Scottish High Court of Justiciary Decisons

JAMES GRAY v. HER MAJESTY'S ADVOCATE [1998] ScotHC 8 (11th November, 1998)

The appellant is James Gray who was convicted at Edinburgh High Court of assault and robbery, breach of the peace, assault and breach of bail. He has now appealed against his conviction for assault and robbery.

The charge related to an assault and robbery in an off-licence in Stockbridge in which the assailant presented a knife at the employees. The critical issue in the case was the identification of the appellant as the robber. One of the employees was able to identify the appellant. In addition there was a videotape from a video camera in the shop which had recorded the scene during the robbery. The Crown led two witnesses who had seen the appellant earlier the same day and identified him as the person shown on the video recording. Their identification of the appellant was unhesitating and not in any way undermined in cross-examination. It is not suggested that there was insufficient evidence to entitle the jury to convict, nor is any criticism made of the trial judge's directions to the jury.

The only point which is raised in the appeal arises in this way. When the jury had retired to consider their verdict, they sent a request to the judge asking to see the video recording again. The trial judge convened the court in the absence of the jury and heard submissions on the matter. The Crown adopted a neutral stance, while counsel for the defence indicated that the court should accede to the jury's request.

Clearly when such a request is made, in deciding whether to grant it, the trial judge exercises a discretion in the particular circumstances of any given case. Here the trial judge refused the request and in his report he explains why he did so. Although he was referred to the relevant passage in Renton and Brown, Criminal Procedure, paragraph 18-87, the task of the judge in interpreting the passage was not made any easier by the fact that it refers to the wrong case of Steele. The correct citation is Steele v. H.M. Advocate 1992 S.C.C.R. 30. The opinion of the Lord Justice General in that case certainly indicates that it would not be competent for a jury to be given a video recording to replay for the purpose of carrying out their own examination of the recording in order themselves to speculate about the (disputed) identity of persons shown on the recording.

As the trial judge acknowledges in his report, he proceeded, however, on the basis that he had grave doubts about the competency of any request by a jury to view a video recording during their deliberations. At the hearing of the appeal, it was not disputed that it would have been competent for the jury to return to the court room and there, in the presence of the judge, counsel and the accused, to view the videotape, the very greatest care being taken, of course, to prevent any extraneous communication with the jury. In so far therefore as the trial judge's decision was based on his impression that the proposed course of action would always be incompetent, it was not soundly based.

In his report the trial judge goes on, however, to say that he had less hesitation in refusing the request

Before this court it was common ground that, if this or any other jury had been allowed to view a video recording in the course of their deliberations, this could not have been so as to permit them to make their own assessment of its quality and decide for themselves whether they could identify the appellant from the recording, but simply in order to assist them in making a relevant assessment of the evidence of those witnesses who had identified the accused from it.

The question therefore comes to be whether, if he had considered the request from that standpoint, the trial judge in this case would have been entitled to refuse it. We have been able to examine a transcript of the evidence of the two witnesses concerned and it is a striking feature of their cross-examination that counsel did not seek to attack the reliability of their evidence under reference to any suggested defect in the quality of the video recording. The nearest that he approaches to that issue is in the course of a passage of evidence which occurs after one of the witnesses who viewed the recording, Mr. Anthony, is asked what it is that makes him certain that the robber in the video is the appellant:

"What is it that places you in this state of certainty? - I would say basically his

facial features and the general build of his body.

Leaving aside the general build of his body, which is one question, what about

his facial features, was it the nose? - The nose, yes.

What about eyes? - I mean, you can't see clearly on the video the man, it's the

nose, the nose on the face, that put me in no doubt.

Is the position very clearly, not just you can't see clearly facial features at all,

all you can see is a bearded man of slight build? - No.".

From the foregoing passage it can be seen that the only reference by the witness to lack of clarity on the video was in relation to a question about the robber's eyes and that the single question put by counsel suggesting that all that could be seen was a "bearded man of slight build" was answered firmly in the negative. For the rest, the cross-examination of the two witnesses in question was conducted along entirely different lines and without reference to any lack of clarity on the video.

In some cases identification evidence given by reference to a video recording might, of course, be challenged on the ground that the quality of the recording was so poor that it could not form the basis of a reliable identification. That was not, however, the approach adopted by the experienced defence counsel in this case. Given the nature and extent of the actual cross-examination, the trial judge was correct when he took the view that the real issue in the trial was the quality of the identification evidence given by the witnesses rather than the quality of the video recording itself. That being so, we are satisfied that, had he applied his mind exclusively to this factor - which would have been relevant to his decision on the jury's request - he would have been fully entitled to refuse the request. In the circumstances there was no miscarriage of justice. We shall accordingly refuse the appeal.