Scottish High Court of Justiciary Decisons

Act: Burns QC, Barr; Paterson Bell (for William McCluskey, Glasgow)

Alt: Scullion AD; Crown Agent

9 June 2011

1. Background

[1] This Opinion should be read in conjunction with the earlier one delivered on 25 February 2011 ([2011] HCJAC 28) which sets out the circumstances in which the appellant was, on 31 August 2010 at the High Court in Glasgow, convicted by the unanimous verdict of the jury of the attempted murder of WMcA on 11 September 2008. The issue in the trial was the identification of the appellant as the man wearing light coloured clothing shown on closed circuit television images walking away from the scene of the crime towards the camera.

[2] The evidence of identification came from two local police officers. The first of these to give evidence, DC, knew the appellant and was asked to view the CCTV images on 25 September 2008. He identified the appellant in court as the man shown; explaining that the appellant had a distinct appearance, being about 6' 4" tall, of stocky build with a bald shaved head. He habitually wore white clothing and had a particular gait. The second officer, SO, also knew the appellant. She had been asked to view the images on 24 September and, for reasons similar to those given by her colleague, also identified the appellant in court. There was extensive cross-examination of both police officers on the basis that their identifications were mistaken. This was partly based on the quality of the images which, it was accepted, was not the best. It was also founded upon the improbability of the officers' contentions that they were each "100% certain" of their identifications. In due course the appellant gave evidence and denied being the person shown in the images.

2. Submissions

[3] The submission was not that there was insufficient evidence in law upon which to convict, but that, in terms of section 106(3)(b) of the Criminal Procedure (Scotland) Act 1995, the identification evidence did not reach the "base line" of quality necessary before a reasonable jury could convict (McDonald v HM Advocate 2010 SCCR 619 at para [27]; AJE v HM Advocate 2002 JC 215; King v HM Advocate 1999 SCCR 330). The submission helpfully analysed some of the Commonwealth authorities on this subject, including R v Biniaris [2000] 1 SCR 381 and Owen v R [2007] NZSC 102. It also included, within the bounds permitted by the existing grounds of appeal, the complaint that there had been no evidence that the officers had recorded their reasons for identifying the appellant when first viewing the images, as recommended in the Code of Practice for the Identification of Persons by Police Officers (Code D para 3.36) published in England under the auspices of the Police and Criminal Evidence Act 1984 (Smith v R [2009] 1 Cr App R 36, Moses LJ at para 67-69). The dangers of eye witness evidence were well recognised and exemplified in the Crown not supporting the bank robbery conviction in Mills v HM Advocate (9 April 2009, Appeal No XC564/08) where post trial DNA evidence found on a door stop contradicted identifications by two eye witnesses in the bank and two police officers viewing CCTV images.

[4] The Crown maintained that the quality of the evidence was adequate for the purposes of the reasonableness test. The trial judge had given the standard warnings on the dangers of accepting identification evidence in her charge to the jury. But the jury had had the benefit of hearing and seeing the police officers and assessing the reasons given by them for their identifications, as set against the appellant's testimony that he was not the man shown in the images. Despite what was said in Smith v R (supra), compliance with the formal requirements of the Codes was not mandatory in England for the admission of police identification evidence from images (R v Moss [2011] EWCA Crim 252, Moore-Bick LJ at paras 21-23). Furthermore, in fact, whatever might have been stated in court, the two police officers had compiled statements of their identifications on the days on which they had been made. These statements would have been disclosed to the defence.

3. Decision

[5] In R v Biniaris (supra), Arbour J, delivering the judgment of the Supreme Court of Canada, skilfully articulated an appellate court's task in reviewing the reasonableness of a jury's verdict under section 686(1)(a)(i) of the Canadian Criminal Code, which is similar to section 106(3)(b) of the 1995 Act. The assessment of the reasonableness of a verdict is a question of law. A decision that the verdict of a properly directed jury has been unreasonable must be capable of articulation by the judicially trained and experienced assessor and not just be based on a "lurking doubt" (see paras 36 - 42). This use of legal, rather than personal, knowledge and experience is referred to also by the Lord Justice-Clerk (Gill) in AJE v HM Advocate (para [35]). It is at the root of the idea that the test is analytical and not instinctive (Owen v R (supra) at para [17]).

[6] The trial judge explains that she considered the images on, and taken from, the CCTV recording were adequate for the purpose of identification. This court, which has seen the stills, has no reason to depart from that assessment. The two police officers knew the appellant, who has a distinct, if not unique, physique, gait and habit. Both officers viewed the CCTV images separately and, it appears, were able to identify the appellant from them when first viewed. The issue of what the officers did at the time of viewing, by way of recording their thoughts or otherwise, was not explored at trial and cannot form a sound basis for attacking their testimony at the appellate stage. In that connection, the Codes of Practice referred to have no status in Scotland, even if some of their content may provide some useful guidance to best practice.

[7] The appellant himself gave evidence. The jury were able to assess his testimony in the context of the speeches by both Crown and defence on the strengths and weaknesses of the identifications purportedly made. In all these circumstances, it is not possible to articulate any judicial reason why the jury's verdict ought to be classified as unreasonable. On the contrary, standing the police knowledge of the appellant, the ability to view the person in the images at length and the distinctiveness of the appellant, the unanimous verdict of guilt returned by the jury was one which was almost inevitable. The appeal is accordingly refused.