Lord Justice General
Appeal No: C175/98
HIGH COURT OF JUSTICIARY
OPINION OF THE COURT
delivered by LORD COULSFIELD
HER MAJESTY'S ADVOCATE
Appellant: Scott; Lavery Smith, Glasgow
Respondent: Bell, Q.C., A.D.; Crown Agent
18 March 1999
The appellant was charged, along with three co-accused, with an assault on John Mackie to his severe injury on 2 May 1997. On 17 February 1998, the appellant and two of the co-accused were convicted and one was acquitted. The appellant was found guilty by a majority whereas the verdicts in the case of the two co-accused were unanimous. The appellant's note of appeal proceeded, originally, on two grounds. The first related to the quality of the evidence against him but leave to appeal in respect of that ground was not granted. The second ground of appeal was in the following terms:
"The sheriff failed, in the light of the foregoing evidence, to give adequate directions as to the care to be taken in scrutinising eye witness evidence of identification".
There was a substantial amount of evidence about the circumstances of the assault on John Mackie. There was evidence that Mackie was assaulted by a number of persons, one of whom was described as using a pole. It was contended on behalf of some of the accused that it had not been proved that there was any assault at all and a question of self-defence was also raised. So far as the present appellant is concerned, however, the issue at the trial related to identification. The appellant lodged a special defence of alibi, the effect of which was that, although he was in the vicinity at the time of the assault, he was not involved in it.
The appellant was identified by two witnesses as taking part in the assault. The first of these was Roseanne Mackie, aged 15, a daughter of the complainer John Mackie. A transcript of her evidence was available and it is evident from the transcript that she identified the appellant as one of the assailants and, indeed, as having had a pole or similar instrument which he used in the assault. She was cross-examined in relation to the reliability of her identification. She accepted in the course of cross-examination that the event had occurred at night under orange street lighting which could make observation difficult. She accepted also that the event had occurred very quickly and that, as her father had been the victim, it was distressing to her. She also agreed that she had only seen the appellant from the waist upwards because he was on the other side of a wall which was about one metre in height, and that she was not sure of the clothes that the appellant was wearing, she explained that she was not paying attention to his clothes. She was asked about the possibility of an error and said that she thought she had seen the appellant there and then added that she was sure that she saw him there.
Roseanne Mackie picked out the appellant and other accused at an identification parade. She was asked about her knowledge of the accused and said that one of them, not the appellant, had been in her year at school but the others had not been at the same school or, if they had, they had been years away from her. She said, however, that she knew all of them from being about the streets and that she had seen them hanging around together. In cross-examination on behalf of the appellant she was asked, first of all whether she found the incident distressing and secondly whether it occurred quickly under the orange lighting. She was asked about her evidence that she knew the appellant and replied "I know him to see him". She was then asked whether she knew him from the area and agreed that she did. The questioner then said "Alright. You said that he was hitting your dad with a pole, is that right?" and she answered in the affirmative. The cross-examination then proceeded to deal with the details of the assault.
The other witness who identified the appellant was named Wright. He too had picked out the appellant at an identity parade and said that he knew the appellant's face from the locality. Wright agreed in his evidence that he had been out with the complainer Mackie and that he had been drinking from 8 to 11 p.m. but he denied that his recall had been affected by drink and said that he was used to drinking.
In his charge to the jury, the sheriff, at an early stage, directed the jury generally as to the distinction between credibility and reliability of witnesses and pointed out that it was for them to judge such matters. He pointed out that even honest witnesses could make mistakes and that the jury should bear that in mind. He then said:
"You will take into account the circumstances which surround the giving of evidence. You will take into account the age of persons concerned and their bearing and demeanour before you. You will take into account their state of nervousness on the day of giving evidence and their state of nervousness or apprehension or even fear or upset or drink on the occasion that they are describing. So all of these are issues that you have to consider when assessing credibility and reliability".
The sheriff did not make any specific reference in the course of his charge to identification evidence. In his report, he refers to the passage in the charge which we have just quoted and continues:
"I think that that is pertinent in this particular case and I did not go further because this was not the type of case where an eye witness had a fleeting glimpse of an assailant who was not previously known. In this particular case, the witness Roseanne Mackie knew Kevin Keavney from the locality and from school and had seen him many times over several years. The witness Graham Wright identified him clearly and had earlier identified him at an identification parade. Accordingly it did not seem to me that it was necessary to go further in relation to identification in this case, especially in view of the defence evidence putting the appellant in the general area also".
The submission on behalf of the appellant was that the sheriff had erred in failing to give to the jury the sort of direction in relation to the reliability of eye witness evidence of identification which is desiderated in cases such as McAvoy v. H.M. Advocate 1991 S.C.C.R. 123 and Webb v. H.M. Advocate 1996 S.C.C.R. 530. It was submitted that this was a case which depended upon eyewitness evidence of identification and that identification was disputed, the appellant maintaining, in terms of his defence of alibi, that he had not been involved in the incident. It was further submitted that the sort of circumstances which were referred to in particular in Webb supra as requiring a specific direction as to the reliability of eyewitness evidence of identification were present in this case also. The incident had occurred very quickly, the conditions had not been good for witnesses to see what had been happening, one of the witnesses was affected by drink; and the event was of a kind which would cause upset to the witnesses. Miss Scott, who appeared for the appellant, accepted that there might be cases in which the sort of direction envisaged in McAvoy and Webb was not necessary, for example where the person identified was very well-known to the witness, and that to that extent the matter of giving or not giving such a direction was one for the discretion of the judge. She submitted, however, that it was plain in this case that the direction should have been given. She also pointed out that in his report the sheriff appeared to have misunderstood the position as regards the witness Roseanne Mackie having been at school with the appellant and overstated the extent of her knowledge of him.
It has been clear since the decision in McAvoy and the practice note there referred to that where identification is in issue the judge must consider whether a direction as to the reliability of identification evidence is required. In McAvoy itself a very brief direction was given and that was accepted as sufficient in the circumstances of the case. In Webb no direction at all was given and it was held that was a fatal defect in the charge. Both authorities, however, recognise, as counsel for the appellant also recognised, that there is room for the exercise of discretion by the trial judge. The circumstances of Webb were very far removed from those of the present case. There were two witnesses in Webb who purported to identify the accused but one of them had only the briefest knowledge of the accused and the other had no previous knowledge of him at all, before the alleged sighting. That witness also acknowledged that she was very drunk. Further, both witnesses purported to identify the accused as involved in the incident in question from a distance of about 60 yards, in darkness. In the present case, both witnesses were relatively close to the incident and both knew the appellant by sight. We do not have the transcript of the evidence of Wright but there is nothing to indicate that his claim to know the accused was challenged. In the case of Roseanne Mackie, it is quite clear that no challenge to her claim to be acquainted with the appellant by sight was pressed.
We do not intend in any way to water down the requirement that a jury should, where appropriate, be cautioned about the reliability of identification evidence. This was a case in which the sheriff gave the direction as to the credibility and reliability of witnesses which we have quoted and exercised his discretion, in the light of the evidence which he had heard, not to give any further direction. Having regard to all the circumstances and in particular the fact that the witnesses knew the appellant by sight, we have come to the conclusion that the directions on identification were adequate. For these reasons the appeal is refused.