"(2) On various occasions between 1 January 1961 and 10 June 1966, both dates inclusive, at Gartmore House (then known as St Ninian's List D School), Gartmore Estate, Stirlingshire, you Michael John Murphy (then known as Brother Benedict) did assault A, born 11 June 1951 ... then a boy under your charge, strike him repeatedly on his legs with knotted leather laces, forcibly feed him, force him to eat his own vomit and compel him to take hold of metal rods connected to an electricity generating device which you activated to deliver electric shocks to said A all to his injury;

(3) on various occasions between 1 January 1960 and 31 December 1963 ... at Gartmore House ..., you ... did assault B, born 11 January 1953 ... then a boy under your charge and under the age of 14 years, slap him on the face and strike him repeatedly on the face with knotted leather laces;

(5) on various occasions between 28 November 1961 and 31 December 1961 ... at Gartmore House ..., you ... did assault C, born 28 November 1951 ... then a boy under your charge and under the age of 14 years, repeatedly punch and kick him on the body, forcibly feed him and compel him to eat his own vomit;

(8) on various occasions between 1 January 1963 and 31 December 1964 ... at Gartmore House ..., you ... did assault D, born 30 August 1952 ... then a boy under your charge and under the age of 14 years, seize him by the neck and thrust his face against a wall, seize him by his private parts and compress them;

(9) on various occasions between 7 June 1963 and 31 December 1964 ... at Gartmore House ..., you ... did assault E, born 15 September 1953 ... then a boy under your charge and under the age of 14 years and drag him bodily from his bed, pull him along corridors and compel him to take a cold shower, forcibly feed him with sago and compel him to eat his own vomit, repeatedly punch and kick him on the body and strike him with knotted leather or rubber laces all to his injury;

(11) on an occasion between 28 June 1963 and 31 December 1965 ... at Gartmore House ..., you ... did assault F, born 14 March 1951 ... then a boy under your charge, seize hold of him and throw him to the floor, kneel on top of him and repeatedly punch him on the head and body, drag him to an adjacent room and compel him to take hold of metal rods in each hand and by use of an electricity generating device you did thereafter apply an electric current to these rods and by these means did inflict shock and injury to said F;

(12) on an occasion between 28 June 1963 and 31 December 1965 ... at Gartmore House ..., you ... did assault F, born 14 March 1951 ... then a boy under your charge, and repeatedly strike him on the legs with knotted leather laces or similar instruments to his injury;

(13) on various occasions between 1 January 1964 and 31 December 1965 ... at Gartmore House ..., you ... did assault G, born 27 March 1953 ... then a boy under your charge and under the age of 14 years and did induce him to pick up a tin box or touch a door handle or lengths of pipe to which you had attached an electricity generating device which you activated to cause electric shocks to said G all to his injury;

(14) on various occasions between 1 January 1966 and 31 December 1969 ... at Gartmore House ..., you ... did assault H, born 2 February 1956 ... then a boy under your charge and under the age of 14 years and repeatedly strike him on the body with a length of wood or similar instrument;

(16) on an occasion between 1 April 1968 and 30 September 1969 ... at Gartmore House ..., you ... did assault I, born 3 May 1957 ... then a boy under your charge and under the age of 14 years and seize him by the arm, spin him bodily and throw him to the floor whereby said James Agnew sustained a broken arm to his injury.

"Further and in any event, the appellant did not receive a fair trial within the meaning of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms as a result of the delays hereinbefore referred to. Reference is made to the Devolution Minutes presented to the Court at said preliminary diet."

We were informed that the further document 1A can now be ignored, as superseded by other formulations of grounds. Furthermore, we were informed that document 1C was not to be insisted in. It is therefore in document 1B that the grounds of appeal argued before us are to be found, for the most part. Certain parts of that document, however, contain grounds in respect of which leave to appeal was not granted. The grounds of appeal pertinent to the present appeal are therefore as follows:

"1 IDENTIFICATION

The appellant was convicted of ten charges involving nine different complainers all of whom were children when the alleged offences were committed. The charges concern events which occurred between 1961 and 1969. Only four of the nine complainers identified the appellant in court as the perpetrator of the assaults of them ('dock identification'). Of the other five complainers two wrongly identified the co-accused of the appellant as the perpetrator of the offences with which the appellant was charged. The rest purported to identify the appellant by his religious name (Brother Benedict) or a nickname ('Bootsie'). ... In the early stages of the trial the Crown sought (unsuccessfully in two cases) dock identifications from complainers. Thereafter the Crown confined itself to seeking identifications by name or description with evidence from other witnesses to the effect that the appellant had the name or nickname used by the complainers. Once it embarked on that course the Crown did not attempt to obtain dock identifications from the complainers. In the circumstances (a) the learned trial judge erred in respect that he rejected a no case to answer submission on charges (5), (8), (11), (12), (13) and (14). (b) The learned trial judge misdirected the jury to the extent that and in so far as: (1) he directed them (page 50 of his charge) that identification by name or 'by describing his position at a particular time' was a competent method of identification equivalent to or better than dock identification, (2) by failing to draw to the jurors' attention that the Crown had not resorted to this form of identification until there had been several unsuccessful attempts at dock identification; (3) by failing to draw to the jurors' attention that the Crown had not even attempted to obtain dock identifications from several complainers; (4) for failing to draw to the jurors' attention that several of the complainers did not preface their purported identifications by name or description with evidence to the effect that their inability to make dock identification was due to the passage of time; ... (6) by failing to direct the jurors that for those charges involving complainers who did not make dock identifications there was insufficient evidence to convict; (7) alternatively for failing to direct the jurors that special care had to be exercised in considering identification by name or description; (8) for failing to direct the jurors that, there being an insufficiency of evidence in charges involving identification by name or by description, those charges fell to be left out of account in their consideration of the course of conduct alleged by the Crown against the appellant.

2 OPPRESSION (Reference is made to the original Grounds of Appeal)

The learned trial judge misdirected the jury in so far as he failed to give them adequate directions about prejudice to the appellant as a result of the absence or loss due to the passage of time of evidence including real evidence and documentary evidence which would, or might, have otherwise have been available to him for use in his defence to the charges libelled. The appellant was or may have been prejudiced by the non-availability of: (1) the 'electricity generating device' referred to in several of the charges. The appellant kept the device for many years after the events libelled. He gave it away on his retirement. The persons to whom he gave it threw it away before the complainers in this case came forward. (2) The evidence from the Matron or Nurse who worked at this school both of whom died before the complainers came forward. (3) Medical and other records in respect of complainers. The loss of this potentially important material as well as founding a plea of oppression at common law, deprived the appellant of a fair trial and thereby contravened his rights under and in terms of Article 6(1) of the European Convention on Human Rights.

3 DEFECTIVE REPRESENTATION

The appellant suffered a miscarriage of justice in respect that: his senior counsel at the trial did not renew the plea of oppression advanced on behalf of the appellant at a pre-trial hearing in front of Lord Bonomy. At that hearing his Lordship refused to uphold the plea of oppression as a plea in bar of trial holding that it was a matter for the trial judge: (a) to consider the plea de novo and to determine whether there was a risk of prejudice which was so great as to deny the appellant a fair trial; (b) whether and if so, in what terms, to direct the jury with a view to safeguarding the appellant from any prejudice arising as a result of the matters raised in the plea of oppression. As a result of that failure by senior counsel the appellant was denied the opportunity to obtain a ruling from the trial judge that the prosecution was oppressive or suitable directions of the sort envisaged by Lord Bonomy. ..."

Conclusions

"Every item of the evidence in a cause is either direct or indirect. By the former term is meant evidence expressly affirmative or negative of the issue. The only question therefore in regard to such evidence is, whether it is to be believed, - that is, whether the document is genuine and its contents true, or whether the witness has accurately observed and remembered, and has truthfully related, the facts to which he speaks. On the other hand, indirect (which includes circumstantial and presumptive) evidence consists of a factum probatum of one kind, from which a different fact, the factum probandum, has to be inferred by a process of reasoning. Consequently, indirect evidence embraces two inquiries, first, - whether there is sufficient proof of the probative facts; and, second, if so, whether the fact in issue is deducible from them by an inference sufficiently strong to found a verdict."

In my view, evidence deployed in a criminal trial to prove the implication of the accused in the commission of the offence in question may fall into one or other of the two categories of evidence described in the foregoing paragraph. Evidence by a witness of visual identification of the accused person in the dock as the perpetrator of the crime is direct evidence. However, such evidence of identification may simply be unavailable, or a prosecutor, for good reasons, may decide not to rely upon it and rather to rely upon indirect evidence of identification. Such indirect evidence may take many forms, depending upon the particular circumstances of the case, and, in particular, what evidence is available. Langan v H.M. Advocate, cited by the Advocate depute, is an example of such a case. There the evidence against the accused, who was charged with murder, consisted of the fact that a blood-stained fingerprint which was present on a tap on a sink of the house where the crime was committed was identified as his. The deceased was found in the living room of the house surrounded by blood, and there was evidence that the blood could have remained liquid for some 24 hours after death. The appellant gave evidence in which he denied that he had ever been in the house, but the evidence of the fingerprint experts was not challenged. The court held that, in the absence of any explanation for the presence of the fingerprint, the jury were entitled to hold that it was made by the murderer when cleaning up after the murder. The appeal was refused. Another example of such a case is McGuire v H.M. Advocate, also founded upon by the Advocate depute. There the appellant had been charged with committing a robbery, along with others. He lived in the neighbourhood of the locus and one of the robbers, who discarded a mask at the scene, was recognised by the complainer as a local boy. The complainer gave a description of that person, which was consistent with the appellant's appearance, but stated that none of the robbers were present in court. The evidence against the appellant consisted of the presence of his DNA on the mask, which had been constructed from the sleeve of a woollen jumper. The trial judge repelled a submission of no case to answer and the appellant, who did not give evidence, was convicted and appealed to the High Court. It was held that, given the evidence relative to the mask, including the scientific evidence associating the appellant with it, and the absence of any explanation by him for that association, the trial judge had been entitled to rule as he did and the appeal was dismissed. Thus, in my opinion, it is quite plain that in seeking to establish the implication of an accused person in the commission of a crime, the Crown is at liberty to deploy either direct visual identification of the accused as a person involved in the commission of the crime, or indirect evidence upon the basis of which it can be inferred beyond reasonable doubt that that was so. The kind of evidence which may be used will plainly be determined by what is available and by the exercise of the Crown's discretion as to the evidence upon which it thinks fit to rely. Both of these kinds of evidence are primary and not secondary or substitutionary and are therefore admissible.

"We have already treated of evidence as divided into direct and indirect; and we have seen that indirect evidence is not necessarily substitutionary in its character. It is rather a method of proving that which otherwise might not be provable at all; and, consequently, to adduce indirect evidence is in no degree to infringe upon the one primary rule of evidence, - the rule, namely, that a party must adduce the best attainable evidence of the facts he means to prove. ... The rule is chiefly directed against the admission of copies or parole of the contents of documents and of hearsay evidence; these all inferring the existence of more original proof of the facts which they set forth."

In paragraph 196, the learned author continues:

"This rule does not make it imperative on a party to bring forward the most convincing of all his attainable means of proof; it only requires him to adduce evidence, which in its own character is primary and not substitutionary."

In paragraph 199, the learned author deals with the relationship between circumstantial proof and the evidence of an eye-witness to fact. He there says this:

"On this principle also circumstantial proof is not rendered inadmissible by there being an eye-witness to the fact who has not been examined. But this unexplained absence will be a matter for the jury to consider in weighing the proof adduced."

It seems to me that these last two passages are inconsistent with the rule contended for by the appellant in this case.

"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. . . . Where the question is a direct one of identity, it is by no means necessary that two witnesses should speak to that fact explicitly. Frequently one witness swears directly to the man, and another says he resembles him, but he cannot swear he is the same. Certainly this, along with some other circumstance, as vicinity to the spot, finding the stolen goods upon him or the like, is sufficient proof of identity. In estimating the comparative weight due to the two 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 event 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 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; . . .".

"I should just like to say upon the other question - the question of identification - that it appears from the notes of evidence that no attempt was made by the prosecutor to get the appellant directly identified by Crown witnesses. A number of witnesses who were asked to speak to certain facts in connection with the indictment spoke of 'the accused, James Bruce', and I am not prepared to say that, upon the evidence led for the Crown, there was not, at least, sufficient to imply the identification of the appellant. But I am very clearly of opinion that identification of an accused is not a matter which ought to be left to implication. The proper practice is to have the accused identified directly by persons who are speaking to facts which are material to the charge which is under investigation."

At page 96 the Lord Justice Clerk spoke on the same matter:

"I desire to add only one word on the question of identification. I think there was no proper identification in this case. The kind of evidence of identification that was led, is that given by the witness who says 'I spoke to the accused, James Bruce'. Now that is not the identification required in a criminal case. The witness should have been asked directly whether the accused was the man to whom he was referring, and there should have been an express identification in Court. The proper identification of an accused person in a case of this kind is obviously essential and should not be left to implication, and it will not do to have one rule in one kind of case and another rule in another kind of case."

"But the identification of the appellant J. L. Stewart as the Councillor J. L. Stewart in question was not left to implication for the appellant was directly identified as such by the witnesses Rennie and Matheson and also by a witness Patterson ... We are satisfied that the appellant Stewart was properly and sufficiently identified and that this ground of appeal falls to be rejected."

In my view there is nothing in that case which supports the attempt made by senior counsel for the appellant to erect what was said in Bruce v H.M. Advocate into the source of a rule such as he sought to justify. Likewise, having considered what was said by the sheriff and the court in Reekie v Smith, I can discern nothing there which supports the existence of such a rule.

"This case has occasioned some concern, because it is difficult to understand why the Crown did not comply with the general rule laid down in Bruce v H.M. Advocate. ... As the Lord Justice General said in Stewart v H.M. Advocate, the general rule of practice laid down in Bruce should be followed in all criminal trials in which the Crown sets out to prove first that that a crime has been committed and second that a particular accused was the perpetrator."

In relation to that passage I feel bound to say that the rule of practice referred to is, in my opinion, stated too widely. The fact is that in all criminal trials of whatever nature the Crown "sets out to prove first that a crime has been committed and second that a particular accused was the perpetrator." Plainly, in Bruce v H.M. Advocate the court was only concerned with the kind of case in which the Crown sought to lead evidence of visual identification in court, yet, the Lord Justice Clerk, in this passage, seems to say that there was some rule, vouched by the decision in Bruce v H.M. Advocate, which applied to all criminal prosecutions. In my view, that position is plainly unsound.

"There may, of course, be cases where a complainer for some reason is unable or unwilling to identify the accused as the perpetrator, and in such cases the Crown may require to rely upon other evidence for identification of the accused as the perpetrator."

That observation, in my respectful opinion, appears wholly unexceptionable, but what follows is not. The Lord Justice Clerk continues:

"But where the complainer is able to identify the accused as the perpetrator, he or she should be asked to do so in court. That must be the best evidence that the accused was in fact the perpetrator of the crime spoken to by the complainer."

In my opinion, there are several problems concerning this passage. The first is that, it appears to me, the court would never be able to say whether a complainer is able to identify an accused as the perpetrator, if the prosecutor decides not to attempt to elicit such evidence. However, the last sentence of the passage quoted I consider demonstrates confusion. There is reference to "the best evidence that the accused was in fact the perpetrator of the crime". If this observation is intended to be a reference of some kind to the best evidence rule, as properly understood, then, in my opinion, it is unsound. As I have sought to show, the best evidence rule is related to the distinction between primary and secondary evidence and is not intended to distinguish between one kind of primary evidence and another. Furthermore, his Lordship's latter observation appears to me to fly in the face of the reservations expressed by Alison and reiterated in Holland v H.M. Advocate concerning the quality of evidence of visual identification in court, as opposed to evidence of visual identification at an earlier stage, or other evidence of identification.

Ground of Appeal 2 - Oppression

"I am confident that the jury can be properly directed to avoid any risk of prejudice from the way in which the case was investigated by the press and solicitors and the publication of a photograph. It is inevitable the jury will be directed to exercise caution in evaluating evidence of identification in this case, particularly eye witness identification. It is impossible at this stage to evaluate the strength of that evidence. That can only be done once it has been heard."

In relation to the matter of what might be described as evidence lost on account of the passage of time, having rejected the suggestion that it would be oppressive to proceed to trial because there was now less material available than there would have been at an earlier date, in paragraph 45, Lord Bonomy said this:

"While it is possible to say that certain records must have existed at some time e.g. the formal records that had to be kept by the school, medical records of any complainer sustaining injury, and court and social work records relating to the circumstances in which boys were sent to St Ninian's, it could only be on the basis of speculation that I could conclude that in relation to any complainer there might be some record that would shed light on whether any allegation is true or not."

Finally, in paragraph 46 of his Opinion, Lord Bonomy said this:

"I have also considered whether the cumulative effects of the various points on which Mr Watson relied might be to create such prejudice as would make it oppressive to proceed to trial. Having done so, I remain satisfied that it will be possible at trial to direct the jury adequately to avoid any risk of prejudice."

Act: Clancy, Q.C., Shead; McSparran & McCormick, Glasgow.

Alt: Prentice, A.D.; Crown Agent.

9 October 2007

Introduction

Ground of Appeal 1(a)

The Trial Judge's view of Ground of Appeal 1(a)

"The absence of dock identification is relatively simply explained by the passage of time and the ageing of the appellant. However, in all cases, each complainer identified his assailant by name as Brother Benedict. There was ample proof that the appellant was Brother Benedict. Given that the complainers were pupils at the school [mentioned in the libel] and can be assumed to have known the names of their masters, notably those of the Brothers, their ability to name the assailant coupled with proof that the particular name attached to the appellant provided sufficient evidence of identification of the complainers in each case. Furthermore, the various descriptions of Brother Benedict (e.g. his glasses, cassock and Irish accent), where he might be found (e.g. the dining room) and what he might be doing (e.g. the laces and the electronics [aspects of several of the charges]) all provided ample evidence that each complainer was talking about the appellant. It was never, quite rightly, put to any of the witnesses that the Brother Benedict they spoke about was not the appellant. There was no need for the Crown to obtain a dock identification in every (or perhaps any) case. Each complainer could identify the assailant by name and the person named, whom they knew, was proved to be the appellant."

"A number of witnesses who were asked to speak to certain facts in connection with the indictment spoke of 'the accused James Bruce', and I am not prepared to say that, upon the evidence led by the Crown, there was not, at least, sufficient to imply the identification of the appellant. But I am very clearly of opinion that identification of an accused is not a matter which ought to be left to implication. The proper practice is to have the accused identified directly by persons who are speaking to facts which are material to the charge which is under investigation. ... I think that, as a matter of practice, the identification of the accused by witnesses who are speaking to the facts should, in every case be a matter of careful and express question on the part of the prosecutor. In this case that was not done."

It is to be noted that Lord Wark twice in the passage quoted puts the point as a matter of proper practice. Lord Justice Clerk Aitchison, at 96, said:

"I think there was no proper identification in this case. The kind of evidence of identification that was led is that given by the witness who says 'I spoke to the accused James Bruce.' Now that is not the identification required in a criminal case. The witness should have been asked directly whether the accused was the man to whom he was referring, and there should have been an express identification in Court. The proper identification of an accused person in a case of this kind is obviously essential and should not be left to implication".

"... the evidence only amounts to the fact that a Mrs Jessie Wright Stevenson Wilson was the licence holder. Neither of the witnesses identified the Mrs Wilson who was present [in court] as being such. I am therefore of opinion that the Sheriff-substitute was not justified in coming to the conclusion that the appellant was the licence holder or carried on business at the hotel."

As Lord Mackay had pointed out earlier (at 92):

"There might be fifty Mrs Wilsons in Kilmarnock".

"Without wishing to cast any doubt on the general rule of practice to be found in the cases of Bruce and Wilson we would emphasise that it is merely a general rule which will be applicable to most criminal trials. It will be applicable in particular in all criminal trials in which the Crown sets out to prove, first, that a crime has been committed and, second, that a particular accused person was the perpetrator. In this case the circumstances were, however, special, for the only question for the jury was whether in the course of close association between the key witnesses Matthews and Maunder and the well-known public figure, the Councillor J. L. Stewart, that councillor had corruptly solicited rewards and advantages. In our opinion in the evidence of the key witnesses and of the other witnesses to whom counsel for the appellant Stewart referred the identification of the appellant J. L. Stewart was clearly implied, and in the circumstances of this case that was quite sufficient. But the identification of the appellant J. L. Stewart as the Councillor J. L. Stewart in question was not left to implication for the appellant was directly identified as such by [certain witnesses]. According to the notes of evidence the appellant was pointed out by these witnesses. In the absence of cross-examination of these witnesses and in the circumstances that the identification of the appellant Stewart as the well-known Councillor J. L. Stewart was not a live issue throughout the trial we are satisfied that the appellant Stewart was properly and sufficiently identified."

"As the sheriff points out, the whole difficulty could have been avoided if the procurator fiscal depute had followed the proper practice of having the accused identified specifically by each witness. When P.C. Wilson indicated that he might be wrong about one of the three persons in the dock, he indicated that his uncertainty related to the accused called [W], but it is not clear that he knew the names of the individual men in the dock and thus it is not clear that he was in fact referring to the accused called [W]. He might have been referring to the appellant under the mistaken belief that he was called [W]. In these circumstances we have come to be of opinion that there was insufficient evidence to entitle the sheriff to make [the finding that the appellant was one of the two persons involved in assisting the escape]."

"Counsel [for the appellant] submitted that the rule laid down in Bruce v H. M. Advocate was a rule of law applicable to all cases. That, however, appears to be incorrect, because as the Lord Justice General pointed out in Stewart v H. M. Advocate it is a general rule of practice, not a rule of law."

At 947L, Lord Ross said that it was difficult to understand why the Crown did not comply with the general rule laid down in Bruce. At 948B he continued:

"As the Lord Justice General said in Stewart v H. M. Advocate, the general rule of practice laid down in Bruce should be followed in all criminal trials in which the Crown sets out to prove first that a crime has been committed and second that a particular accused was the perpetrator. There may, of course, be cases where a complainer for some reason is unwilling or unable to identify the accused as the perpetrator, and in such cases the Crown may require to rely on other evidence for identification of the accused as the perpetrator. But where the complainer is able to identify the accused as the perpetrator, he or she should be asked to do so in court. That must be the best evidence that the accused was in fact the perpetrator of the crime spoken to by the complainer."

Despite those observations, Lord Ross went on to consider whether the evidence led by the Crown was sufficient. Having analysed the evidence of the complainers and their parents summarised above, Lord Ross concluded (at 948G) that the jury were entitled to infer on that basis that the appellant had been identified beyond reasonable doubt as the perpetrator, but emphasised that the court regarded the case as a special one because of the amount of circumstantial detail to which the parents were able to speak. He then reiterated that the general rule in Bruce should be followed in all cases of the sort identified by Lord Justice General Emslie in Stewart.

"I accept the submission of counsel for the appellant that Scots law has a long standing preference for identification made de recenti over that made ex intervallo ... But it does not follow that evidence of an identification at a parade is always preferable to an identification made in court; or that a failure to identify at a parade invalidates an identification made in court. It is the long established practice of the Scottish courts to require that an identification of the accused should be made in open court. In Bruce v H. M. Advocate, the court held that identification of the accused at a trial should not be left to implication. The Crown should seek express identification of the accused by the witness (cf Stewart v H. M. Advocate, Lord Justice General Emslie at 1980 SLT, p 251; Reekie v Smith, Lord Justice Clerk Ross at 1987 SCCR, p 455). Where the complainer can identify the accused as the perpetrator of the crime to which he speaks, identification in court by the complainer is regarded as being the best evidence on the point (Robson v H. M. Advocate, Lord Justice Clerk Ross at 1996 SLT, p 948; 1996 SCCR, p 345B)."

At paragraph [28], Lord Gill added:

"The general rule and the practice of asking witnesses to confirm that the person in the dock, or which of them if more than one, is the person to whom they are referring go hand in hand. It would not be possible to abandon the practice without departing from the rule too."

The Crown submissions

"§ 63. Every item of evidence in a cause is either direct or indirect. By the former is meant evidence expressly affirmative or negative of the issue. The only question therefore in regard to such evidence is, whether it is to be believed, ― that is, whether the document is genuine and its contents true, or whether the witness has accurately observed and remembered, and has truthfully related, the facts to which he speaks. On the other hand, indirect (which includes circumstantial and presumptive) evidence consists of a factum probatum of one kind, from which a different fact, the factum probandum, has to be inferred by a process of reasoning. Consequently, indirect evidence embraces two inquiries, ― first, whether there is sufficient proof of the probative facts; and, second, if so, whether the fact in issue is deducible from them by an inference sufficiently strong to found a verdict."

"§ 195. We have already treated of evidence as divided into direct and indirect; and we have seen that indirect evidence is not necessarily substitutionary in its character. It is rather a method of proving that which otherwise might not be provable at all; and, consequently, to adduce indirect evidence is in no degree to infringe upon the one primary rule of evidence, ― the rule, namely, that a party must adduce the best attainable evidence of the facts he means to prove. This rule is founded on the presumption, that one who tenders the less trustworthy of two kinds of proof within his reach, does so in order to produce an impression which the better proof would not create; for, if they would lead to the same result, he would probably not select the less convincing of them. The rule is also designed for preventing trials from being burdened with unnecessary investigations into the authenticity of secondary proofs; by which the time of the judge and jury would be wasted and their attention might be diverted from the real points in issue. The rule is thus directed to the specific character, not the strength or amount of the proof. It excludes evidence, the substitutional nature of which implies that more original evidence can be obtained. ... The rule is chiefly directed against the admission of copies or parole of the contents of documents and of hearsay evidence; these all inferring the existence of more original proof of the facts which they set forth. ...

§ 196. This rule does not make it imperative on a party to bring forward the most convincing of all attainable means of proof; it only requires him to adduce evidence, which in its own character is primary and is not substitutionary."

As an example of indirect evidence of identification, not excluded by the best evidence rule, the Advocate depute cited Maguire v H. M. Advocate 2003 SLT 1307, SCCR 759, in which the inference that an accused was one of the perpetrators of a robbery was based on evidence of material containing his DNA being found on a mask which other evidence showed he had discarded at the scene of the robbery.

"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 prisoner may have been changed, or the strength of their own recollection diminished."

Discussion

"In this case, the circumstances were, however, special, for the only question for the jury was whether in the course of close association between the key witnesses Matthews and Maunder and the well-known public figure, the Councillor J. L. Stewart, that councillor had corruptly solicited rewards and advantages. In our opinion in the evidence of the key witnesses and of the other witnesses to whom counsel for the appellant Stewart referred the identification of the appellant J. L. Stewart was clearly implied, and in the circumstances of this case that was quite sufficient."

It seems to me that Lord Emslie had by that stage of the opinion passed from dealing with the general rule of practice derived from Bruce bearing on the desirability of seeking dock identification and avoiding leaving identification to implication, to the issue of law as to whether identification by implication could in some circumstances nevertheless be sufficient. He held that it could be, and in the circumstances of the case was. The result is that whether evidence which leaves the identification of the accused present in court as the perpetrator of the crime to implication is sufficient is a matter of circumstance. It will depend on what is truly in issue in the case and on the strength, clarity and cogency of the implication contained in the evidence. In the circumstances of Bruce and Wilson, the implication was held not to be sufficient. In the "special circumstances" of Stewart, it was held to be sufficient.

"where a complainer for some reason is unable or unwilling to identify the accused as the perpetrator, and in such cases the Crown may require to rely upon other evidence for the identification of the accused as perpetrator."

It is, in my view, important to note that Lord Ross did not expressly suggest that in such a situation the unwillingness or inability of the complainer to make an identification had to be elicited from him or her in evidence in order to render admissible other evidence identifying the accused as the perpetrator. No such question was asked of the younger complainer in that case, yet the court went on to consider whether the evidence of the complainers' parents established that the person mentioned by the children was the accused. Their evidence was clearly regarded as admissible, without its having been set up in her evidence that the younger complainer was unwilling or unable to make a dock identification.

"But where the complainer is able to identify the accused as the perpetrator, he or she should be asked to do so in court. That must be the best evidence that the accused was in fact the perpetrator of the crime spoken to by the complainer."

The first of these two sentences might be construed as no more than a reiteration of the general rule of practice that a complainer who speaks to the commission of the crime ought to be asked to make a dock identification of the accused as the perpetrator. If so construed, failure to ask such a question would have no bearing on the admissibility of evidence identifying the accused as the perpetrator by other means. The reference to "best evidence" in the second sentence is, however, more problematical. If the reference is to the rule of evidence rendering inadmissible evidence which is not best evidence unless there is an acceptable explanation for the unavailability of the best evidence, it would, if sound, require the leading of evidence that dock identification was not available in order to establish the admissibility of other evidence, not being best evidence, which might establish that the accused was the perpetrator. Undoubtedly, dock identification of the accused as the perpetrator is "best evidence". It does not, however, follow that all other evidence tending to establish that the accused was the perpetrator of the crime is not "best evidence". In Robson, the evidence of the complainers' parents that the accused was known to them and to the complainers as "Mike" and was the night-watchman at a nearby site, and was the person to whom the complainers referred when they spoke of "Mike", was indirect evidence from which the identity of the accused as the perpetrator might legitimately be inferred, but it was not secondary or substitutionary evidence, in the way that parole evidence of the contents of a document or hearsay evidence is substitutionary. It is only such secondary or substitutionary evidence which, in the absence of explanation of the unavailability of the primary evidence, is excluded by the best evidence rule; indirect evidence which is not substitutionary in character is not so excluded (Dickson on Evidence, §§ 63, 195 and 196). While, therefore, I accept Lord Ross's identification of dock identification as best evidence, it is not in my opinion the best evidence in the sense that all other evidence identifying the accused as the perpetrator is excluded by the best evidence rule. Evidence such as the evidence of the parents in Robson is admissible as indirect yet primary evidence from which an inference may legitimately be drawn that the evidence of the complainers is evidence about the accused. I am inclined to suppose that Lord Ross must have accepted some such analysis as I have set out, because despite his reference to dock identification of the accused as the perpetrator being the best evidence, and the absence of any evidence explaining why the younger child had not been asked to make a dock identification, he did not rule the parents' evidence inadmissible. (Nothing, in my view, is added to this point by the passing adoption of Lord Ross's reference to best evidence by Lord Justice Clerk Gill in Holland at paragraph [27]).

"Having regard to the circumstantial detail to which the parents of the complainers were able to speak, we have come to the conclusion that their evidence was sufficient to enable the jury to draw the inference that the appellant was the man whom the complainers described as having committed the crimes against them."

It was that amount of circumstantial detail that was identified as rendering the case a "special one" (948G). It seems to me, therefore, that despite the reference to "special circumstances" in Stewart and a "special case" in Robson, the question is not whether one or other of these (inherently vague) phrases is applicable, but rather whether the evidence relied upon is sufficient to entitle the jury to draw the inference that the accused in the dock was the person spoken of in evidence as the perpetrator.

(1) There is a long recognised general rule of practice that a witness who speaks to the commission of a crime should be asked to make a dock identification. The reason for that practice is that if a dock identification is made that will contribute to a sufficiency of evidence that the accused was the perpetrator of the crime. If dock identification is omitted, the opportunity to obtain a sufficiency of evidence in that way is lost. The result of such omission may thus be that there is insufficient evidence identifying the accused as the perpetrator. Such was the result in Bruce, Wilson and Reekie.

(2) That general rule of practice is no more than that; it is not a rule of law (Stewart, per Lord Justice General Emslie at 251, col. 2; Robson, per Lord Justice Clerk Ross at 947F). It follows that failure to follow the general rule does not affect the admissibility of other evidence tending to establish that the accused was the perpetrator of the crime. There is no warrant for the proposition that if the complainer is not asked to make a dock identification, and does not give evidence of unwillingness or inability to do so, other evidence tending to identify the accused as the perpetrator is inadmissible.

(3) While dock identification of the accused as the perpetrator by the complainer who speaks to the commission of the crime is best evidence that the accused was the perpetrator of that crime, it does not follow that other evidence yielding the inference that the accused was the perpetrator is inadmissible as contrary to the best evidence rule. Evidence of the sort given by the parents in Robson is indirect, but not substitutionary, and thus does not offend against the best evidence rule. There is therefore no requirement, on that account, for evidence explaining why dock identification has not been made, before such other evidence tending to establish the identity of the accused as the perpetrator can be admitted. The result in Robson clearly illustrates this point.

(4) The question comes to be whether other admissible evidence on the question of identification is sufficient to entitle the jury to draw the inference that the accused was the person whom the complainers described as committing the crimes against them (Robson at 948D).

(5) In assessing the significance to attach to the fact that a witness has not made a dock identification, the jury is entitled to bear in mind, as matters of common human experience, without having heard evidence on the points, that a person's appearance tends to change with the passage of time, and that likewise the clarity and reliability of a person's recollection may diminish with the passage of time. These points are particularly obvious when the passage of time is of the order of forty years. The same applies when the jury has to weigh inconsistent passages of evidence in a complainer's evidence, in one of which he makes a dock identification of a person other than the accused in question as the perpetrator, and in the other of which he attributes the criminal behaviour to a named person who is proved by other evidence to have been the accused. In that situation too, in my opinion, the jury is entitled to bear in mind the aspects of human experience just mentioned. It is open to them to reject as mistaken the dock identification, and accept the attribution of the criminal conduct to the named person otherwise identified as the accused. While a failure to seek dock identification, or a failure to challenge an "erroneous" dock identification, may be the subject of comment by defence counsel, neither of these failures bars reliance on other evidence tending to identify the accused as the perpetrator.

The other grounds of appeal

Act: Clancy, QC, Shead; McSparran & McCormick, Glasgow

Alt: Prentice, AD; Crown Agent

9 October 2007

"I desire to add only one word on the question of identification. I think there was no proper identification in this case. The kind of evidence of identification that was led is that given by the witness who says 'I spoke to the accused James Bruce'. Now, that is not the identification required in a criminal case. The witness should have been asked directly whether the accused was the man to whom he was referring, and there should have been an express identification in court. The proper identification of an accused person in a case of this kind is obviously essential and should not be left to implication, and it will not do to have one rule in one kind of case and another rule in another kind of case."

"Where the complainer can identify the accused as the perpetrator of the crime to which he speaks, identification in court by the complainer is regarded as the best evidence on the point."

Moreover, when that case went to the Privy Council [2005 S.C. (P.C.) 3] Lord Hope of Craighead staunchly defended the Scottish method of dock identification which he was at pains to describe as reflecting both a practice and a rule.