Appellant: Meehan; McCusker McElroy, Paisley

Respondent: Gilchrist QC, AD, the Crown Agent

28 March 2012

[1] On 15 July 2011, at Paisley Sheriff Court, the appellant was convicted of assaulting Louise McKenna, on 6 February 2011, by repeatedly punching her to the face to her injury on Brown Street.

[2] The evidence consisted of the testimony from two community safety officers, namely John Brown and Natalie Hendren, who had been on mobile patrol and who had witnessed the assault, after which the assailant had approached them and asked what it had to do with them. The police were summoned to the scene. The issue in this appeal is a straightforward one of whether there was sufficient evidence to identify the appellant as the perpetrator. The complainer did not give evidence.

[3] The evidence of identification took the form of three sources. First, one of the community safety officers (Hendren) positively identified the appellant as being the person she had seen assaulting the complainer. She could not recall whether the appellant had been arrested at the time. Secondly, the other officer (Brown), whilst unable to identify the appellant, said that the assailant had been a person arrested by the police at the time. He described the assailant as being aged in his late 20s or early 30s, thin and balding, white in ethnic origin and 5' 7" to 5' 8" in height. The third source was a police officer, Constable Stirling, who positively identified the appellant as one of three persons arrested by him at the time on the scene.

[4] In a helpful written case and argument supplemented by oral submission, it was contended that, notwithstanding the dictum in Ralston v HM Advocate 1987 SCCR 467 (LJG (Emslie) at 472) that, where there is one positive identification, very little else is required, there was insufficient evidence to corroborate the testimony of officer Hendren identifying the appellant as the assailant. The submission was made under reference to passages in Renton & Brown: Criminal Procedure (6^th Loose‑leaf Edition) (para 24 - 73) and by analogy to the approach taken by the courts to evidence relative to the contents of a video recording and the restriction on a jury forming its own view of what might be shown in the reproduced images. The particular point, which was focussed, was whether the Sheriff had been entitled to hold that the description, which officer Brown had given, matched that of the appellant as he appeared to the sheriff in court. It was said that it was illegitimate for the sheriff to undertake his own comparison without a description having been spoken to by a witness of the appearance of the appellant in court. Reference was made by the appellant to Mair v HM Advocate 1997 SCCR 44, which, it was acknowledged, was perhaps against the submission which had been made. In response the advocate depute essentially accepted the force of the appellant's submission and the analysis upon which it proceeded. He indicated that the Crown were not seeking to support the conviction.

[5] The starting point in a case such as this remains the dictum of the Lord Justice General in Ralston v HM Advocate (supra) that, where there is one clear positive identification of the perpetrator of a crime, "very little else is required". Just what that very little else may be in a particular case is a question of fact and circumstance.

[6] The first circumstance is that officer Brown said that the assailant had been arrested at the scene at the time and Constable Stirling had positively identified the appellant as one of three persons so arrested. The second circumstance is that officer Brown described the assailant in the terms already noted. This is a description which could readily be seen to match the physical features, age and appearance of the appellant in court, according to the Sheriff. In Mair v HM Advocate (supra) there had been one positive identification of the appellant and the trial judge (Lord Rodger) had directed the jury that this evidence could be corroborated by the testimony of one or other of two witness, and in particular, simply by the evidence of a witness Ferguson. Ferguson had made no identification, even by way of resemblance, but had been able to describe the perpetrator by reference to his age, hair colour, height and the size of his nose. In his report to the appeal court, the trial judge narrated, that, (p 49):

"It was a matter for the jury, who could see the accused, whether someone who did not know him might have described him as being in his mid‑twenties. Miss Ferguson said that the man did have a large nose. The jury could see the accused for themselves and decide whether his nose could be described as large. Miss Lang said that he had a broken nose and the accused admitted this. Clearly Miss Lang had seen something unusual about the accused's nose and it seemed to me that Miss Ferguson had also noted something unusual about the man's nose - which she had related to its size. I consider that Miss Ferguson's evidence could corroborate the very positive identifications of either of the other ladies, but that this was a matter for the jury and I warned them to take into account both any similarities and any dissimilarities".

In his submission to the court in that case the advocate depute is quoted (at p 49) as follows:

"...the trial judge was well founded in directing the jury that, in assessing whether Lynn Ferguson was actually describing the appellant, they were entitled to have regard to any similarities and dissimilarities between the appellant and the man whom Lynn Ferguson described. In other words, the jury were entitled to rely on what they could see of the appellant themselves".

The court, chaired by the Lord Justice‑Clerk (Ross), accepted the analysis of the advocate depute and the correctness of the trial judge's directions. The Lord Justice‑Clerk continued as follows (at p 50):

"In any event, the jury could see the appellant for themselves and, having regard to the description of the assailant given by Lynn Ferguson, they were entitled to be satisfied that in her evidence Lynn Ferguson was actually describing the appellant and that her evidence then provided the necessary corroboration".

[7] This court accepts, as it is bound to do, this analysis by the Lord Justice‑Clerk, following that of the trial judge. The sheriff or jury in a given case is entitled to take the view that an accused person identified by a witness in court has the obvious characteristics that can then be seen without the need for a specific oral description of them by the witness. Having regard to the analysis in Mair v HM Advocate (supra), the primary identifications by officer Hendren and constable Stirling carried with them that implication. The description by officer Brown, coincident with the appellant's appearance as seen in court, was capable of corroborating the evidence of officer Hendren especially when coupled with the evidence of the constable arresting the appellant at the scene. The court will accordingly answer the questions in the stated case in the affirmative and refuse this appeal.