APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lord Hodge Lord McEwan	[2012] HCJAC 147 Appeal No: XC85/11 OPINION OF THE LORD JUSTICE CLERK   in   APPEAL AGAINST CONVICTION   by   GEORGE BRODIE Appellant;   against   HER MAJESTY'S ADVOCATE Respondent: _______

Appellant: Shead; Drummond Miller LLP

Crown: Ms Wade, AD; Crown Agent

16 November 2012

 

The conviction

[1] On 20 December 2010 at Edinburgh High Court the appellant was convicted of the following charge:

"Between 8 September 2009 and 12 September 2009, both dates inclusive, at Marine Parade Walk; Sainsburys car park; Baldovie Road; The Royal Bank of Scotland and Ladbrokes, Albert Street; Dundee International Sports Centre car park, and City Quay, all Dundee; the A923 Coupar Angus to Dundee Road at a lay-by near Tullybaccart Farm and Muirhead; and elsewhere you ... were concerned in the supplying of a controlled drug namely Diamorphine, as specified in Part I of Schedule 2 to the aftermentioned Act to another or others in contravention of Section 4(1) of said Act; CONTRARY to the Misuse of Drugs Act 1971 Section 4(3)(b)"

[2] The appellant was tried with five co-accused. One of them, Stephen Donald, was convicted in the same terms as the appellant. Another, Andrew Sellars, pled guilty in similar terms, but with a restricted latitude.

 

The trial

[3] The case for the Crown was based on police surveillance and mobile phone records. On 9 September 2009 there was a seemingly pre-arranged meeting between Sellars and Donald at Sainsburys' car park, Dundee. On 11 September, Sellars and his partner withdrew cash from a bank. Sellars then went to the car park of the Dundee International Sports Centre (DISC). There he met the appellant and Donald, who were waiting in Donald's car. Sellars stood at the side of the car and spoke to them. Then he got into the back of the car. There was a further discussion for a few minutes. The appellant and Donald appeared to be examining something on Sellars' lap. Donald then drove off with the appellant and Sellars.

[4] Shortly after the meeting Sellars made a phone call in Ladbrokes in which he was heard by DC Sievewright to say:

"I gave the boy six grand and he was happy. I'm going to see him at seven or half seven but the boy doesn't want anyone else knowing about it so I'll be going myself."

 

[5] On the following day there was a pre-arranged meeting between the appellant, Donald and Sellars at a lay-by on the A923 Dundee to Coupar Angus Road. Before it Donald made a phone call while he was parked a short distance away. He and the appellant drove to the lay-by separately. They stood outside their cars there, conversing and watching the passing traffic. Sellars then drove up. Police officers saw Sellars at the rear of his car. It was close to the appellant's car. The boot of Sellars' car was partly open. Donald waved to Sellars and drove off towards Coupar Angus. The appellant and Sellars then drove off towards Dundee.

[6] Shortly thereafter the appellant and Sellars were stopped by the police. In the boot of Sellars' car there was heroin worth about £6,000 - £7,000. In the driver's door pocket of both cars there were latex gloves. At the appellant's home there was a foil wrap on a mantelpiece and £220 hidden inside a book in a wardrobe.

[7] There were records of numerous telephone calls and text messages that passed between Sellars, Donald and the appellant. It was clear from these records, and from the text messages in particular, that Donald and the appellant were to meet Sellars on 11 September to receive money from him and that a delivery to Sellars, arranged by the appellant, that was to be made that evening was being postponed to the afternoon of 12 September.

[8] DC Pamela Wilson observed the meeting at the DISC car park. She was not required to take part in an identification parade involving the appellant. At the trial she was asked if she could identify any of the men whom she saw in the car park. The question was not objected to. She identified the appellant. In cross-examination of DC Wilson counsel for the defence raised with her in general terms the reliability of her identification. Counsel raised the same general point in her speech; but did not make any specific point about the fact that it was a dock identification (Report, p 7).

[9] The appellant did not give evidence.

 

The judge's charge
[10] The trial judge gave specific directions on eye-witness identifications. He gave the standard warnings as to the fallibility of such identifications and the need to assess them with particular care. He suggested to the jury, in accordance with good practice, how they should approach that evidence (Charge, pp 18-20). He did not give specific directions regarding dock identifications.

[11] When summarising the Crown case against the appellant, the trial judge referred to "the overheard phone call in Ladbrokes;" but he did not direct the jury as to the evidential significance of that phone call so far as it related to the appellant.

 

The grounds of appeal

[12] Leave to appeal has been granted only on grounds 2 and 3. Ground 2(a), supported by a devolution minute, is to the effect that the act of the Lord Advocate in leading the evidence of the dock identification by DC Wilson and in seeking a conviction in reliance on it was an infringement of the appellant's rights under article 6. Ground 2(b) is to the effect that the trial judge misdirected the jury by failing to direct them on the specific dangers of dock identification. Ground 3 is that the trial judge misdirected the jury in failing to direct them that what Sellars said in the Ladbrokes phone call about paying someone six grand was not evidence against the appellant.

[13] In the event, counsel for the appellant disclaimed any argument that a dock identification, or the prosecutor's reliance on it, infringed article 6 per se. His position, as I understood it, was that because there had been a dock identification, it was necessary for the trial judge to give specific directions on the point. If I am right in my understanding of the argument, it follows that on that issue no question arises under section 57 of the Scotland Act 1998.

Conclusions

Dock identification of the appellant

Submissions for the appellant

[14] Counsel for the appellant submitted that the trial judge should have given a direction on dock identification of the kind contemplated in Holland v HM Adv (2005 SCCR 417). In Holland the witness who identified the accused in court had failed to identify him at an identification parade. Counsel for the appellant submitted that the present case was more extreme because, as in Tido v The Queen ([2011] UKPC 16), there had been no identification parade at all. The trial judge should have given a direction as to the dangers of dock identification in such circumstances. Without that, the standard directions on eye-witness identification were inadequate (Pipersburgh v The Queen [2008] UKPC 11, paras [9]-[18]). The trial judge should also have directed the jury, in the terms set out in Tido v The Queen (supra, at para 26), to consider what potential advantage the appellant might have lost through the lack of an identification parade.

 

Scottish practice

[15] The Judicial Committee of the Privy Council has recognised that the legal principles affecting dock identifications differ in Scotland from those that apply in England and Wales (Tido v The Queen, supra, at para 22). It is a longstanding rule of Scots law that an eye-witness who describes the perpetrator of a crime should be asked if he sees that person in the court. If he does, he should be asked to point him out (Murphy v HM Adv 2007 SCCR 532, para [90]). Dock identification evidence is not per se inadmissible; nor is it an infringement of the accused's rights under article 6 (Holland v HM Adv 2005 SCCR (PC) 417, paras 5, 41, and 57) except perhaps in an extreme case (ibid, para 57). A dock identification is not made inadmissible by the fact that the witness has not made a previous identification (Pop v The Queen [2003] UKPC 40). Dock identification evidence is held to be admissible partly because of safeguards such as the judge's directions (para 58) and the requirement of corroboration (para 57; cf Scott v The Queen [1989] AC 1242, Lord Griffiths at p 1261).

 

Holland v HM Adv

[16] Counsel for the appellant submitted that since this ground of appeal was founded on article 6, the question was whether the appellant was deprived of a fair trial in all the circumstances of the case (Holland v HM Adv, supra, at paras 5, 39 and 41).

[17] I agree with the submission of the advocate depute that in Holland v HM Adv (supra) it was not dock identification alone that resulted in the finding that the trial had been unfair. It was a combination of factors. The witness who made the identification had failed to identify the appellant at an identification parade. The Crown had failed to disclose certain information that would have been helpful to the defence in undermining the reliability of the dock identification (ibid, para 85). These special features were not present in this case. The question was whether the man whom DC Wilson identified in the court was the man whom she saw in the car park.

 

The trial judge's directions
[18] The trial judge's general direction as to the dangers inherent in an eye-witness identification was entirely appropriate. The terms in which he gave it cannot be faulted. But although counsel for the defence did not expressly raise the issue, I think that the trial judge should have given a specific direction on the question of dock identification. In my opinion, in the light of Holland v HM Adv (supra, para 58) and the references to it by the Judicial Committee in Pipersburgh v The Queen (2006 PC Appeal No 96, para 15), an express direction on the point is desirable wherever there is a dock identification without there having been an identification parade. I consider that the trial judge's failure to give such a direction constituted a misdirection.

 

What should the direction be?
[19] The question then is: what should the trial judge have said? In my opinion, it would have been sufficient in this case if the trial judge had pointed out to the jury that the person whom DC Wilson said that she saw in the car park was not someone whom she knew; that a period of over 15 months had elapsed between the date of that sighting and her identification of the appellant in the dock; and that she had not taken part in a formal identification parade. The trial judge should have directed the jury that a dock identification lacked the safeguards inherent in an identification parade, where the presence of stand-ins of similar build and height can give some objective support to the reliability of an identification of the accused. The trial judge should then have directed the jury to bear in mind that when the appellant was identified by DC Wilson he was sitting in the dock of the court between two custodial officers (Holland v HM Adv, supra, para 47). Finally, he should have directed the jury that it was entirely a matter for them to decide whether these considerations gave them any cause to doubt the reliability of the identification that DC Wilson had made.

 

A Tido direction

[20] The submission of counsel for the appellant went further than Holland v HM Adv requires. He submitted that the trial judge should also have given a direction in terms of Tido v The Queen (supra, paras 21 and 26); that is to say, he should have told the jury that the possibility of an inconclusive result to an identification parade, if one had been held, could have been deployed on the appellant's behalf to cast doubt on the accuracy of any subsequent identification (ibid, para 21).

[21] A direction of this kind has its origins in the decision of the Judicial Committee in Pop v The Queen ([2003] UKPC 40, para [9]). In Holland v HM Adv (supra), the Judicial Committee, while recognising the need for specific directions on dock identification, did not suggest that those should include all of the directions given in Pop; and, in particular, did not suggest that in a Scottish trial the jury should be directed to consider what the outcome of an identification parade might have been if one had been held.

[22] Pipersburgh v The Queen (supra) was a case where there had been no identification parade. In that case Lord Rodger of Earlsferry referred to Holland v HM Adv (para 15). He considered that the standard direction on the fallibility of identification evidence was not enough where "the identifications were dock identifications without a prior identification parade." He then referred to a further statement in Holland about the disadvantages of a dock identification (para 16) and commented that the trial judge had not pointed out that the accused had thereby lost the potential advantage of an inconclusive identification parade.

[23] The advocate depute submitted that the directions proposed on behalf of the appellant and borrowed from Pipersburgh and Tido are not obligatory in a Scottish court; and that in the other jurisdictions from which those cases came the holding of an identification parade was the normal procedure. In those jurisdictions, therefore, reliance on a dock identification alone was a deviation from that procedure.

[24] In my opinion, nothing in Pop v The Queen (supra) or Piperburgh v The Queen (supra), or in Tido v The Queen ([2011] UKPC 16) which has followed those decisions, obliges a trial judge in Scotland to give a direction of the kind proposed by counsel for the appellant. The need for such a direction was prescribed in Pop v The Queen (supra) and in Tido v The Queen (supra) in the context of criminal evidence and procedure in Belize and in the Bahamas respectively where, it appears, a failure to hold an identification parade is contrary to proper practice. The dicta in those cases were not directed to criminal procedure in Scotland.

[25] Furthermore, I consider that a direction of that kind in a Scottish trial would be inappropriate and unhelpful. For many years every trial judge in Scotland has directed the jury at the outset of the charge that they must decide the case on the evidence alone and must not engage in speculation. That is a wise and necessary direction that should invariably be given. It would be regrettable, in my view, if a trial judge in Scotland had to make an exception to that direction in a case such as this by inviting the jury to speculate as to what might have happened if the identifying witness had taken part in an identification parade. Speculation of that kind is contrary to our traditional understanding of the jury's function in a criminal trial.

 

The evidence of Sellars' phone call

[26] Counsel for the appellant submitted that this evidence was evidence against Sellars only; that there was no doctrine of concert in cases under section 4(3)(b) of the Misuse of Drugs Act 1971; and that the jury should have been directed to disregard this evidence in their consideration of the case against the appellant.

[27] The trial judge says that in his view what Sellars said in the phone call was circumstantial evidence tending to show that Sellars was involved in a drug-supplying operation along with others. He did not regard the phone call as incriminating the appellant at all; but if the phone call was to be so regarded, he considered that the suggested direction was not called for. There was compelling evidence entitling the jury to conclude that the appellant, Sellars and Donald were working together in a drug supplying operation. If the jury accepted that there was such a joint enterprise, the existence of that common criminal purpose permitted the full use against the appellant and Donald of what Sellars was overheard to say.

[28] To convict the appellant the jury, in my view, had to be satisfied that there was a drug-supplying operation and that the appellant was knowingly involved in it (Clark v HM Adv 2002 SCCR 675, paras [12]-[14]). If there was evidence that others were involved in such an operation, the appellant's association with them at the relevant time could justify the inference that he was actively concerned in it (Clark v HM Adv, supra, para [14]). It follows therefore that if the evidence of the phone call, when taken with other evidence for the Crown, justified the inference that Sellars was involved in the operation - a point that was not disputed by counsel for the appellant - it could also point to the appellant's involvement in it in the light of his association with Sellars at that time. It would therefore have been a misdirection if the trial judge had directed the jury to disregard that evidence altogether so far as it affected the appellant.

[29] However, the Crown concedes that the trial judge should have directed the jury that the evidence of the phone call was not evidence against the appellant to show that he was the person to whom Sellars gave the money or was the person whom Sellars was to meet. That concession, in my view, is rightly made. The trial judge ought to have directed the jury explicitly to that effect. The lack of such a direction, in my view, constituted a misdirection.

 

Fair trial and miscarriage of justice
[30] On the view that I have taken on the two issues in this appeal, the question arises whether there has been a misdirection in either case which is fatal to the conviction.

[31] Counsel for the appellant submitted that in relation to the misdirection on dock identification the issue was whether the appellant had had a fair trial, the test of which was whether, but for the infringement of the appellant's article 6 rights, there was a real possibility that the jury would have reached a different verdict (McInnes v HM Adv (2010 SC (UKSC) 28, paras 24, 30, 35 and 38). He then took that submission a step further by suggesting that we should apply the McInnes test in relation to both misdirections.

 

The significance of the dock identification
[32] I am not persuaded that the dock identification question raises a true issue under section 57 of the Scotland Act 1998. In any event, counsel for the appellant abandoned his case under article 6. In my view, the real point is one of misdirection. On that view, we have to apply section 106(3) of the Criminal Procedure (Scotland) 1995 Act and decide whether there was a miscarriage of justice. We have to consider this question in the light of the whole evidence against the appellant. We should therefore start with the concession made by counsel for the appellant, which was plainly well founded, that even without the evidence of the dock identification there was a sufficient circumstantial case against the appellant. I have summarised the evidence against the appellant. In my opinion, it was not only sufficient, it was compelling. It was not disputed by the defence that the evidence pointed to the existence of a drug-supplying operation. Even if one disregarded the identification of the appellant by DC Wilson, the other evidence amply warranted the inference that the appellant was the third man in the car park on 11 September. But that hardly matters. The evidence relating to the text messages and the meeting at the lay-by on 12 September was sufficient in itself to warrant the conclusion that the appellant was concerned in the drug-supplying operation. The identification of the appellant by DC Wilson was entirely peripheral. In my opinion, the lack of a specific warning about the dangers of dock identification made no difference. There was no realistic possibility that the jury would have returned a different verdict had such a warning been given.

 

Misdirection on the Sellars phone call
[33] In light of the evidence that I have summarised, I consider that the misdirection on this point did not result in a miscarriage of justice.

 

Should there be a single test?

[34] In Fraser v HM Adv (2011 SC (UKSC) 113), Lord Hope of Craighead acknowledged that the test applied by the Supreme Court in appeals from Scotland under article 6 was different from that which this court applies in our domestic criminal law. In that case the Supreme Court recognised that in appeals that do not raise a devolution issue the test that is to be applied is exclusively a matter for this court (para [29]). Lord Hope expressed the wish that this court might "find it possible to resolve the differences of view that have emerged as to the use that may be made of the McInnes test" (ibid; cf McInnes v HM Adv 2010 SC (UKSC) 20). With those words in mind, counsel for the appellant submitted that from now on this court should apply the McInnes test when considering the criterion of miscarriage of justice in all appeals under the 1995 Act.

[35] In my opinion, we should not adopt counsel's proposal. It overlooks the difference in nature between the guarantees contained in article 6 of the Convention and the right of appeal conferred by section 106 of the Criminal Procedure (Scotland) Act 1995 (the 1995 Act).

[36] Article 6 guarantees certain minimum procedural rights. It is not concerned with the substance of the court's verdict. It does not confer a right to challenge a verdict on the basis that it is perverse or that new evidence has come to light. Under the 1995 Act, an accused may appeal on the basis of any alleged "miscarriage of justice." Appeals on the basis of fresh evidence or the perversity of the verdict are specified in section 106(3) as two examples of this broad concept; but it can be invoked in many other situations, substantive and procedural, where section 57 of the Scotland Act 1998 would not apply.

[37] The concept of miscarriage of justice is an inherently adaptable one which is always applied in the circumstances of the individual case. It has been applied flexibly from the outset. The general right of appeal conferred by section 60 of the Summary Jurisdiction (Scotland) Act 1908 was qualified by section 75 which provided that a conviction should not be quashed except for incompetency, corruption, malice or oppression or:

"unless the High Court shall be of the opinion that the accused has been misled as to the true nature of the charge against him or been prejudiced in his defence on the merits, and that a miscarriage of justice has resulted thereby ... "

 

[38] The case law under that provision demonstrates the variety of circumstances in which the question of a possible miscarriage of justice arose (eg Winning v Torrance 1928 JC 79 (evidence improperly excluded); Cameron v Waugh 1937 JC 5 (evidence led of a crime not charged); Brown v McPherson 1918 JC 3; Waddell v Kinnaird 1922 JC 40; Wade v Robertson 1948 JC 117 (incriminating statements wrongly admitted)).

[39] The right of appeal in solemn procedure conferred by the Criminal Appeal (Scotland) Act 1926 was subject to the proviso that the court could dismiss the appeal if it considered that no substantial miscarriage of justice had occurred (s 2(1)). The court rarely applied the proviso where there had been a misdirection (McKenzie v HM Adv 1959 JC 32). The Thomson Committee knew of only seven cases in which it had been applied (Criminal Appeals in Scotland (First Report) Cmnd 5038 (1972), para 37). By contrast, fresh evidence appeals were generally refused unless the new evidence would clearly have led to an acquittal (cf Gallacher v HM Adv 1951 JC 45).

[40] One of the main themes in the evidence given to the Sutherland Committee (Criminal Appeals and Alleged Miscarriages of Justice, 1996) was that there should be a flexible criterion for criminal appeals (para 2.21). The Committee concluded that the concept of "miscarriage of justice" gave suitable flexibility (para 2.22), being capable of adaptation and development to meet contemporary understandings of justice. The Committee thought that the classic example was Anderson v HM Adv (1996 JC 29), where the court held that defective representation could found a plea of miscarriage of justice (para 2.25).

[41] The Committee's recommendation on the point is reflected in the present sections 106 and 175 of the 1995 Act, for solemn and summary proceedings respectively, which leave it to the court to apply the test of miscarriage of justice to the circumstances of each case (Fraser v HM Adv supra, at para [27]).

[42] The case law on section 106 demonstrates the wide range of circumstances in which the question of miscarriage of justice may arise. For example, in some cases the court has to assess whether, notwithstanding some procedural error or technical misdirection, the trial as a whole was fair. In other cases, although the trial was conducted with scrupulous fairness, the court has to assess whether evidence that has since come to light shows that the verdict was a miscarriage of justice (eg Campbell v HM Adv 2004 SLT 397). In the application of the test of miscarriage of justice, the court takes an overall view of the circumstances. In doing so, it may apply stricter standards over time. I think that it is unlikely that the court would nowadays take the approach to misdirection that it took half a century ago (cf McPhelim v HM Adv 1960 JC 17). In my view, this flexibility of approach is one of the strengths of our system. The McInnes test, created in the narrower context of devolution issues, may not have the same flexibility.

[43] In my experience, the existence of the two tests causes no difficulty in practice. While they are different in their wording, they are generally similar in their application. This court can apply the McInnes test in a discriminating way as the occasion should require. In my view, these separate tests usefully highlight the difference, emphasised by Lord Hope of Craighead, between the jurisdiction of this court and that of the Supreme Court in criminal matters (HM Adv v Jude 2011 SC (UKSC) 55, para [29]).

Disposal

[44] I propose to your Lordships that we should refuse the appeal.

 

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lord Hodge Lord McEwan	[2012] HCJAC 147 Appeal No: XC85/11 OPINION OF LORD HODGE in   APPEAL AGAINST CONVICTION   by   GEORGE BRODIE Appellant;   against   HER MAJESTY'S ADVOCATE Respondent: _______

Appellant: Shead; Drummond Miller LLP

Crown: Ms Wade, AD; Crown Agent

 

16 November 2012

[45] I agree that for the reasons which your Lordship in the chair has given the two misdirections did not give rise to a miscarriage of justice and that this appeal should be refused.

[46] As counsel for the appellant raised an issue of general importance by submitting that this court should now apply the McInnes test as the criterion of miscarriage of justice in all appeals under the 1995 Act, I comment briefly on that proposition.

[47] I agree with your Lordship that we should not give effect to that submission. I have reached this view for the following four reasons.

[48] First, the concept of miscarriage of justice offers protection to an accused beyond the requirements of an impartial court, a public hearing and fair rules of evidence which Article 6(1) of the European Convention imposes and the procedural rights which it and sub-paragraph (3) of Article 6 confer in order to achieve a fair trial. Article 6 does not address the substance of the verdict of the court or a jury. A trial may be fair but the verdict open to challenge as a miscarriage of justice, for example, where the verdict is not supported by the evidence or where new evidence is discovered which calls that verdict into question.

[49] Secondly, as your Lordship has discussed in paragraphs [37]-[42], the history of the use of the concept of miscarriage of justice demonstrates that the court has applied it flexibly by showing a greater readiness to overturn a verdict in response to certain problems than others in order to achieve justice as it was perceived at a particular time.

[50] Thirdly, when the statutory ground of appeal was last examined - by the Sutherland Committee between 1994 and 1996 - the flexibility of the single, broadly stated ground of appeal was seen as a virtue because it was "capable of adaptation and development to meet contemporary understandings of justice in criminal appeals" (para 2.25). Parliament accepted the Committee's recommendations in its amendments to sections 106(3) and 175(5) of the 1995 Act. It appears to me that if the court were to adopt a test to cover all circumstances of miscarriage of justice that would militate against the flexibility which has been recognised as a virtue of the concept.

[51] Finally, a significant departure from established practice of this nature would require not only much more detailed argument than that which we heard but also a larger bench of judges. This court would have to consider with care arguments that it should in the interests of coherence apply the McInnes test in all circumstances whether or not there are alleged violations of Article 6 rights. It may be that there are circumstances in which the test might advance coherence. But there are others in which it would not be appropriate and would introduce an undesirable inflexibility if it were to be the sole test of a miscarriage of justice.

 

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerkl Lord Hodge Lord McEwan	[2012] HCJAC 147 Appeal No: XC85/11 OPINION OF LORD McEWAN   in   APPEAL AGAINST CONVICTION   by   GEORGE BRODIE Appellant;   against   HER MAJESTY'S ADVOCATE Respondent: _______

Appellant: Shead; Drummond Miller LLP

Crown: Ms Wade, AD; Crown Agent

 

16 November 2012

[52] I agree entirely with your Lordship in the chair and have nothing further to add.