that the evidence was competent and admissible, whether the same rule would cover the case of Mrs Miller, she having denied on oath that the appellants formed part of the group which she admittedly identified as being among the perpetrators of the offence.

The primary argument for the appellants was that none of the evidence relating to the alleged identification at the time of the arrest was admissible. Identification is a crucial fact, and its proof must be specific and precise, so the argument ran, and evidence of it must be given on oath in the witness-box by witnesses who can speak to facts material to the charge, i.e., implicating the accused in perpetration of the offence.

Further, it was maintained that, if a witness who asserts a fact is discredited as a witness to that fact, his evidence disappears and does not become available as proof of the opposite. This last contention was an echo of an observation by Lord Justice-General Cooper in the unreported case of H.M. Advocate v. Kemp .These propositions, considered as general propositions, do not seem to me open to serious criticism, subject to the qualification that discrediting the evidence of a witness as to a particular fact does not necessarily destroy his whole evidence, because a judge or jury is well entitled not only to select which witness he or they will regard as credible and reliable, but also to select which parts of a witness's testimony they will accept or reject. These general propositions, however, do not really touch the critical issues here, because the crucial question is whether it was competent for MacDonald and Mrs Miller to testify in the witness-box that they had on a previous occasion identified certain persons as concerned in the offence when giving a statement to the police and whether they could be asked as to the nature of that identification and the persons identified. The question in this case arises in a simple form, because, while MacDonald and Mrs Miller gave unchallenged and clear evidence of what they saw, neither was able to make a positive visual identification of any of the appellants in court.

Admittedly identification of an accused is an essential element of the proof of any criminal charge, and this cannot be left upon implication: H.M. Advocate v. Bruce, and H.M. Advocate v. Morton, in particular per Lord Justice-Clerk Aitchison at p. 55. But it is not necessary that identity should be established by visual recognition alone. There are many ways in which the necessary proof of implication and identity can be established without visual recognition by a witness identifying an accused as present and implicated in the perpetration of an offence. For example, finger-print evidence is frequently a potent and indeed irresistible means of identification of an accused person as implicated in an offence. Consequently, to found an argument too rigidly on reference to such a phrase as "identification is an act of the mind," used by Lord Moulton in Rex v. Christie at p. 558, and quoted by Lord Normand in Lejzor Teper v. The Queen, at p. 488, could be both misleading and erroneous. Both these cases were cases of visual recognition, and the observations of their Lordships were directed and related to that matter. To put the question, as it was put by Mr Brand for the appellants, as being whether an accused can competently be identified by evidence of extrajudicial identification spoken to by a third party, to my mind poses the question far too widely. Of course, if that were all the evidence, and the person alleged to have made the extrajudicial identification were not a witness, then (unless he were dead) such evidence would be inadmissible as hearsay and in any event insufficient by itself. The real question is whether a witness may give evidence of identifying the accused when giving a statement to the police, and whether the police can be asked what the nature of that identification was and to whom it related. This is not a matter which is covered by those rules of evidence which admit all that is said or done as part of the res gestae or by the familiar rules as to de recenti statements, the admission of which is limited to the purpose of supporting the credibility of the maker of the statement in that special category of cases in which proof of a de recenti statement made to a third party may competently be admitted. But if the evidence in question cannot be held admissible under either of these heads, equally, I think, it cannot be rejected on the simple ground that its admission would offend against the rule which prohibits or limits the admission of hearsay. The type of identification evidence here in question is visual in character. Such identification is truly an act of the mind and so it is a fact, but one the existence of which can only be communicated to another by recognised means of human communication, and the communication itself is also a fact.

Both of these are as much facts when the communication takes place in court from the witness-box as when the communication takes place between the identifier and the police officer to whom the statement is made. Neither of these facts proves identity, but both are elements in the structure of evidence from which identification may be held proved.

The law of Scotland has long recognised that for various reasons the memory of a witness may become dimmed or the appearance of a person may change between commission of an offence and the trial of an accused. Time, it is true, may dim memory, but time is not the only factor which may inhibit accurate recollection, and if memory fails, so may eyesight. Sometimes also the outward appearance of an accused person may change or be changed between perpetration and trial, e.g. a beard may grow, a moustache disappear, hair change colour and eyes require or be concealed by spectacles. It is because of these human frailties and mutations, natural or artificial, permanent or temporarily assumed, that the law has made provision which has been sanctioned by long and standing practice, that a witness may give evidence on an identification made to a responsible magistrate or officer of police in course of the immediate investigation of a crime, even when, for reasons of defective memory or other circumstances of the nature I have described, he is unable to make a visual recognition or an identification in court.

In Alison's Criminal Law, vol. ii, at p. 627, this is said:

"Identity of person is frequently a matter of the greatest importance to the prisoner; and in weighing the evidence on that head, the jury should rather consider the identification which took place at the time, or shortly after the time, when the events libelled took place, than what takes place ex intervallo in their presence, after the dress or look of the prisoners may have been changed, or the strength of their own recollection diminished…In estimating the comparative weight due to oaths on the subject of identity, it is of importance to recollect that recognition is much more probable, and mistakes in regard to identity are much less likely de recenti than ex intervallo; more especially as, on the first occasion, the dress of the parties is generally the same as when the events in question took place; whereas on the latter it is usually altered, and their appearance has frequently undergone a change from the effects of confinement. On this account, the material point for the prosecutor to establish is, that the prisoner was recognised as the man by the witnesses, when examined in precognition soon after the injury; and their testimony on that head maybe received and considered, even although they can say nothing as to the prisoner at the bar, provided the prosecutor prove that that was the man shown them before the magistrate."

In Macdonald, (5th ed.) p. 325, this is found:

"Sometimes witnesses are in difficulty as to [identification] at the trial from distance of time, but if they prove that they identified a person in custody at an earlier period, and if it be proved aliunde that the person was the accused, that may suffice."

This statement repeats what is set out in the first edition of 1867, at p. 555. Dickson on Evidence, (3rd ed.) vol. i, para. 263, and vol. ii, para. 1776, is to the same effect, as was also the first edition, vol. i, para. 100, and vol. ii, para. 2006. Sir Archibald Alison was writing in 1833. In 1838 a case was reported which is directly in point, H.M. Advocate v. Wight, in which a witness's statement of identification of an accused, made to a police officer investigating the crime, who immediately apprehended the accused as a result, was admitted without objection by defending counsel. The counsel in question was the redoubtable criminal lawyer, Patrick Robertson, afterwards Lord Robertson. The point was recently before the Court of Criminal Appeal in M'Gaharon, in which a Sheriff-substitute's direction to a jury on these lines was sustained as a correct statement of the law, although no opinions were delivered. In face of this long tract of authoritative opinion, spanning well over 100 years, I do not doubt that, in the case of MacDonald, his evidence as to the identification made by him at the time to the police officers and that of those police officers linking the persons then identified with the appellants was properly admitted. This is relevant and important evidence tending towards identification of the accused.

In reaching this conclusion I have not omitted consideration of a contention advanced by Mr Brand that the passage from Alison already quoted limited what he regarded as this exception to the general law to cases where identification was said to have been made before a responsible magistrate in the course of magisterial precognition. Such precognition being taken upon oath, any identification at that time could possibly be regarded as standing in a special position. This was not such a case, and therefore the Crown could not found upon this exception to the general rule that evidence of identity, in order to implicate an accused, must be given in the witness-box. But, in the first place, the precognition referred to by Alison was not of necessity taken upon "oath" (see Alison, vol. ii, p. 138), though no doubt this was frequently done. In the next place, there is no such limitation to be found in Macdonald, who was writing less than 40 years after Sir Archibald Alison, and had the advantage of access to the notes of the distinguished judges to whom he refers in the preface to his first edition, as well as of revision of the text by eminent criminal practitioners, such as Comrie Thomson. The subsequent editions of this work have also been in distinguished and experienced hands. If the limitations for which Mr Brand contended had been recognised and operated over the years, I cannot think there would have been failure to notice and refer to it.

I have also noted the warning which counsel for the appellants gave against embarking on a slippery slope at the end of which, it was said, proof of identity in a criminal trial would be susceptible of establishment solely by evidence of police officers reporting what a witness (or even an uncalled third party) had said to them on this matter-without the witness ever being asked a question on the point when in the witness-box or even being presented as a witness at all. I see no risk of embarkation on such a slope. In the first place, the admissibility of this evidence depends on there being a witness who is called on to testify on the matter of identification. Secondly, the general rule against the admission of secondary evidence, when the best evidence is available, would operate to prevent such a course being successfully pursued. Far from thinking that to admit the evidence challenged in this case would be contrary to sound rules of evidence as understood in our law, I think that the reasons which expressly led to the acceptance of this practice are as valid and operative today as they were when Alison and Macdonald wrote and practised and that they are based on considerations of common sense, as well as representing sound law. Tested against the touchstone of fairness—fairness both to an accused and to the public interest—it appears to me eminently just that evidence of identification (and of any qualification on it) made or given nearest the time of the event under investigation should be available for consideration and assessment by the judge or jury, as the case may be.

The opinion which I have expressed and the conclusion I have formed are related specifically to cases where the witness whose evidence tending towards identification is sought has made such an identification to police officers concerned in the investigation of the offences against the accused or at an officially conducted identification parade. The practice, which has in recent years become a common feature of trials, of evidence being led without objection both for the Crown and the defence as to what passed at identification parades appears to me to be competent, and I am of opinion that the evidence so obtained is properly admitted and falls well within the scope of the law as it has been developed. It is, of course, true that on these occasions an accused person's solicitor is or may be present, but this does not affect the question whether evidence of what the witness did or said at such a parade is competent and therefore properly admitted. I would, however, reserve my opinion as to the extent to which the same principles are applicable in cases of identification made to other witnesses who themselves are not officially charged or associated with the investigation of crime.

I turn now to the second line of attack on the decision of the learned Sheriff-substitute. It was argued for the appellants that, even if MacDonald's evidence and that of the police is admitted and accepted, there is no corroboration in law of that testimony, because Mrs Miller in the witness-box positively asserted on oath that the appellants were not among the perpetrators of the offence. As she denied this on oath, there was no evidence at all that she had identified the appellants. Consequently, whether she was believed or not on this point, it was incompetent to seek to contradict her or supply the absence of evidence from her when she had on a different occasion when not on oath told a possibly different story. I do not accept this contention. If it was competent to admit in the case of MacDonald, who professed to a dimming of memory which disabled him from identification in court, evidence of what he did when the police obtained their statements from him, I cannot see any difference in logic or principle between his case and that of a witness who asserts positively but possibly mistakenly that the accused were not among persons he or she admittedly identified at an earlier stage.

If it is settled practice in our law that it is and has long been competent to take from a witness evidence of identification of an accused person made by him at an earlier stage of the investigation than his or her appearance in the witness-box, then in my opinion it cannot make such evidence incompetent that the witness is unable to make a visual identification in court due to loss of memory or from other cause. I cannot see that it makes any difference in principle to the admissibility of the evidence that the witness denies (and a denial can be due to honest mistake) that the accused in the dock is a person identified as concerned in the crime.

But in any event, it was argued, the contradictory stories told by Mrs Miller and the police on this issue of identification cancelled each other out and so nothing was left to provide corroboration for MacDonald. But assuming that this were the true result on this particular point of Mrs Miller's evidence, the question still remains whether her other evidence, which was believed, and that of the police officers does not provide the necessary corroboration of MacDonald. The fact that the Sheriff-substitute disbelieved Mrs Miller on this one point does no more than leave a gap in her evidence, just as if she had professed not to be able to recognise in the dock any of those whom she had admittedly identified to the police at the time of their inquiry on the day of the offence. She was an eye-witness of the affair and gave a graphic description of it. She was present, shortly afterwards, at the locus and gave information to the police identifying the seven persons as being among the perpetrators. This she admits and by implication admits that she was able to and did identify these seven at that time. It was these seven, including the three appellants, who in fact in consequence of this identification were there and then cautioned and charged with the offence, apprehended and put in the police vehicle. If, as I hold, it was competent to admit the police evidence that Mrs Miller made an identification to them of seven persons, being the seven who were thereupon cautioned and charged, a fact which she did not deny, and if MacDonald identified the same seven, as he necessarily did, and if the police evidence is accepted, as it was, that these seven whom they apprehended included the three appellants, there was, in my opinion, ample evidence of identification of the accused. I am therefore for answering the question in the affirmative.

LORD MILLIGAN .—The circumstances in which the learned Sheriff-substitute has convicted the appellants are shown in the stated case and in his two explanatory reports to have been as follows:—(1) It was proved that there had been a disorderly crowd at the relevant time and place. (2) Mrs Miller and Mr MacDonald had shortly after the occurrence libelled identified as participants in the affray a number of persons. (3) The three appellants were included in the group of persons identified by Mrs Miller and Mr MacDonald as being participants in the affray. (4) Mrs Miller had stated in evidence that the appellants were not involved in the offence, that she had not identified them to the police and that the police officers could have misunderstood her identification at the locus. She had, however, admitted that she had identified seven persons to the police as having been perpetrators of the offence but had stated that the three appellants were not among them. (5) Mr MacDonald had stated in evidence that he could not owing to the passage of time identify anyone in court, but he had not disputed the evidence of the police to the effect that he had identified to them seven persons, including the three appellants. (6) The Sheriff-substitute had disbelieved the evidence of Mrs Miller except in so far as she had admitted that she had identified "the perpetrators" to the police.

Counsel's primary contention for the appellants was that the police evidence relating to what Mrs Miller and Mr MacDonald said to the police was incompetent; evidence of identification must be given in court and the implication of an accused person in an offence could not be established by evidence of extrajudicial statements. It was also submitted on behalf of the appellants that, even if the evidence of the police in regard to what Mr MacDonald had said was competent, the conviction could not stand, as he was not corroborated.

It was submitted on behalf of the Crown that the Sheriff-substitute had been entitled to convict in respect that Mrs Miller and Mr MacDonald had both said that they had identified seven persons as having been involved and that the police had said that these seven persons included the three appellants.

It is in my opinion necessary to appreciate the very limited purpose for which it is sought to rely on the evidence of the police. Their evidence is not being relied on as evidence that the three appellants were among the perpetrators, but only as evidence that Mrs Miller and Mr MacDonald, when asked to identify the perpetrators, identified a number of persons and that the three appellants were in fact included among the number identified.

It is also necessary to keep in view the difference between the position of Mrs Miller and that of Mr MacDonald. In the witness-box Mr MacDonald, while accepting as accurate the police evidence to the effect that he had identified to them a number of persons (who included the appellants) as having been involved in the offence, said that owing to lapse of time he could not identify the three appellants in court. Mrs Miller's evidence was different. Not only did she deny that the appellants were among the persons she had identified to the police, but she also stated categorically that none of the three appellants had been among those involved in the affray.

The question which arises on Mr MacDonald's evidence is very similar to that which arose in M'Gaharon, to which your Lordships have referred. No judgments were given, but the ground of the decision may well have been that, where a witness owing to loss of recollection is unable to identify in court a person whom he has previously identified, it is competent to pray in aid his earlier identification. I agree with your Lordships that the police evidence in regard to Mr MacDonald's identification was competent.

So far as the evidence of the police relating to Mrs Miller's identification to them is concerned, the position at one time appeared to me to be more difficult because of her evidence in the witness-box. It was submitted on behalf of the appellants that, in finding in the police evidence regarding Mrs Miller's identification to them corroboration of Mr MacDonald's evidence, the Sheriff-substitute had not merely ignored Mrs Miller's evidence on oath in the witness-box (as he was perfectly entitled to do) but that he had replaced it by other evidence which was to a completely contrary effect. In the case of James Kemp to which we were referred, the Lord Justice-General (Lord Cooper) had said:

"And I need hardly say that, if a witness who asserts a fact is discredited as a witness, the result is that his evidence disappears, not that it becomes available as proof of the opposite of what he has asserted."

That, however, is not the situation here, as the Crown does not seek to say that, because Mrs Miller was disbelieved in the witness-box, there is evidence of the opposite of what she said. What the Crown does say is that the fact that Mrs Miller identified the three appellants as having been involved in the affair provided sufficient corroboration of Mr MacDonald's evidence, eked out as it was by the police evidence of the identification which he was proved to have made, to justify the Sheriff-substitute in convicting the appellants. It was submitted by counsel for the appellants that in the case of Mrs Miller the police evidence had no evidential value whatever. I cannot agree with that extreme view. It appears to me that the fact that a person, in full knowledge of what he is doing, identifies certain persons as having been involved in an offence which has very recently taken place cannot be completely ignored and that it has evidential value. It does not lose its evidential value merely because the "identifier" gives completely contrary evidence in the witness-box. It may well be that, where a witness denies on oath that he has identified a particular person and also denies that that person was involved in an offence, a judge or jury would be left in doubt as to the weight to be attached to the police evidence regarding earlier identification, but where, as in the present case, the judge has accepted the police evidence, that evidence is in my opinion capable of providing corroboration.

In my opinion the question should be answered in the affirmative.