Act: Shead, McKenzie; Kelly & Co., Glasgow

Alt: G Mitchell, A.D.; Crown Agent

18 November 2008

Introduction

[1] The appellant was indicted in the High Court at Edinburgh on a charge alleging that on 8 January 2003, while acting with unknown individuals, he committed an assault and robbery at commercial premises in Glasgow, which involved the use of a knife and resultant injury to an employee.

[2] At a hearing on Friday 20 June 2003 Lord Carloway considered a minute of postponement, lodged by the appellant following a change of agency on 16 May 2003. The trial was then scheduled to commence on Monday 23 June. The appellant's solicitor advocate explained that video footage from the locus had been viewed and that legal aid sanction was being sought for an expert to enhance it, who might also express an opinion about whether it showed the appellant. The minute was opposed by the Crown. It was refused on the basis that the appellant had been afforded sufficient time to prepare his defence given his earlier knowledge of the video and the still photographs taken from it; he had been shown them at police interview on 11 March 2003 and then told that he had been identified from them.

[9] The first ground of appeal was that the refusal to adjourn the trial diet had materially prejudiced the preparation and presentation of the appellant's defence. Lord Hardie, it was submitted, had been wrong in deeming it incompetent to consider the motion without a material change in circumstances. The appellant's right at common law to a fair trial overall had not been taken into account (cf Anderson v HM Advocate 1996 JC 29). Of itself, this was enough to vitiate his decision. As with decisions in relation to oppression, there was no discretion in securing that right. Whether the refusal had denied the appellant a fair trial could not be determined by reference exclusively to whether the expert report was crucial to his defence. The procedural history of the case and the way in which the trial had proceeded were also relevant (Arshad v HM Advocate [2006] HCJAC 28). This was the first trial diet, the appellant had been remanded in custody and there had been a change of agents. The appellant also relied on his Convention right to a fair trial. The Crown's action in supporting the conviction and in opposing the motion to adjourn was challenged as ultra vires. Mr Shead was unable to assist with what precisely had been said as regards the motion to adjourn. Despite the terms of Lord Hardie's report, he did not understand that a preliminary report had been obtained at that stage: sanction had only been granted for enhancement of the video.

[10] This was not, it was said, presented as a "fresh evidence" appeal in terms of section 106(3)(a) of the 1995 Act. A broader approach was commended. The expert reports raised doubts about the witnesses' expressed "certainty" in identifying the appellant. As they were unavailable, an opportunity to prepare and present a line of defence undermining the witnesses' reliability had been lost. Mr Shead submitted that one could identify a line of authority adopting this approach and focussing on the loss of opportunity to present legitimate lines of cross-examination (Mackenzie v Jinks 1934 J.C. 48; Hogg v Clark 1959 J.C. 7; M (M) (No.2) v HM Advocate 2007 SCCR 159, Lord Johnston at paras [34] and [35] and Lord Eassie at para [42]). It had been applied where, as here, the main issue was the credibility and reliability of witnesses (McClymont v HM Advocate 2006 SCCR 348, Lord Osborne at para [10]). It had also been applied by the Privy Council in non-disclosure cases to assess whether a trial was fair (Holland v HM Advocate 2005 SCCR 417, Lord Rodger of Earlsferry at para 82, discussing Hogg v Clark; Sinclair v HM Advocate 2005 SCCR 446, Lord Hope of Craighead at para 37 and Lord Rodger at para 46). The appellant's position was essentially the same: the opportunity had been lost to cross-examine the police witnesses by putting to them opinion evidence which made a less confident identification than they claimed to be able to make.

[11] Nevertheless, the fresh evidence test, properly applied, would give a similar result. Previously that was seen as an exemplification of a miscarriage of justice. It would be strange if there were a radically different result depending on the test applied. If necessary, the tests could be reconciled (cf Gair v HM Advocate 2006 SCCR 419 at para [39], cited by the Lord Justice Clerk in Fraser v HM Advocate 2008 SCCR 407 at para [197] and in Mason v HM Advocate [2008] HCJAC 29). If that was not possible, the appellant's submissions raised issues about a fair trial and he sought to rely on the line of authority consistent with the broader approach, which included Holland and Sinclair, rather than that relating to fresh evidence (Cameron v HM Advocate 1991 J.C. 251; Megrahi v HM Advocate 2002 JC 99). While there might be issues about the distinction between the jurisdiction of the Privy Council and the High Court (cf Fraser v HM Advocate, Lord Justice Clerk at para [216]), in many instances they were considering the same question: whether there had been an unfair trial. If so, a conviction should be quashed as the right to a fair trial was absolute (DS v HM Advocate 2007 SCCR 222, Lord Hope at para 17; cf R v Forbes [2001] 1 AC 473). Scots common law had also made an association between that right and a miscarriage of justice (Anderson). In the present case, there had been a miscarriage of justice, as the failure to adjourn had undermined the appellant's right to a fair trial.

[12] Grounds 2 and 3 were closely related. Ground 2 concerned the directions about access to the video cassette. The jury would have understood that it could not have access to the video at all. However, the stills used to identify the appellant were taken from it. To assess the credibility and reliability of the witnesses who identified the appellant, the jury were entitled to look at it, although its members could not themselves decide whether they could identify the appellant (Gray v HM Advocate 1999 SCCR 24; Donnelly v HM Advocate 2000 S.C.C.R. 861). That might have been a difficult exercise, but was one which the jury were entitled to undertake. That principle had been followed by the courts, despite earlier authority that the jury were free to make up their own minds as to what a video revealed except in cases where some particular expertise was required (Steele v HM Advocate 1992 S.C.C.R. 30, Lord Justice General Hope at page 33). It flowed from two rationales: members of the jury were not witnesses; and consideration of such issues should normally take place in open court. In fact, no direction had been given about the use which could be made of the video. Similarly, ground 3 was that without being given a direction that its members could not make their own identification, the jury had been given access to the photographic stills. Such a direction was essential. There was a relationship between the grounds: the jury were turned away from looking at legitimate material, yet no directions had been given in relation to the photographs. Where one could not say what effect that was likely to have had, a miscarriage of justice could be identified. The possibility remained that the jury might have approached the matter erroneously (Donnelly, at page 872).

[13] Ground 4 was a claim of defective representation based on counsel's failure to cross-examine DS Miller: he did not know the appellant, yet recognised him straight away from a photograph. While the jury were directed that the Crown had relied on the other officers' identification, overall the charge, particularly certain general directions to which our attention was drawn, did not preclude that of DS Miller being taken into account (cf Fraser v HM Advocate 2008 SCCR 407, Lord Johnston at para [242]). Counsel had provided reasons for the decision not to cross-examine. The first, that he did not want to bore the jury, having cross-examined the other officers, could easily be dismissed. The second was tactical: he did not want to draw the jury's attention to the evidence, which was not relied on by the Crown nor referred to in the judge's charge. That reasoning was flawed as he had no way of knowing that prior to the event. There had been a real possibility that the trial judge might refer to it in his charge. The damage which might have been inflicted by DS Miller's and the other witnesses' identification was indistinguishable. One would expect counsel to cross-examine witnesses in relation to critical matters. Absent legitimate justification, the decision not to do so could be vitiating (Garrow v HM Advocate 2000 S.C.C.R. 772). If a conscious decision had been taken, logically counsel should have asked that the jury be told to disregard DS Miller's evidence following the Crown address. Something needed to be said in fairness to the appellant.

[14] However, defective representation only arose if ground 5 was discounted: it was the duty of the Crown, both at common law and under Article 6(1) of the Convention, to disclose DS Miller's statement. That statement made no mention of his ability to identify the appellant. An opportunity to prepare and present the appellant's defence had been denied. Forewarned, counsel might have investigated any previous relationship between the witness and the appellant. The opportunity to challenge the witness's credibility and reliability had been lost. One didn't know what the result of that would have been, but counsel had to be given the choice (M (M) v HM Advocate). As it happened, it was a "no lose" situation: an uneasy explanation for the discrepancy would be a favourable result, as would an explanation suggesting an omission due to bad police work. While the jury might have objected to such an approach, counsel had already challenged the other officers. Moreover, the focus could have been on the reliability of the witness. At the very least, counsel might have relied on the issue in addressing the jury. Where a legitimate line of cross-examination into a matter which was not incidental had been precluded, a conviction should be quashed (Mackenzie v Jinks; Sinclair etc.). Here, there had been an identification to which the jury might have attached some relevance. The defence position was materially affected.

Submissions on behalf of the Crown

[15] The Advocate depute submitted that the first ground of appeal was, in effect, based on "fresh evidence". The appellant did not categorise the appeal in that way, as there was no reasonable explanation, in terms of section 106(3A) of the 1995 Act, for the evidence not having been led. However, whatever approach was adopted the appeal failed. Absent a change in circumstances, the trial judge was entitled, within his discretion, to refuse the second request to adjourn (High Court Practice Note No.1 of 2004, para 1(d)). Again, the Advocate depute was not in a position to help resolve the apparent contradiction between the minutes and Lord Hardie's report. However, as the report mentioned a preliminary report which was not of assistance, and the minutes did not contradict that, the court could accept Lord Hardie's account as accurate. On that basis, there was no material change in circumstances. Even if the expert reports could be classified as "fresh evidence", it could not be demonstrated that the evidence was of such significance that a verdict reached in ignorance of it had resulted in a miscarriage of justice (Megrahi; Cameron). Indeed the reports' conclusion was potentially another piece of Crown evidence. It was unrealistic to suggest that it would have been lodged and made use of at the trial by the appellant. Similarly, adopting the broad approach in terms of Holland etc, the possibility that the report would have made a difference to the jury's verdict could easily be excluded.

[16] Addressing the grounds of appeal concerning the directions of the trial judge, the Advocate depute accepted that jurors could not themselves make an identification from a video or photograph. Reference was made to Bowie v Tudhope 1986 S.C.C.R. 205, which discussed the approach in England (cf R v Fowden & White [1982] Crim. L.R. 588. However, the lack of a direction not to speculate did not, per se, amount to a miscarriage of justice. That could only be determined from the charge as a whole. That made clear that the jurors had to consider the identification evidence of the officers on whom the Crown relied in reaching their decision, and that they could not reach their own conclusion. There may have been a misdirection, but there was no miscarriage of justice. Similarly, in context, the directions on access to the video concerned productions being taken into the jury room, not viewed in the courtroom. In any event, the identification evidence was based on the still photographs, not the video. There was a possibility that any request to view the latter would have been refused, for fear of the jury assessing a piece of evidence which was not the subject of comment in evidence (cf Gray). The Advocate depute's main submission was that any assessment of the directions depended on all the evidence led, the part played by the evidence which was subject to the directions to which objection had been taken, and the importance attached to it by parties. The video did not assist at all with the witnesses' identification; Crown counsel and the trial judge had made no reference to it in addressing the jury; and defence counsel made only a passing reference to it. As a result, the jury had no cogent reason to see the video.

[17] There had been no miscarriage of justice due to defective representation. The appellant's defence had been presented: two witnesses who identified the appellant had been cross-examined; he had given evidence; and relevant submissions had been made. Counsel's report that the decision not to cross examine DS Miller had been tactical should be decisive. The appellant had to establish that no competent counsel would have made that decision, and that it caused irreparable damage such that the defence was not properly presented. That second matter was crucial. There was no objective support for the argument that the decision not to cross-examine was prejudicial. Its practical effect was that the evidence was not mentioned again; the practical effect of a decision to cross-examine would have been to alert the jury to it. The evidence was not relied on by the Crown and there was, therefore, no need for specific directions to be given in relation to it. It was wrong to link the directions with the decision not to cross-examine and the ultimate conviction of the appellant.

[18] As regards the non-disclosure of DS Miller's statement, its materiality and the nature and extent of any prejudice suffered were important (Kelly v HM Advocate 2006 SCCR 9, per Lady Cosgrove at paras [32] - [34]). The matter had to be seen in the context of the evidence as a whole. There had been no breach of the duty of disclosure. Even if there had been, there was no prejudice, no breach of article 6 and, therefore, no miscarriage of justice. DS Miller's statement did not undermine the Crown case. His precognition showed that he had simply not mentioned in his statement that he could identify the appellant from the photographs. One had to assess the significance and practical effect of cross-examining him about that. It was not significant: the statement simply gave an incomplete picture. DS Miller's explanation might have been that the statement had been put together quickly, that not everything known would necessarily have been included, pending precognition, and that he had no intention to mislead anyone. Practically, the defence might have done more harm than good by reminding the jury about the issue. In any event, the Crown had not relied on DS Miller's evidence. One could exclude the possibility that the jury's deliberation might have been affected by the statement not being disclosed (cf. Holland etc.).

Discussion

[19] In his oral submissions Mr Shead did not mount any reasoned challenge to the decision taken by Lord Carloway on Friday 20 June 2003 to refuse to adjourn the trial diet then set for Monday 23 June - though at one point he asserted that that decision was wrong. Late adjournment of a trial ought to be avoided, unless it is necessary in the interests of justice (Renton & Brown - Criminal Procedure para 18-20). The public interest, including the interest of victims, must, as well as the interest of the accused, be regarded. As Lord Carloway reports, the appellant had been aware since early March 2003 that the Crown intended to rely, for the purposes of identifying him as a perpetrator of this crime, on evidence of police officers speaking to still photographs taken from a surveillance video system. No satisfactory explanation was given as to why, on the eve of the trial, the appellant sought an opportunity to engage an expert to examine the video. Lord Carloway was clearly entitled in the exercise of his discretion to refuse that application.

[20] There is some uncertainty as to what steps had been taken between Lord Carloway's refusal to grant an adjournment and the case calling before Lord Hardie - in the event, on Tuesday 24 June. It seems clear that in the interval legal aid had been sanctioned for the engagement for some purpose of an expert, but it is less than certain what had been achieved by the Tuesday morning and what precisely Lord Hardie was then told. According to Mr Shead (who was not the trial counsel) legal aid had been sanctioned only for the enhancement of the video, not for a report upon it, and by 24 June all that the engaged expert was able to do was to state that, to provide a report, he needed access to the original video, rather than to a copy of it, and that more time was required. If that account is correct, then there had been no material change of circumstances since Friday 20 and the only appropriate disposal would have been to refuse the renewed motion to adjourn. Lord Hardie's report, on the other hand, indicates that he was advised by trial counsel that the video tape had been enhanced over the weekend and that a preliminary report from an expert had been obtained, that report not being of value to the appellant. If that account is correct, again there was no material change of circumstances and refusal of the motion to discharge the diet was in the circumstances virtually inevitable. While Lord Hardie may have gone too far in suggesting that it was "incompetent for me to review the interlocutor of Lord Carloway", it was in the circumstances clearly appropriate, in our view, for him to refuse to grant the motion. Practice Note (No.1) of 2004 is designed to ensure that there is consistency in the disposal of renewed applications for adjournment; it makes plain that such applications are unlikely to be granted unless there has been a material change of circumstances since the earlier refusal.

[21] On the first ground of appeal the issue for determination by this court is whether there has been a miscarriage of justice. The devolution issue lodged by the appellant in April 2006 is, properly construed, directed only to the fifth ground of appeal (failure by the Crown to disclose Detective Sergeant Miller's statement). Mr Shead's argument ranged widely, covering both whether a "fresh evidence" test required to be met or (as he argued primarily) it did not. It is unnecessary, for the purposes of this case, for this court to explore that range of issues. Although the expert report now relied on was obtained only in January 2004 (some seven months after the conclusion of the trial) and a supplementary report in July 2004, we are prepared to address this ground of appeal on the basis on which it was primarily presented, namely, that the requirement of section 106(3A) of the Criminal Procedure (Scotland) Act 1995 (the need for a reasonable explanation of why the evidence was not heard at the trial) does not require to be satisfied - which requirement manifestly is not met. For the reasons given by Lord Carloway (and in effect adopted by Lord Hardie), the refusals to grant an adjournment, viewed in the circumstances which we have described, involved no miscarriage of justice. The appellant's right to a fair trial at common law was not prejudiced (Arshad v HM Advocate, at para [16]). Moreover, viewed in retrospect and in the light of the expert reports (the first of which followed examination of a copy of the video tape and the second of the original) the same conclusion is inevitable. Each report found that there were no significant differences between the likeness of the appellant and that of the person who appeared on the video. A number of facial similarities were identified which led to the conclusion that there was "moderate support" (level 2 of a 5-level sameness scale) for the statement that the images were of the same person. Far from raising any reasonable doubt about the identification evidence led by the Crown at the trial, the reports - albeit not in as confident terms as the evidence of the police officers who knew the appellant personally - gave material support to the Crown case. In the real world it is highly unlikely, had these reports been available prior to or in the course of the trial, that they would have been deployed by the defence. This ground of appeal must be refused.

[22] As to ground of appeal 2, Lord Hardie's illustration to the jury of what he would not allow them to take into the jury room was perhaps unfortunate. While, taken literally, it was well-justified - there could be no question of the jury viewing the video in the privacy of the jury room - his illustration may have carried the implication that he was denying to the jury any opportunity again to view the video recording. The recording had been used by the Crown in evidence for the purpose of showing the actings of the robbers, though not in itself for the purpose of identifying the appellant as one of them. That identification was made from still photographs derived from it. It would have been open to the trial judge to allow the jury, in open court and subject to such further directions as were appropriate, to see again the video played in their presence. Pre-emptively to give the impression that this would not in any circumstances be permitted was a misdirection. But that misdirection led to no miscarriage of justice. The identification made by Constables Cunningham and Prevot was made not by reference to the video but to still photographs taken from it. The issue for the jury was whether they accepted as truthful and reliable the testimony of both these constables - in particular, their testimony on the basis of their familiarity with the appellant that he was the person depicted in these stills (see Bowie v Tudhope). The jury were given clear directions to that effect. There is nothing to suggest that access by the jury to the video itself would have affected in any way the task which they had to undertake.

[23] As to the absence of specific directions to the jury regarding what use they might make of the principal still photographs which they had asked to see, it may have been advisable for the judge to remind them that their task was to evaluate the oral testimony which they had heard and not, from examination of a disputed image, to reach any independent conclusion on identification. However, it is clear from the charge, read as a whole, to what task the jury were directed to address themselves, namely, on the basis of the evidence which they had heard in court and from the witness box to determine the issues before them. These issues were in substance restricted to the identification made by the police constables. For the purpose of evaluating that evidence the jury were entitled to have regard to the principal still photographs which the constables had used. We are not persuaded that there is any serious cause for concern that the jury may have used them illegitimately.

[24] There is no substance in the fourth ground of appeal. It was well within the discretion of trial counsel to handle Detective Sergeant Miller's evidence in the way in which he did. The Detective Sergeant's identification was based on a single sighting of the appellant after viewing the photographs - in contrast to the basis of the identification by the constables who apparently knew the appellant well. A vigorous cross-examination of these constables, combined with a treatment of Detective Sergeant Miller's identification as of no real value (and more dangerous than helpful to challenge by cross-examination) was a tactic well within the discretion of counsel. The fact that that evidence was not picked up later in the trial is some indication of the lack of significance attached to it, including by prosecutor and judge. This court should not too readily substitute its own judgment for decisions made by defence counsel in the course of a trial (McBrearty v HM Advocate 2004 S.C.C.R. 337 at para [60]). The circumstances here fall far short of those in which the conduct of counsel has led to the failure to put an accused's defence or the denial to him of a fair trial (cf. Anderson v HM Advocate).

[25] On the assumption that the failure by the Crown to disclose Detective Sergeant Miller's police statement in advance of the trial amounted to a breach by it of its duty of disclosure (upon which it is unnecessary to express a concluded view), the questions arise whether this led to a miscarriage of justice or, a devolution minute having been lodged on this issue, there was a denial of a fair trial. It was suggested that, counsel not having been provided with this statement, he was precluded from pursuing a legitimate line of cross-examination. But, as we have explained, Detective Sergeant Miller's apparent ability to identify the appellant from photographs was, at best, a peripheral aspect of the evidence before the jury and was not to any extent relied on by the Crown in inviting the jury to convict him. It is very doubtful whether defence counsel, provided with the prior statement, would have made any use of it. The contrast with the centrality to the Crown case of Ms Ritchie's evidence in Sinclair v HM Advocate and of the complainer's evidence in McClymont v HM Advocate could hardly be more striking. The true issue is whether the defence was materially disadvantaged by not having access to Detective Sergeant Miller's statement (Kelly v HM Advocate 2006 SCCR 9). We are quite satisfied that it was not. There was no miscarriage of justice; nor was the trial unfair.

[26] In these circumstances we reject the whole grounds of appeal argued for the appellant. The appeal must be refused.