APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Clarke Lord Brodie Lord Osborne	[2011] HCJAC 86 Appeal No: XC660/10 OPINION OF THE COURT delivered by LORD CLARKE in NOTE OF APPEAL AGAINST CONVICTION by JOHN JOSEPH JENKINS Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

Appellant: Scott, Q.C., Mitchell; John Pryde & Co, Edinburgh (for Mann & Co, Glasgow)

Respondent: Miller, A.D., Solicitor Advocate; Crown Agent

31 August 2011

Introduction

[1] On 21 September 2010, at the High Court in Glasgow, the jury, by a majority verdict, convicted the appellant of three charges. The first charge, which had been amended by the Advocate depute, was in the following terms:

"(001) on 31 October 2009 in Mull Park, in a lane between Mull Park and Oronsay Road, and at Oronsay Road, all Airdrie, you JOHN JOSEPH JENKINS did while acting with others form part of a mob of evilly disposed persons which acting of a common purpose to intimidate and assault members of the Smith and Poyner families residing there and their associates, and in furtherance of said common purpose, did conduct itself in a violent, riotous and tumultuous manner to the great terror and alarm of the lieges and in breach of the peace ... and did:

...

(c) assault George Alan Poyner, known as Alan Poyner, c/o Strathclyde Police, Airdrie, punch him on the head ... and strike him on the body with a knife or similar instrument, all to his ... injury, and to the danger of his life and did attempt to murder him;

(d) assault Kevin Asken, c/o Strathclyde Police, Airdrie, repeatedly punch and kick him on the head and body, force him to the ground and strike him on the face with a knife or similar instrument all to his severe injury and permanent disfigurement;

(e) assault John Aitken Smith, junior, c/o Strathclyde Police, Airdrie ... strike him on the head with a bottle, repeatedly punch and kick him on the head and body and force him to the ground, all to his injury;

... and

(g) maliciously damage motor vehicles registered numbers OY55 FBN and CJB 426B by repeatedly kicking them ...;

you JOHN JOSEPH JENKINS did commit this offence while on bail, having been granted bail on 22 October 2007 at Airdrie Sheriff Court;"

The second charge was:

"(002) on 31 October 2009 at 27 Oronsay Road, Airdrie, you JOHN JOSEPH JENKINS did assault Jeannie Mulaney Goorley Smith, known as Jean Smith, formerly residing there, and did seize her by the hair and strike her on the body with a knife or similar instrument whereby she was so severely injured that she died on 31 October 2009 at Monklands District General Hospital, Monkscourt Avenue, Airdrie, and you did murder her;

you JOHN JOSEPH JENKINS did commit this offence while on bail, having been granted bail on 22 October 2007 at Airdrie Sheriff Court;"

The third charge was:

"(003) on 31 October 2009 at 23 Oronsay Road, Airdrie, you JOHN JOSEPH JENKINS did assault Marie Poyner, c/o Strathclyde Police, Airdrie, and did strike her on the face with a knife or similar instrument to her severe injury and permanent disfigurement;

you JOHN JOSEPH JENKINS did commit this offence while on bail, having been granted bail on 22 October 2007 at Airdrie Sheriff Court."

A fourth charge relating to the disposal of evidence and attempting to defeat the ends of justice was withdrawn by the Crown.

[2] The trial judge, Temporary Judge Beckett, Q.C., sentenced the appellant to eight years' imprisonment in respect of charge 1, life imprisonment in respect of charge 2, with a punishment part of twenty years, and five years' imprisonment in respect of charge 3. The periods of imprisonment were to run concurrently and to commence from 8 December 2009. The appellant appeals against conviction in respect of all three charges and against sentence.

[3] The events to which the charges related took place, in the hours of darkness, in the early morning of 31 October 2009 in Oronsay Road, Airdrie. They involved a fight and disturbance between a group of persons and members of families named Smith and Poyner. The numbers of persons involved in these events were spoken to as being between eight and twenty persons. The appellant was one of these persons.

[4] The evidence, as set out in the trial judge's report to this court, was that the fight in fact involved a number of separate fights going on at the same time and the scene was chaotic. The deceased referred to in charge 2, Jean Smith, had gone out of her home on to Oronsay Road to look for her younger son Stephen Smith. Her husband, John Smith, junior, followed her. John Smith, junior was punched and kicked and was struck on the head with a bottle and sustained injury. Kevin Asken is another son of the deceased and, at that time, he lived in Oronsay Road with her. He was awakened by his sister who told him that their parents were out in the street. Asken went out into the street to try to protect his step-mother and John Smith, junior. He sought to attract people away from his step-father and towards himself. He himself was then assaulted by being punched and kicked and stabbed on the left side of his face. He was not able to say who had attacked him.

[5] The fight or fights continued. Asken, John Smith, junior and the deceased Jean Smith retreated from the area outside 21 Oronsay Road to their own garden at number 27 Oronsay Road. They were followed into the garden by three persons, of whom one came forward and appeared to punch the deceased, Jean Smith, on the left side. She was immediately heard to say to her husband, "John, I have been stabbed". Amongst those who witnessed this was the deceased's 12 year old daughter, Paige Smith. Paige Smith was not able to identify the assailant, but she spoke of a man breaking away from a group in her garden, who then grabbed her mother's hair and moved his hand to the side. Her mother was heard by her to say that she had been stabbed.

[6] The deceased was taken into the kitchen of her home, where she collapsed. She was then brought by ambulance to Monklands General Hospital, where she died later that morning. The pathology evidence, at trial, was that the deceased's heart had been penetrated by a single wound from a knife, the blade of which must have been a minimum of 11cms long. The cause of death was recorded simply as "stab wound to heart". Three knives had been recovered, following a witness John Mooney directing police to them. That witness, in his evidence in court, said that the appellant had had these knives, in his possession, near to the locus, at the end of the incident, and had induced the witness to throw them into a field later in the morning. The pathologist who gave evidence at the trial said that any of these three knives could have caused the fatal wound to the deceased.

[7] Initially police investigation resulted in suspicion in respect of the murder of Jean Smith falling on Shaun Paul Jenkins. He had been identified by some witnesses from a photograph on the website "Bebo". This photograph became production 39 at the trial. He is the nephew of the appellant. Shaun Paul Jenkins was, in due course, charged with the murder of Jean Smith and appeared on petition, but was subsequently released, on the procurator fiscal's instructions, after a week in custody. After receiving information given to them by the witness John Mooney, the police detained the appellant and ultimately the appellant was charged with the murder of Jean Smith on 17 December 2009. When judicially examined before the sheriff, on 22 December 2009, the appellant said in relation to the charge of murder, "I'm totally innocent." He went on to say that he had heard that John Mooney was responsible for the murder.

[8] The witness Asken, when interviewed by the police on the morning of the incident, told them, "I don't know any of the boys who attacked me or my dad or my mum, but the boy who I saw punching into my mum's side was about 5'10", he was white, shaggy black hair, it wasn't long but it was quite thick, he was wearing a black bomber style jacket, it was a puffer jacket but I didn't see any tags on it. He was quite stocky with quite wide shoulders, he was early twenties." He later went on to say, "I don't know if I would be able to recognise the boy who I saw punching into my mum and I can't describe him any more to you." This witness later attended at Coatbridge Police Station on 3 November 2009. On this occasion he gave a further statement to the police, in the course of which he said, "I got a good look at the guy who attacked my mum but at the time I did not know who he was. I had not seen him before." Prior to attending at Coatbridge Police Station, Asken had attended at his aunt's house. The aunt had been involved in the fracas and had herself been assaulted. She is the complainer in charge 3. Along with other family members he was shown a photograph on the Bebo website. The witness subsequently told the police that, "I was shown a picture of maybe three or four males standing in front of something green ... it was daylight and as soon ah saw the photograph my attention was drawn to a male standing to the far right he was bare chested and was holding a bottle of wine. I immediately recognised this person as the guy who had assaulted my mother outside our house on the morning of 31 October 2009. I am 100% positive that it is him, although now his hair is longer, his hair was cut right in in the picture." (emphasis added). The person identified by Asken was Shaun Paul Jenkins.

[9] On 13 November 2009 the witness Asken attend a VIPER identification parade. He identified a stand-in as the person who had assaulted his mother. Asken had also shown interest in an image of Shaun Paul Jenkins which was included in the parade. Immediately after the parade he gave the following statement to the police:

"About 1630 hours today Friday 13 November 2009 I came to Coatbridge Police Office to view an identification parade regarding the murder of my mum Jeannie Smith and assaults on me and others in my family. I viewed a DVD of nine men. I recognised the guy at No.1. He is the guy that stabbed my mum or he's a good look-a-like. I didn't see him doing anything else. As me, my mum and my dad were backing up my driveway, he was one of the three guys who were at the driveway. He was in front and he came up the side of my mum and hit her in the side. I thought he had punched her and then she said she'd been stabbed."

The witness then attended a further VIPER identification parade, which featured an image of the appellant and which was held on 10 December 2009. At the trial Asken confirmed in evidence that he had not made any identification on that occasion. Police Constable Lesley Andrews, who also gave evidence at the trial, spoke to the conduct of this parade. At this parade Asken was referred to a statement which he had made on 31 October 2009 with his reference therein to a person who "was involved in the general disturbance". He viewed the images and said, "I cannae recognise any of them." In his evidence in court, when asked about his state of mind at that time, he said, "I had not slept in about a month. I was going to the doctor's. I was pretty much away with it." He said that he had told the police all of this at the time.

[10] On 16 December 2009 the witness attended at Airdrie Sheriff Court, along with other family members, in connection with a charge of breach of the peace unconnected with the events with which the present appeal is concerned. He heard a name John James Jenkins "or something like that" being called out in the court. When the person, in question, was thereafter brought upstairs into the dock in the court, Asken said he recognised him as the person who had stabbed his mother. He subsequently went, on the same day, to the police office and gave a statement. In his evidence, in court, he confirmed that, prior to arriving at Airdrie Sheriff Court that morning, he had known that someone was in custody by that time in relation to the charge of murder, and he knew that the person's name was John Jenkins. He confirmed that the appellant was handcuffed to a police officer when he was brought into the court. He gave a statement to the police, on 16 December, which is production 77 and which was put to him in court. He did not materially depart from it. In that statement he said:

"... the 5 of us just went round to court 5 and sat in the waiting bit at the back of the court. We were right in the middle of the waiting bit ... then the judge came on and we all had to stand up. Then the court called up the first name. It was John Joseph Jenkins. I recognised the name right away, but I thought it canny be. They wouldna put us in the same court as him. Then I saw Jenkins getting brought up the stairs by the polis guy with the cuffs on. The first thing I saw was the left side of his face then as he was walking I recognised the way he moved his head and his shoulders with his head down. He was swaggering, then the way he turned the corner to go into the box I started getting really angry with myself cause I thought I've blown it, cause I knew when I saw him and the way he moved and his face, this was definitely the same guy that jumped around the side of my maw, and what I thought punched her, but as soon as he done this and backed off, she shouted 'he's stabbed me John, he's stabbed me.' The only difference today at court was that Jenkins only had short hair, that night when he stabbed my maw he had bushy hair, it wasn't long just dead messy, as if he hadn't had it cut for a while. When I first saw him today, Jenkins turned his head away from the crowd towards the court, it was then that it clinched that this was the same guy that stabbed ma maw, then just everything else about the way he moved and the way he held himself, this just confirmed it to me, it was uncanny man, I'm 100% sure this is the guy who stabbed ma maw." (emphasis added)

Later on in his statement the witness told the court:

"After he sat down and the judge was dealing with Jenkins, all I could think was I've blown it, it was just making me so angry. We didn't get taken at court in the morning, so we went for lunch at a café in the Market Square, all my family were talking about seeing Jenkins, ah told them I know it's him, in the back of me heed, I was thinking I've fucked this."

The witness, in his evidence, in court, said by saying, "I've blown it" he meant he had previously identified the wrong person as being responsible for his mother's murder.

[11] Objection had been taken, in advance of trial, to evidence of identification being elicited from certain witnesses, including Asken. Under reference to article 6 of the ECHR a hearing took place before Temporary Judge O'Grady, Q.C., who repelled the objections. That decision was the subject of an appeal, which was refused. The court, on appeal, held that the issue of whether or not the leading of the identification evidence would inevitably lead to an unfair trial should be left for determination after the trial was concluded (see Jenkins v HM Advocate XC349/09 30 July 2010). In the event, at trial, the only identification evidence relied upon by the Crown to fix the appellant with liability for the murder of Jean Smith was a dock identification of him made by the witness Asken. In the circumstances, the trial judge, Temporary Judge Beckett, Q.C., gave the jury the clear direction, at page 55 of the transcript of the charge, that:

"... you can only find the accused guilty of murder if you accept that Kevin Asken made a genuine identification of the accused in court by which I mean that he recognised him as the person he saw apparently punch his mother. That is very important, so I will say it again. Whilst it's certainly the case that you can and should look at all the evidence on which the Crown relies together as the Advocate depute asked you to do, you can only find the accused guilty on charge 2 if you accept that Kevin Asken made a genuine identification of the accused in court by which I mean that he recognised him as the person he saw apparently punch his mother."

It is of some importance to note that, before this court, the Advocate depute confirmed that the Crown's position was that the conviction on charge 2 had to depend on the dock identification by the witness Asken. If that evidence, for whatever reason, had to be removed from the picture there was insufficient evidence for a conviction of the appellant on the charge of murder. It should be recorded, at this stage, that the witness's pre-trial failures to identify the appellant, his identification of other persons and the evidence of what transpired at Airdrie Sheriff Court on 16 December 2009, were all made the subject of skilful and robust cross-examination by senior counsel for the appellant. In addition, the trial judge, in the course of a very careful and detailed charge to the jury, was at pains to put the difficulties that arose in relation to this witness's evidence before the jury and to admonish them to approach his evidence with very considerable care.

Grounds of Appeal
[12] The grounds of appeal against conviction, as lodged, were as follows.

"1 In respect of charge 2 on the Indictment, in terms of section 106(3)(b) of the Criminal Procedure (Scotland) Act 1995 the verdict returned by the jury in respect of that charge is a verdict which no reasonable jury, properly directed, could have returned and accordingly there has been a miscarriage of justice. The quality, character and strength of the evidence led in support of this charge was such that the jury should have held there was a reasonable doubt as to the guilt of the appellant. The Learned Trial Judge directed the jury that they could only convict the appellant of murder if they accepted the identification evidence of the accused in court by Crown witness, Kevin Asken (Judge's Charge, page 54, line 23 to page 55, line 11). The evidence of identification by Crown witness Kevin Asken was significantly flawed in a number of respects.

(i) at a VIPER identification parade which took place on 10 December 2009, in which the appellant's video image appeared as part of the collection, the Crown witness Kevin Asken failed to identify the appellant;

(ii) the Crown witness Kevin Asken had been shown a photographic image from the Bebo website of Sean Jenkins, an incriminee in the case. He identified Shaun Jenkins as the person who had struck his mother;

(iii) at a VIPER identification parade which took place on 13 November 2009 and which included an image of the witness Sean Jenkins, the evidence showed that Kevin Asken had taken some interest in the image of Sean Jenkins but had gone on to select a stand-in as the person who had struck his mother. In relation to the person he picked out he stated, "He is the guy that stabbed my mum or he's a good look-a-like";

(iv) on 16 December 2009 the witness Kevin Asken had been at Airdrie Sheriff Court when he heard the name of the appellant being called. He claimed at that stage to have identified the appellant as being the person responsible for the murder. However, at that stage, the Crown witness Kevin Asken knew that the appellant had been charged with the murder;

(v) Crown witness John Smith had initially made a dock identification of the appellant. However, in his evidence, that was subsequently retracted and the jury were directed that they could not treat this as evidence of identification of the appellant in relation to charge 2 (Judge's Charge, page 49 line 8 - line 24);

(vi) Crown witness, Maria Poyner, the complainer in relation to charge 3, named the appellant in her evidence and further acknowledged in her evidence that she had told a deliberate lie in one part of her evidence to implicate the appellant.

2 The conviction of the appellant in relation to charge 3 depended upon the doctrine of mutual corroboration with the offence in charge 2. Accordingly, if the verdict in respect of charge 2 is not a verdict which a reasonable jury, properly directed, could have returned, then there is insufficient evidence in respect of charge 3 to corroborate the identify of the appellant as this assailant in this relation to this charge.

3 In relation to charge 1 the jury were directed at pages 80 and 81 that they could have regard to the evidence relating to charges 2 and 3 in assessing the question of the appellant's presence at the locus and the question of whether he was part of the mob. Accordingly, if the jury were not entitled to return the verdicts in respect of charges 2 and 3 for the reasons outlined above, then there was insufficient evidence to implicate the appellant in charge 1. The appellant was not directly identified as being responsible for any of the separate crimes specified in the paragraphs which remained to be determined by the jury, namely paragraphs (b), (c), (d) and (e).

4 In respect of paragraph (c) of charge 1, there was insufficient evidence to corroborate that this offence had occurred as part of the incident of mobbing and rioting said to have taken place at the specified locus."

[13] At the outset of the hearing, before this court, senior counsel for the appellant, without objection from the Advocate depute, sought leave to lodge a minute seeking to amend the grounds of appeal contained in the note of appeal, in terms of section 110(4) of the Criminal Procedure (Scotland) Act 1995. In paragraph 4 of the minute it is stated:

"The Minuter seeks to amend his existing grounds of appeal to the effect that the leading and reliance upon the dock identification evidence from Kevin Asken, by the Lord Advocate in the whole circumstances of this case rendered his trial unfair and in breach of his right to a fair trial under article 6(1) of the European Convention of Human Rights (ECHR). Notwithstanding the fact that the witness was extensively cross-examined ... and that the jury were directed to take care over his evidence (Charge pages 32-40) it is submitted that having regard to the fact that this was a 'stranger' identification; in view of the suggested way in which the identification evidence was obtained as rehearsed in the circumstances listed (i) - (vi) in the existing ground 1 of the note of appeal, and in the view of the critical nature of this evidence, the trial was rendered unfair. As such the act of the Lord Advocate in leading and relying upon the evidence was incompatible with article 6 of the Convention and in terms of s.57(2) ultra vires and a further devolution issue arises."

It was, furthermore, pointed out in the said minute that a preliminary objection in relation to the said identification evidence had been taken as being in breach of the appellant's right to a fair trial. That objection, as has been seen, was repelled as premature but the appeal court had considered that it may be appropriate to be reconsidered after trial.

[14] The court was satisfied that to allow these additional grounds of appeal, at this stage, would not involve any substantial addition to the time required for the appeal hearing as they were largely covering the same ground as to the circumstances of, and reliance upon, the identification evidence of Kevin Asken. The court also took into account the fact that the issue had already been raised as a preliminary issue and that the court had expressly left open the possibility that it may require to be visited again after trial. For these reasons we decided to allow the grounds to be amended as sought.

Submissions on behalf of the Appellant
[15] In opening her submissions, and in addressing ground of appeal 1, senior counsel for the appellant reminded the court of the origins of the provisions of section 106(3)(b). The provisions themselves are to the following effect:

"By an appeal under subsection (1) above a person may bring under review of the High Court any alleged miscarriage of justice, which may include such a miscarriage based on - ....

(b) the jury's having returned a verdict which no reasonable jury, properly directed, could have returned."

Section 2(1) of the Criminal Appeal (Scotland) Act 1926 provided, inter alia, that the verdict of a jury could be set aside on the grounds that it was unreasonable or could not be supported by the evidence. The proviso to the section required, however, that there had to have been "a substantial miscarriage of justice" before an appeal would be allowed on this ground. The test of "unreasonableness" was construed as meaning a verdict which no reasonable jury, properly directed, would have returned, see Slater v HM Advocate 1928 JC 94. This ground of appeal was removed in the criminal procedure legislation of 1980. The Sutherland Committee on Criminal Appeals and Miscarriages of Justice Procedure Report (June 1996 [C.3245]) recommended such a ground of appeal should be reinstated and their recommendation was implemented in what is now section 106(3)(b). The Sutherland Committee expressed the view that, while an appeal based upon such a provision would succeed only in exceptional cases, they did expect "a broader recognition of the potential for such cases" than had been the position under the 1926 Act.

[16] In King v HM Advocate 1999 SCCR 330 the appeal court held that it could quash the verdict of a jury, relying on these provisions, only if satisfied that, on the evidence led at the trial, no reasonable jury could have been satisfied beyond a reasonable doubt that the accused was guilty. The Lord Justice General, Lord Rodger, stated at page 333 "The test is objective". At page 335 his Lordship continued:

"... it is not for us simply to substitute our view of that evidence for the view which the jury took. In particular, a miscarriage of justice is not identified simply because, in any given case, the members of this court might have entertained a reasonable doubt on the evidence. If that were all that was required, Parliament would have gone far towards replacing trial by jury with trial by the judges of this court. The words in the provision were clearly chosen to avoid any risk of that."

[17] In AJE v HM Advocate 2002 SCCR 341 Lord Justice Clerk Gill, at para [29] of his Opinion, said that having regard to the provisions of section 106(3)(b) the court "cannot now regard the issue of reasonable doubt as being at all times within the exclusive preserve of the jury". At para [30] his Lordship continued:

"The court has to make a judgment on the evidence that the jury heard and assess the reasonableness of the verdict with the benefit of its collective knowledge and experience."

His Lordship furthermore pointed out (at para [31]) that while in making its assessment the court "must certainly keep in mind that the jury heard and saw the witnesses, and that the meaning and significance of a witness's evidence may not always be fully conveyed on the printed page;" but, he continued, "the court must also consider whether, on the facts of the case before it, it is at any serious disadvantage to the jury in these respects". The Lord Justice Clerk, importantly, pointed out at para [34] that in deciding, in an application of the provisions of section 106(3)(b) whether or not the jury's verdict was unreasonable, the judges should "bring all that experience to bear". That should be done with confidence rather than interpret section 106(3)(b) out of existence by excessive deference to the judgment of the jury."

[18] Senior counsel for the appellant submitted that the present case raised the question as to whether a reasonable jury could have concluded that the dock identification by the witness Asken was sufficiently reliable for them to find the appellant guilty of murder. The case was one of reliability of evidence rather than credibility. She broadened her submission by reference to Canadian jurisprudence where, as was noted by the court in King, there is a provision in the Canadian criminal law which, as applied, is to very similar effect as the provisions of section 106(3)(b). The provision in question is to be found in s.686(1)(i) of the Criminal Code R.S. C-46. It is to the following effect:

"On the hearing of an appeal against a conviction or against a verdict that the appellant is unfit to stand trial or not criminally responsible on account of mental disorder, the Court of Appeal

may allow the appeal where it is of the opinion that

the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence."

That provision was interpreted by Macintyre J in R v Yebes [1987] 2 SCR 168 in a passage (at para 25), subsequently approved by the Supreme Court of Canada, which was to the following effect:

"The function of the Court of Appeal, under s.613(1)(a)(i) of the Criminal Code goes beyond merely finding that there is evidence to support a conviction. The court must determine on the whole of the evidence whether the verdict is one that a properly instructed jury, acting judicially, could reasonably have rendered. While the Court of Appeal must not merely substitute its view for that of the jury, in order to apply the test the Court must re-examine and to some extent re-weigh and consider the effect of the evidence."

It was submitted by senior counsel for the appellant that the provisions of the Canadian Code, as construed, were to all intents and purposes to the same effect as section 106(3)(b).

[19] In what this court found to be, in the event, a highly illuminating judgment of the Supreme Court of Canada, delivered by Arbour J in R v Binaris [2000] 1 SCR 381, the court took time to analyse the role, and task, of the appeal court in applying provisions like section 106(3)(b), which to some extent reflects what the Lord Justice Clerk had to say in AJE cited supra. At para [39] of its judgment, the Supreme Court said:

"When a jury which was admittedly properly instructed returns what the appeal court perceives to be an unreasonable conviction, the only rational inference, if the test in Yebes is followed, is that the jury, in arriving at that guilty verdict, was not acting judicially. This conclusion does not imply an impeachment of the integrity of the jury. It may be that the jury reached its verdict pursuant to an analytical flaw similar to the errors occasionally incurred in the analysis of trial judges and revealed in their reasons for judgment. Such error would of course not be apparent on the face of the verdict by a jury. But the unreasonableness itself of the verdict would be apparent to the legally trained reviewer when, in all the circumstances of a given case, judicial fact-finding precludes the conclusion reached by the jury. Judicial appreciation of the evidence is governed by the rules that dictate the required content of the charge to the jury. These rules are sometimes expressed in terms of warnings, mandatory or discretionary sets of instructions by which a trial judge will convey the product of accumulated judicial experience to the jury, who, by definition is new to the exercise. For instance, a judge may need to warn the jury about the frailties of certain witnesses, such as accomplices, who may, to the uninitiated, seem particularly knowledgeable and therefore credible. Finally, judicial warnings may be required when the jury has heard about the criminal record of the accused, or about similar fact evidence. But these rules of caution cannot be exhaustive, they cannot capture every situation, and cannot be formulated in every case as a requirement of the charge. Rather, after the jury has been adequately charged as to the applicable law, and warned, if necessary, about drawing possibly unwarranted conclusions, it remains that in some cases, the totality of the evidence and the peculiar factual circumstances of a given case will lead an experienced jurist to conclude that the fact-finding exercise applied at trial was flawed in light of the unreasonable result that it produced."

The court, at para [40] of its judgment continued:

"When an appellate court arrives at that conclusion, it does not act as a 'thirteenth juror', nor is it 'usurping the function of the jury'. In concluding that no properly instructed jury acting judicially could have convicted, the reviewing court inevitably is concluding that these particular jurors who convicted must not have been acting judicially. In that context, acting judicially means not only acting dispassionately, applying the law and adjudicating on the basis of the record and nothing else. It means, in addition, arriving at a conclusion that does not conflict with the bulk of judicial experience. This, in my view, is the assessment that must be made by the reviewing court. It requires not merely asking whether twelve properly instructed jurors, acting judicially, could reasonably have come to the same result, but doing so through the lens of judicial experience which serves as an additional protection against an unwarranted conviction."

[20] The Canadian provisions were the subject of consideration involving issues of reliability of identification evidence, in R v Tat 1997 CAN LII 2234 (ON.CA). At para 97 of the judgment of the court, given by Docherty JA, the court referred to s.686(1)(a)(i) of the Criminal Code. It, it was said:

"... requires that this court review a trial record to determine whether a conviction 'is unreasonable or cannot be supported by the evidence'. The section recognises that there will be cases where despite an error-free trial and the existence of some evidence against an accused, appellate intervention is necessary to avoid an injustice."

The court at para 98 continued:

"The review directed by s.686(1)(a)(i) is a limited one for very good reasons. The appellate process is not well suited to the assessment of the cogency of evidence led at trial. Appellate courts can claim no particular expertise in the secondhand evaluation of evidence. Appellate assessment of the factual merits of a case is not likely to be more reliable or accurate than the judgment made at first instance. Consequently, it is only in the clearest cases where the result at trial can be said to be unreasonable that appellate intervention is warranted. A verdict is unreasonable only where the appellate court is satisfied that the verdict is one that a properly instructed trier of fact acting judicially could not reasonably have rendered."

The court then in passages which have a certain resonance in the context of the present appeal said, at paras 99-100:

"99 While recognising the limited review permitted under s.686(1)(a)(i), convictions based on eyewitness identification evidence are particularly well suited to review under that section. This is so because of the well recognised potential for injustice in such cases and the suitability of the appellate review process to cases which turned primarily on the reliability of eyewitness evidence and not the credibility of the eyewitness ...

100 The extensive case law arising out of the review of convictions based on eyewitness identification reveals that the concerns about the reasonableness of such verdicts are particularly high where the person identified is a stranger to the witness, the circumstances of the identification are not conducive to an accurate identification, pre-trial identification processes are flawed and where there is no other evidence tending to confirm or support the identification evidence ...".

It was submitted, by senior counsel for the appellant, that the first three factors referred to in para 100 of the court's judgment arose in the present case and with regard to the fourth factor, she would be going on to submit that there was little evidence tending to confirm or support the identification evidence.

[21] Senior counsel then turned to review the context in which the murder took place and the context in which the dock identification came to be made by the witness Asken. The context of the offence was a full-scale episode of mobbing and rioting, involving a significant number of persons. Amongst those persons were two men who the appellant incriminated namely Sean Paul Jenkins and John Mooney. Witnesses spoke to people running around in a mob like "ants". A number of persons in the mob were spoken to as having been carrying knives. The witness John Mooney was seen with a knife. Another man was seen with two knives. Sean Paul Jenkins, who was originally suspected of committing the murder, was spoken to as having been in the vicinity of where the murder took place. The victim named in the third charge, Marie Poyner, originally spoke to Sean Paul Jenkins assaulting her with a knife but subsequently changed her evidence in that respect. The evidence about the appellant having knives came from one of his incriminees, John Mooney. The appellant was the only person named in the charge of murder and was the only person sitting in the dock charged with that offence.

[22] Senior counsel for the appellant then proceeded to review, in some detail, the evidence of the witness Asken. We have already endeavoured to summarise that evidence. Senior counsel highlighted certain significant matters. The witness had spoken to seeing three men coming into the garden of his home and attacking his father at the edge of the garden. His mother, the deceased, had come out of the house and one of the three men had come forward and stabbed her. In his first police interview, while the witness had said he had got a good look at this man, he also said he was doubtful if he could recognise him again. It was important to note that that was his position immediately after the incident on 31 October 2009. On 3 November 2009 he gave his second police statement and said, on this occasion he could not identify his mother's assailant. He did not know the person in question who was a stranger to him. It was clear from the evidence that after that interview a great deal of discussion took place among the deceased's family as to who had been responsible for her death. That resulted in the witness going to Marie Poyner's house. He was told that Sean Paul Jenkins was the suspect. He was asked by members of the family to look up the facebook Bebo where a photograph, which included Sean Paul Jenkins, appeared. Having been told that this was the suspect, he said he recognised him and went to the police station. He informed the police that he was 100% sure that the person in the photograph, Sean Paul Jenkins, was his mother's assailant. The appellant was over 30 years of age at this time, while Sean Paul Jenkins was between 14 and 15 years old.

[23] At the VIPER identification parade held on 13 November 2009 Asken was shown sequential video pictures of persons who moved from side to side. None of these persons was the appellant. Sean Paul Jenkins was No.7 in the parade. Asken asked to be allowed to look again at No.1 in the parade and No.7. He then proceeded to identify No.1 as his mother's assailant. In his statement to the police in relation to that identification, he positively identified the person at No.1 as the person who had stabbed his mother, or at least he was a good look-a-like. He said he was one of the three guys at the driveway and was at the front. The witness said that this man came up the side of his mother and hit her on the side.

[24] At a further VIPER parade held on 10 December 2009, which contained a video photograph of the appellant, the witness made no identification and informed the police "I cannae recognise any of them".

[25] On 16 December 2009, all as noted above, the witness, along with a number of members of his family, including his father, John Smith, junior, and his aunt Marie Poyner, the victim in charge 3, attended Airdrie Sheriff Court when the appellant appeared in the dock handcuffed to policemen. Both John Smith, junior and Marie Poyner had known the appellant before the events of 31 October. The identification by Asken at that time of the appellant was in the context of the witness knowing that the person John Jenkins, whose name he heard being called out in court, was a suspect. After seeing the appellant in the dock in the circumstances described, the witness had gone to a café with the other members of the family who were with him, and discussed matters before he then went to the police station where he told the police he was 100% certain that the appellant was his mother's assailant. While the appellant had not been charged with murder at that stage, Asken's father, John Smith, junior said in evidence in court, that "Jenkins' name was the talk of the place".

[26] In his evidence in court the witness explained, as noted above, that he had recognised the appellant in Airdrie Sheriff Court because of the way in which he looked then and the way in which he moved. The dock identification by Asken, Ms Scott reminded the court, took place on 3 September 2010, over nine months later.

[27] Senior counsel for the appellant submitted that the foregoing events all carried with them risks when it came to considering the reliability of the dock identification itself. The appellant was a stranger to the witness before the incident. The incident itself was a stressful one for the witness himself. It was, furthermore, well-known that visual recall and identification was highly susceptible to what was described as "feedback" and was readily influenced and affected by a witness being given information before the identification took place. That was, indeed, the reason for having identification parades where there were controlled conditions and the opportunity for such influences was removed. In discussing the dangers associated with a dock identification in the Canadian case of R v Reitsma CAN.LII 3607 (BC.C.A.) Prowse J, in giving the majority judgment of the court, said at para 57:

"Identification of an accused for the first time in the dock was considered in R v Williams (1982), 66 C.C.C. (2d) 234 (Ont.CA.), in which Martin JA made these observations at 235:

'Identification always has certain inherent frailties. Identification evidence may be strengthened if the identifying witness is able to pick out the person whom he claims to have seen on the occasion in question from among a number of other persons of similar age and size and general physical appearance in a line-up. On the other hand, an identification of an accused as the offender made for the first time when the prisoner is in the dock possesses particular frailties over and above the normal frailties attaching to identification evidence.'

The Justice then continued, at para 58:

"The frailties of eyewitness identification may be most pronounced in cases where the accused was not known to the complainant before the offence and where the complainant's opportunity to observe the perpetrator was limited to a brief, stressful encounter".

At para 59 she then made these particular comments about dock identifications:

"The identification of an accused person for the first time 'in the dock' is generally regarded as having little weight. In a dock identification the witness is obviously not required to pick out the person whom he claims to have seen from among a number of persons of similar age and size and general physical appearance. In a court room identification there is also the danger of the witness anticipating that the offender will be present. That danger is accentuated when an accused is readily identifiable in the courtroom as the person accused of the crime. Identification of an accused for the first time in the dock is analogous to a police 'show up' in which the only person shown to the identifying witness is the suspect, and for that reason it is open to the same criticism."

The Justice then made the following important remark:

"Generally, anything which tends to convey to a witness that a person is suspected by the police or is charged with the offence has the effect of reducing or destroying the value of the identification evidence."

Reliance on a dock identification of the kind made in the present case, it was submitted, would not now be allowed in England and Wales. The position there followed on from the recommendations of the Committee chaired by Lord Devlin in 1976 on Evidence of Identification in Criminal Cases. At para 4.25 of the Report the Committee had focused on the issue of reliability of identification evidence. There they observed "Our own view is that identification ought to be specially regarded by the law simply because it is evidence of a special character in that its reliability is exceptionally difficult to assess". The Committee then went on to elaborate, in some detail, their reasons for holding those views. Against that background the Committee dealt specifically with dock identifications and made the following recommendations at para 8.7:

"It is generally agreed that dock identification is undesirable and unsatisfactory. It is however legally admissible and the courts have left it to the discretion of the trial judge to say whether or not it should in particular cases be rejected as prejudicial. We recommend that this discretion should be limited and regulated by statute. Identification on parade, or in some other similar way in which the witness takes the initiative in picking out the accused should be made a condition precedent to identification in court, the fulfilment of the condition to be dispensed with only when the holding of a parade would have been impracticable or unnecessary .... In all cases in which a dock identification is permitted the judge should be required by statute to warn the jury about the weakness of such evidence in a situation which there has to be a confrontation and not a picking out."

[28] In Scotland, the reliance on a dock identification, even where the witness making such an identification has previously failed to pick out the accused at a prior identification parade, is permissible. That is so despite the recommendation of the Thomson Committee in 1975 in their report at para 13.4 that it should not be competent for the Crown to ask a witness who had viewed an identification parade, and had failed to identify the accused on that occasion, to identify the accused in court. A subsequent Working Party, however, chaired by Sheriff Principal Bryden, considered the question of dock identification and came down against recommending any reform along the lines proposed by the Thomson Committee. The continued approach in Scotland being that such evidence is competent, was upheld by the Privy Council in Holland 2005 SC (PC) 3, see Lord Hope of Craighead at para 6 and Lord Rodger of Earlsferry at para 57. Nevertheless the dangers inherent in such identification were recognised, in the context of the requirements for a fair trial under article 6 of the ECHR, by Lord Rodger at paras 47 and 48 in Holland. As his Lordship pointed out at para 50:

"Not surprisingly, the dangers of dock identification have been as obvious to Scottish authors and official bodies as to those in other parts of the world. Indeed as long ago as 1833, in his Practice of the Criminal Law of Scotland p.628, Alison recognised that a dock identification of the accused was open to the observation that 'his being in that situation helped them to believe he was the same'".

Lord Rodger, at para 48, referred to the reliance on a dock identification as introducing into the trial a "particular element of risk". The element of risk had been increased, it was submitted, in the present case by virtue of the following factors:

(1) The identification was of a person who had been a stranger to the witness at the time of the incident and where the conditions pertaining at that time meant that the witness's opportunity to observe the perpetrator was brief and limited and arose in what was a stressful situation for the witness himself.

(2) The identification made at the sheriff court and reported thereafter to the police arose when the witness knew that the appellant was a suspect.

(3) The dock identification took place subsequent to the previous identification of other persons about whom the witness said he was 100% sure that they were the assailant.

(4) The dock identification took place after two identification parades, conducted under proper and fair conditions, where, in one, the witness picked out a stand-in and in the other failed to identify the appellant.

(5) He had picked out, as the person responsible for the attack, Sean Paul Jenkins, a 14 to 15 year old, shortly after the incident.

[29] The foregoing circumstances were eloquent of a witness who responded to suggestions put to him on the question of identification.

[30] The trial judge had correctly directed the jury that only if they considered they could rely on the dock identification could they convict the appellant. Having regard to all the features of the case just referred to, it was senior counsel's submission that no reasonable jury could have convicted on the basis of that dock identification standing on its own. The trial judge, at page 55 of his charge, had gone on to direct the jury that they could have regard to other evidence in the case which might tend to confirm the witness's identification of the accused as being "genuine and sound". It was necessary to distinguish between whether the other evidence might provide corroboration on the one hand and whether it was capable of supporting the reliability of the witness's identification on the other hand. In the present case the strands of circumstantial evidence relied upon by the Crown, it was submitted, did not, in the first place, bear sufficiently on the question of identification and, in any event, were, of themselves, inherently weak, in the context of a fracas involving a significant number of persons and a number of assaults, which was the situation in the present case. There were, it was accepted, strands of evidence showing the appellant to have been present and involved in the fracas, but none pointing to him being involved uniquely in the separate charge of murder. The witness, John Smith, junior, husband of the deceased, in his evidence, described a scuffle taking place in his garden driveway. He did not see what happened to his wife. He saw some of those involved exit the garden gate and one of them, who had been in proximity to the deceased when she said that she had been stabbed, went to the left. He had not told the police about this person when interviewed by them. He identified the appellant (whom, as previously noted, he had previously known) as a person he had seen walking out of the gate. But he then said he should not have said this as he did not see the person well enough. All he could say was that it was a male person with dark hair and dark clothes and he had not seen his face.

[29] The appellant was seen, and heard to say by Laura Crawford, a witness who knew him and who was watching events out of her window at 19 Oronsay Road, "I need to get out of here. I have just stabbed some cunts". The witness was not sure if the appellant used the plural or the singular "cunt". She had also seen John Mooney and heard him saying, "I've done somebody too. What are you shouting about?". The appellant who gave evidence at the trial did not dispute that he was there at the stage of events Miss Crawford had described and he accepted that she may have seen him, but he denied making the comments she reported him as making. John Mooney denied making the comment attributed to him or that the appellant made remarks attributed to the appellant by Miss Crawford. That evidence, it was submitted, did not go anywhere far enough to point to the appellant being responsible for the murder.

[30] As previously noted the witness John Mooney spoke to the appellant being in possession of three knives in Mull Park as they both left the scene. In the context of a number of assaults by knives having taken place that evidence, it was submitted, did not assist the Crown with establishing to which assault the knives may have been related. There was evidence that the appellant had taken steps to evade the police, but that was not significant in itself having regard to the circumstances of the incident taken as a whole.

[31] The murder had taken place in the garden of 27 Oronsay Road. The assault on Mrs Poyner, referred to in charge 3, took place at 23 Oronsay Road. The appellant's DNA was recovered from a bottle which was found near 21 Oronsay Road. The DNA of the incriminee Sean Paul Jenkins was found outside No.23 Oronsay Road. It appeared that he had spat there. It was known that Sean Jenkins was present at the locus and that the witness Asken originally said that he was 100% sure that he was his mother's assailant. Accordingly, the DNA evidence went no distance in involving the appellant with the murder. Three persons, apart from the deceased, were known to have been stabbed during the incident - George Poyner, the witness Asken and Marie Poyner. More than one member of the mob, apart from the appellant, was identified as carrying a knife. Marie Poyner had originally identified Sean Paul Jenkins as having stabbed her, but went back on that. The appellant was identified by the witness James Smith as the person who slashed the face of Marie Poyner in the garden of No.23 Oronsay Place. When however Smith viewed a VIPER parade in 2010 he indicated that the image of Sean Paul Jenkins looked like the person who slashed his sister, but that the slasher had been older. There was evidence from John Smith, junior and Asken that the person who had stabbed the deceased had thereafter gone in a direction which would take him towards No.23 Oronsay Road. The evidence of the assailant going towards No.23 Oronsay Road was, it was said, insufficient to support Asken's evidence, as was indeed conceded by the Advocate depute in his speech to the jury. The evidence of the assailant going to No.23 Oronsay Road and the assault which took place there, in the context of a host of persons running around, including Sean Paul Jenkins, was insufficient to confirm or support the strength and quality of the identification of the appellant by Asken as the person guilty of the murder. Marie Poyner, the victim of the assault at 23 Oronsay Road said that before she herself was assaulted she had seen a man approaching the deceased, pointing to a woman and saying "That woman is my sister". The woman was Kathleen Beggs who, in fact, was the sister of the appellant. It emerged, however, at the trial, that Marie Poyner had lied on other occasions (see judge's report, para [101]) in an attempt to implicate the appellant. The Advocate depute in addressing the jury said that they could only rely on this witness's evidence to a limited extent. Marie Poyner had, it seems, known the appellant well but did not recognise him when he appeared at Airdrie Sheriff Court.

[32] The foregoing, it was submitted, was all the material that the Crown could rely upon to seek to support the dock identification. Even if all these adminicles of evidence were taken together, and looked at cumulatively, there was, it was submitted, not the necessary coherence to point to the appellant having been correctly identified by Asken as the murderer while they might point to him as being a member of the mob who had knives. That was as far as it went. The problem for the Crown was that they did not point to him being uniquely involved in the perpetration of the murder, which was the Crown's case. The circumstantial evidence in question did not make up for the serious deficiencies in the identification by Asken and provided no support for his reliability in giving that evidence. The case based on section 106(3)(b) had, it was submitted, been made out.

[33] Referring to the ground of appeal, allowed by way of amendment, senior counsel for the appellant submitted that, moreover, and in any event, the reliance by the Crown on the dock identification had rendered the appellant's trial unfair for the purposes of article 6 of ECHR. In making this submission, however, senior counsel recognised that the safeguards against the risks involved in dock identification, which were desiderated by Lord Rodger in Holland, had been put in place at the trial. The appellant was represented by experienced senior counsel. The witness was cross-examined in detail by the appellant's counsel as regards his identification evidence. The trial judge in his directions to the jury, it was accepted, went further than might be normal in warning the jury about the care that had to be taken in relation to the witness's evidence. Nonetheless, this was a case, it was submitted, where it was urged upon the jury by the Advocate depute that the witness had been very confident in his identification of the appellant in the dock. Before a jury a witness, apparently sincerely and confidently giving his evidence, could have a powerful effect on the jury. In the very special circumstances of this case, the safeguards referred to by Lord Rodger in Holland were not sufficient to render the trial fair having regard to all the circumstances.

[34] The existence of corroboration of the impugned evidence was, it was submitted, relatively neutral in judging whether or not the reliance upon the evidence in question rendered the trial unfair; see Nulty v HM Advocate 2003 SCCR 378 para [23]. In any event, the other evidence relied upon by the Crown was extremely weak and did not provide the safeguards necessary to prevent unfairness.

[35] If charge 2 fell to be quashed, then, it was submitted, by senior counsel, the conviction on charge 3 would fall also, as it had been dependent on the doctrine of mutual corroboration and, in particular, the evidence of Asken in identifying the appellant as the perpetrator of the crime libelled in charge 2. In their written case and argument the Crown accepted that Asken's evidence identifying the appellant as the assailant in charge 2 was essential to the Crown case identifying him as the perpetrator of the offence in charge 3.

[36] As regards the appellant's argument advanced on charge 1, senior counsel said that she had nothing to add to what was said in the written case and argument. She reserved the appellant's position, in the meantime, as regards the appeal against sentence.

Submissions for the Crown
[37] The Advocate depute, in reply, reaffirmed that the Crown's case in relation to charge 2 depended on the jury accepting the dock identification of the appellant by Asken as being credible and reliable. There was, moreover, evidence which placed the appellant in Oronsay Road at the time of the incident and that he was armed with a knife or knives. There was also evidence that the person who stabbed Mrs Poyner by inference had also stabbed the deceased. While the way in which the witness came to make the dock identification was unsatisfactory, he gave coherent explanations as to why he had made mistaken identifications or failed to make identifications previously. As regards his identification of Sean Paul Jenkins on the Bebo site, he explained that there was a physical resemblance between the appellant and Sean Jenkins. The witnesses Laura Crawford and James Smith had given evidence at the trial as to the resemblance between the appellant and Shaun Jenkins. He had explained what had occurred at the VIPER parade as being caused by his state of mind at that time. He gave a logical explanation under reference to the body language and movements of the appellant when he was seen by him at Airdrie Sheriff Court as to why he recognised him then, for the first time, as the assailant. There were, it was said, marked differences in what he saw at the VIPER parade and what he saw at the sheriff court. This was all material, it was submitted by the Advocate depute, that the jury were entitled to have regard to in reaching a conclusion on the witness's credibility and reliability.

[38] Apart from the evidence already referred to, there was, it was submitted, evidence which confirmed Asken's identification of the appellant in the dock. There was evidence from John Smith, junior and Asken himself that the man who had, by inference assaulted the deceased, exited the garden at 27 Oronsay Road and turned left into the direction of the garden of No.23 Oronsay Road. That evidence had to be taken together with the evidence of James Smith that, at a point in time, which must have been shortly after the fatal stabbing of the deceased in the garden of 27 Oronsay Road, the appellant had a knife or some instrument to slash the witness Marie Poyner, a short distance away in the garden of No.23 Oronsay Road. There was the evidence of Laura Crawford as to what she heard the appellant saying towards the end of the disturbance in the street which bore the inference that he had stabbed at last one person during the disturbance. There was the evidence of John Mooney that the appellant fled the scene in possession of three knives. There was evidence, conceded to be limited in its effect, of Marie Poyner that she saw a male approaching the deceased in the garden of 27 Oronsay Road and that, as he did so, he pointed to a woman known to be his sister and said, "That's my fucking sister." The foregoing, it was said, provided a coherent body of evidence which, together, pointed to the appellant being the perpetrator of the murder and which supported the dock identification. While the Crown accepted that it was open to the appeal court, in principle, to set aside a verdict of a jury on the ground that the evidence it must have relied upon was such as no reasonable jury, properly directed, could have found reliable, this was not such a case.

[39] Turning to address the appellant's case based on article 6, the Advocate depute said he had no quarrel with the principles of law that senior counsel for the appellant had sought to rely on. But it was clear that in this case all the safeguards necessary to guard against the risks inherent in dock identifications had been in place. The appellant had had experienced senior counsel acting for him throughout. His counsel pointed out in great detail, in cross-examination, and in a powerful submission to the jury, the discrepancies in Asken's evidence. Most importantly the judge's charge to the jury set out unimpeachable and full directions on the matter.

[40] For all the foregoing reasons there had been no miscarriage of justice arising from the conviction on charge 2, nor had there been an unfair trial resulting in it. The Advocate depute confirmed, however, that the Crown's position was that if the court reached the conclusion that the conviction on charge 2 fell to be quashed, it followed that the conviction on charge 3 fell to be quashed, since Asken's evidence identifying the appellant as the perpetrator of the crime libelled in charge 2 was essential for the Crown's case identifying him as the perpetrator of the crime libelled in charge 3.

[41] The position of the Crown in relation to charge 1 was, however, different. The appellant's conviction in relation to charge 1 was not dependent upon his being convicted of charges 2 and 3 for the clear reasons set out at paras [119]-[125] of the judge's Report. The written case for the appellant did not take up ground of appeal 4 and senior counsel for the appellant had not mentioned it. Grounds 1, 2, 3 and 4 of the appeal against conviction should be refused.

Decision

[42] We commence our consideration of the grounds of appeal, focused on section 106(3)(b) of the Criminal Procedure (Scotland) Act 1995, by reminding ourselves that for an appellant to succeed on this ground requires him to meet a very high test. Verdicts of juries, properly directed, are not to be readily set aside by appellate courts. This may particularly be the case where the question is focused on whether or not a witness's evidence, necessary for the conviction, is credible or reliable. We bear in mind what Lord Justice General Rodger said in King at page 341:

"As we explained at the outset, however, what we have to determine is whether the evidence of these four witnesses meant that no reasonable jury could have been satisfied beyond a reasonable doubt that the appellant murdered the deceased. In assessing their evidence, the actual jury had the advantage, which this court does not have, of having seen and heard them give that evidence. That is a consideration to which we must pay full regard (M v The Queen at p 493). We must accordingly assume that the hypothetical reasonable jury would have enjoyed the same advantage which would be relevant to the determination not merely of questions of credibility, but also questions of reliability."

We furthermore remind ourselves of what his Lordship had to say earlier in his Opinion at page 334:

"... it is not for us simply to substitute our view of that evidence for the view which the jury took. In particular, a miscarriage of justice is not identified simply because, in any given case, the members of this court might have entertained a reasonable doubt on the evidence... The words in the provision were clearly chosen to avoid any risk of that. Applying the words which Parliament has enacted, we can quash the verdict of a jury only if we are satisfied that, on the evidence led at the trial, no reasonable jury could have been satisfied beyond a reasonable doubt that the appellant was guilty."

These dicta do not go so far as to say that the appellate court should never interfere with the verdict of a jury under section 106(3)(b) when the issue is one of credibility and/or reliability of evidence which the jury must have relied upon to convict. Any such attitude would in effect place a qualification on the wording of the relevant statutory provisions which is neither there expressly, nor arises impliedly. In addition it is appropriate to bear in mind Lord Justice Clerk Gill's remarks, quoted above, from paras [30] and [35] in the AJE case. While questions of credibility and reliability are normally to be regarded as quintessentially jury question, in our system, that is not to suppose that there can never be situations where a jury's judgment of such a question simply cannot be supported on a consideration by the appellate court of what occurred at the trial. In addition, it is important to have in mind that while questions of credibility and reliability are said often to shade into each other, they are distinct concepts. A witness may come across as entirely credible but, on reflection, be held to be unreliable. A person who is credible is one who is believed. A person who is reliable is one upon whom trust and confidence can be placed. Credibility may be judged on the moment, whereas reliability may be only capable of being addressed having regard to the person's "track record", so to speak. In a particular case, the advantage the jury has in seeing and hearing a witness may be reduced, or undermined, in approaching the evidence of the witness in the context of the case as a whole in a judicial manner. Such cases will be few and far between, but to exclude the possibility of any such case would be wrong. These are views which we would have held in the absence of the Canadian material cited to us. There is always a possible risk in seeking to apply, uncritically, jurisprudence of one jurisdiction to another. But the Canadian authorities, in our judgment, provide powerful guidance in approaching the sort of questions which this appeal raises. As Lord Rodger of Earlsferry, astutely, pointed out in Holland at para 49 of his judgment:

"The potential dangers of a dock identification in these circumstances derive from aspects of human psychology which are the same in similar societies. In this respect witnesses and juries in a Scottish court are no different from witnesses and juries in, say, an English or Canadian court."

As was pointed out in the Canadian case R v Tat at para 36:

"The probative force of identification evidence is best measured by a consideration of the entire identification process which culminates with an in-court identification."

The task which the appellate court in Scotland has to carry out in an appeal under section 106(3)(b), in our judgment, is to all intents and purposes the same as falls to be carried out in Canada by reference to the relevant provisions in the Criminal Code of that country. We refer, in that respect, to what the Supreme Court of Canada said at para 40 in Binares as set out above. The language used by the court there, in our view, is reflective of what Lord Justice Clerk Gill had to say at para [35] of his Opinion in AJE. We consider, too, that the reference to juries acting judicially are entirely appropriate for our system. Juries in deciding guilt or innocence are doing so as the judges of the facts, applying the law as they have been directed. They are, in particular, told by the trial judge that they are the judges of the credibility and reliability of witnesses and their evidence. They are, in these respects, truly performing a judicial function.

[43] The Canadian courts have recognised that their jurisdiction regarding the reasonableness of jury verdict may fall to be applied in relation to verdicts based on the reliability of eyewitness evidence. The rationale for that was expressed by Docherty JA in R v Tat at para 99:

"This is to because of the well recognised potential for injustice in such cases and the suitability of the appellate review process to cases which turn primarily on the reliability of eyewitness evidence and not the credibility of the eyewitness." (emphasis added)

[44] In the present case, the starting point for our consideration is the accepted problems associated with dock identification, problems which may become all the more concerning when the witness making the identification has previously failed to identify the accused at an identification parade or parades. Whilst our law has elected to treat such evidence as being admissible (unlike what pertains in other systems), it nevertheless recognises now, by means of the standard directions given to juries, that the jury must approach their consideration of such evidence with considerable care and anxious scrutiny. In the present case the Advocate depute apparently urged upon the jury that the dock identification was made by the witness in a confident way, which he suggested should persuade them that the witness was credible and reliable. The witness may well, of course, have come across as making his identification in a confident way and this allowed them to consider that he was credible. Credible witnesses are those who appear to be telling what they consider the truth to be. But the jury had a further task to perform and that was to check in their minds the reliability of such evidence, as set against all the other evidence in the case and, in particular, the history of the witness's journey towards making the dock identification. That journey started with the circumstances of the incident itself. It occurred in the hours of darkness. It involved a significant number of persons being involved in a running battle during which a number of persons were stabbed and a number of persons were seen in possession of knives. The witness, Asken, was himself injured. It was clearly a fast-moving and confused scene. The appellant was not a person known to the witness prior to the incident. Shortly after the incident the witness informed the police that he did not consider that he could identify his mother's assailant again.

[45] The next stage in the witness's journey towards his dock identification was that in the days following the murder he was shown, together with members of his family, an image from the Bebo website. From that image he recognised within a group of persons one particular person as being his mother's assailant, that person being Sean Paul Jenkins, who was undoubtedly at the scene of the incident and was an incriminee at the trial. The witness, on seeing that person, identified him as his mother's assailant. In his report to this court the trial judge notes that the witness, in evidence, said "I recognised him. I thought he had stabbed my maw as he looked the spitting image of the guy. I told the police that." (emphasis added) The witness adopted a passage in a statement, production 73, in which he said he had got a good look at the guy who attacked his mother. As noted, in the same statement, he said, under reference to the Bebo photograph:

"I immediately recognised this person as the guy who had assaulted my mother outside our house on the morning of 31 October 2009. I am 100% positive that it is him, although now his hair is longer, his hair was cut right in in the picture." (see paras [75] to [76] of the judge's Report)

[46] A few days after the incident the witness, therefore, had made what he himself described as 100% certain identification of a person as being his mother's assailant who was not, in fact, the appellant.

[47] The next stage in the journey was the witness's attendance at the VIPER identification parade on 13 November 2009. Having considered the images, he wished to see numbers 1 and 7 again. He then identified image 1 as his mother's assailant. The person in image 7 was the incriminee Sean Paul Jenkins whom the witness had identified as the assailant some short time before, an identification of which he was 100% certain. In relation to his identification at the VIPER parade of the person shown in image 1, the witness Asken gave a statement (production 75) in which he said: "He is the guy that stabbed my mum or he's a good look-a-like." So a new, but equally confident, identification of someone other than the appellant was given by the witness shortly after the incident itself. Asken's journey continued to a further VIPER identification parade held on 10 December 2009. On this occasion, as has been noted, the identification parade featured an image of the appellant. Asken, however, did not make an identification of any of the images as being that of the assailant. He said, "I cannae recognise any of them" (judge's Report at para [69]). Accordingly, some six weeks or so after the incident, the witness was unable to identify the appellant in an identification parade as the assailant.

[48] It is well-recognised that generally anything which tends to convey to a witness that a person is suspected by the police or is charged with the offence has the effect of reducing, if not destroying, the value of the witness's identification evidence, standing on its own. That consideration brings us to the next stage in Asken's road to the dock identification of the appellant. That involved his attendance at Airdrie Sheriff Court on 16 December 2009, accompanied by his father, John Smith, junior and Marie Poyner who, of course, themselves had been heavily involved in the events of 31 October 2009. The witness accepted, in his evidence, that by this time he knew that someone called John Jenkins was in custody in relation to the events of 31 October 2009. While the appellant was at that stage charged only in relation to the assault in charge 3, there was evidence that it was the "talk of the place" that the appellant was the person responsible for the murder. In our opinion, the circumstance in which the witness made his first identification after the incident of the appellant, as being his mother's assailant, so soon after failing to pick him out at an identification parade, were such, not only to render his identification on that particular occasion virtually valueless, but cast some serious doubt on his dock identification some months later. The circumstances of the witness previously discovering that the appellant was a suspect, the appearance of the appellant in court in custody and the discussion among family members about the appellant being the man involved, before the appellant went to the police to identify the appellant as the assailant, made that identification contaminated and unreliable. It is noteworthy that the witness, who by now had on three occasions been assuring others that persons other than the appellant were identified by him as the assailant, on a 100% certain basis, was now telling the police that he was "100% sure that that's the guy that stabbed ma maw". One might suggest that a person who is 100% sure that three different persons were witnessed by him doing something for which only one person was responsible is one upon whom little or no trust or confidence can be placed. In other words, Asken's reliability, objectively judged, must be put in serious question particularly when one has to take into account, as one does, all the problems that, in any event, arise in relation to identification evidence particularly when the person identified was not known to the witness prior to the incident in question. The last occasion, as far as is known, when the witness saw the appellant, prior to his dock identification, was during the events at Airdrie Sheriff Court in December 2009. That is a particularly troubling aspect of this case. In essence, the situation was one where, to adopt the words of Alison, quoted by Lord Rodger in Holland, identification of the appellant was open to the observation that his being in that situation helped the witness to believe that he was the person, as opposed to his own memory telling him that was the man he saw on the night in question attack and, uniquely, attack his deceased mother.

[49] The difficulties which we have just identified with the reliability of the witness Asken's dock identification are, in our view, formidable. There was circumstantial evidence to corroborate the appellant as the assailant but the question, in our judgment, is whether there was evidence to remove satisfactorily those formidable difficulties and which entitled the jury to conclude that his dock identification was not only credible but reliable. We recall, again, at this stage, that both the Advocate depute and the trial judge had made it clear to the jury that they could only convict on charge 2 if they accepted the dock identification evidence. In this respect we also remind ourselves that, on more than one occasion, the trial judge referred to the jury requiring to reach the view that the dock identification was "genuine". We consider that the use of the word "genuine" may, perhaps, have introduced an unnecessary complication into the matter. With the benefit of hindsight it would have been better had the jury been directed to focus on whether they considered the dock identification to be (a) credible and (b) reliable. Having regard to the importance of these questions, in this case, it may be that more assistance, than is usual, should have been given to the jury with what was entailed in those concepts. This, however, is not an appeal based on any misdirection by the trial judge, who gave a full and careful charge to the jury.

[50] We have considered carefully all of the evidence relied upon by the Advocate depute, before us, in support of his submission that the jury would have been entitled to reach the view that, notwithstanding the history of the identification process, the dock identification by the witness could be accepted as reliable, which we have endeavoured to set out fully. Having done so, and applying our judicial experience to all the circumstances of the case, we have reached the conclusion that it was not sufficient to overcome the formidable questions in relation to the identification by the witness of the appellant so as to allow a majority of the jury to reach a conclusion that, notwithstanding those deficiencies Asken's evidence fell to be treated as reliable in identifying the appellant, beyond reasonable doubt as the only person responsible for the murder of his mother. Some of that evidence, for example that coming from John Smith, junior and Mrs Marie Poyner, emanated from persons who themselves were demonstrated to be incredible or unreliable in certain ways but, in any event, the weight of the evidence, such as it was, simply could not, in our view, overcome the severe question marks placed over Asken's reliability. In our judgment, this is one of those cases, however rare, where the jury's conclusion on reliability simply cannot be supported. Allowing for all the deference that is appropriate and due to the jury's verdict, and bearing in mind the strict limits to be placed on the application of section 106(3)(b), we have come to the clear conclusion that no reasonable jury could have concluded, beyond reasonable doubt, that the appellant was the person guilty of the crime libelled in charge 2. It follows that there has been a miscarriage of justice and the conviction on charge 2 falls to be quashed.

[51] It follows, furthermore, as the trial judge in his Report stated and the Advocate depute before us correctly, in our view, contended that, since the conviction on charge 3 was dependent on the conviction in respect of charge 2 being unimpeachable, the appellant's conviction in respect of charge 3 falls also to be quashed. We do not, in the circumstances, require to address the separate ground of appeal which attacked the convictions on charges 2 and 3 based on article 6 of the ECHR.

[52] As we noted above, senior counsel for the appellant did not seek to make oral submissions in support of ground of appeal 3 which addressed charge 1, but was content to rely on what was said, in that respect, in the written case and argument. Nothing is said in the case and argument in support of ground 4 and nothing was said by senior counsel in her submissions to us about this. We consider that ground is to be deemed to have been abandoned. In relation to ground 3, the identification evidence of the witness Asken was not crucial to the conviction on charge 1. The trial judge notes at para [120] of his Report to this court that the appellant's counsel, at trial, invited the jury to convict the appellant of part (g) of the charge and accepted that they may well find him guilty of mobbing and rioting. The trial judge records also that "she also took little issue with the appellant being guilty of parts (b) and (c) of charge 1." In the event the jury convicted on charge 1(c), (d), (e) and (g) under deletions. In his report the trial judge, at paras [119]-[125] sets out his reasons for suggesting that the jury would have been entitled to convict the appellant on charge 1 even if he had been acquitted on charges 2 and 3. We have also considered the judge's direction to the jury in relation to charge 1. We are entirely satisfied that on the basis of what the trial judge said in his report and in his charge to the jury, which was not impugned in any way before us, the jury were well entitled to reach the verdict they did in respect of charge 1. The appeal against conviction on charge 1 is accordingly refused.