APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lord Brodie Lord Marnoch	[2013] HCJAC 51 XC559/12   OPINION OF THE COURT   delivered by LORD CARLOWAY, the LORD JUSTICE CLERK   in   APPEAL AGAINST CONVICTION FOLLOWING A REFERENCE FROM THE SCOTTISH CRIMINAL CASES REVIEW COMMISSION   by   WILLIAM McKENNA BECK   Appellant;   against   HER MAJESTY'S ADVOCATE   Respondent: _____________

Appellant: A Kelly, solicitor advocate, Lawrie; John Pryde & Co

Respondent: AF Stewart QC, AD; the Crown Agent

 

30 April 2013

1 General
[1] On 30 March 1982, at the High Court in Edinburgh, the appellant was convicted by majority verdicts of the theft of a car from the Broomielaw in Glasgow on 12 December 1981 and a robbery at the Safeway Supermarket in Livingston later that day, involving striking two post office workers with hammers and relieving them of bags containing some £21,000 in cash. A social enquiry report had been obtained. This revealed that the appellant had only been at liberty since June 1981, following his release from a 15 month sentence for theft by housebreaking. He had other convictions for dishonesty and violence. Although a native of Castlemilk, the appellant had spent some of his youth living in Whitburn. The appellant was sentenced to six years' imprisonment. He appealed against his conviction (see infra), but that appeal was refused on 7 October 1982. No written opinion was issued.

[2] The report from the trial judge (Lord Dunpark), who is long since deceased, is in short compass. This is understandable, having regard to the very limited grounds of appeal initially advanced (infra). Having described the appeal as "unstateable", it records the following:

"A number of witnesses spoke to the two robbers running away in a certain direction and getting into a car. The evidence culminated in the positive identification by two witnesses, PC [M] and [KA], of the accused as the driver of this car. My narration of the relevant evidence is contained on pages 14A to 22C [of the charge]".

 

It is important to observe, in limine, that there is, and can be, no analysis of the present grounds of appeal, which are different from those originally proffered, by the trial judge. In any case, the court will regard the trial judge's analysis as an important consideration in determining whether a miscarriage of justice has occurred. It is of particular importance in a case such as this. By reason of the passage of time there is, and can be, no official record of the evidence adduced or speeches made at the appellant's trial. The evidence was originally recorded in shorthand, but the notes have been destroyed after being retained for ten years. The expedient of resorting to a transcription, where necessary to supplement the trial judge's report, in order to determine whether a miscarriage of justice has occurred is not available. Although there were some, relatively cursory, notes said to have been taken by the appellant's solicitor at the trial, these were not referred to at the appeal hearing and it was not suggested that the court ought to attempt to recreate the testimony given at the trial from these notes.

[3] The judge's charge, which was extended at the time of the original appeal, gives a reasonably clear summary of the testimony given in the context of the critical issue of identification. However, it is indeed a summary and it is impossible for the court to gauge the strengths and weaknesses of the testimony in anything like the manner open to the jury who heard it over what was a two day trial.

 

2 The Testimony at Trial

[4] The trial judge commenced his summary of the identification evidence by referring to the accounts given by the two postal workers who, he said, had not "got a decent look" at the robbers. One of the postal officers, namely WH, had been unable to identify anyone positively at an identification parade. However, when he was asked at the parade the standard question whether there was anyone who resembled the robbers, he had picked out the appellant. He had said that he had seen the robber's face, his eyes and eyebrows, nose and mouth and part of his chin. At the trial, he said that he thought that the robber was the appellant. The trial judge had asked him why he had come to that conclusion, and he had responded "just a feeling I had". The trial judge commented to the jury that this "is really not very satisfactory evidence to go on".

[5] The second post office worker had said that he had not seen the faces of either of the robbers. He made no identification. However, he did say that one of the robbers had been wearing a dark anorak-type jacket, which he identified as similar to a dark blue anorak recovered from the appellant. The trial judge then commented that there are "any number of these anoraks about".

[6] A young female, namely MT, had seen the robbers running away from Safeway past a bus stop and down a path towards Raeburn Rigg, but there is no mention in the charge of her having identified anyone. Also observing the robbers running away in this direction were a couple, TC and AC. Mrs C, who was a school teacher, picked out the appellant at an identification parade as looking similar to one of the men. She had been shown a photograph of the appellant prior to the identification parade but it is not clear if this was one of several photographs or indeed whether she had picked out the appellant from a photograph. At the parade, she had said that she was not sure if either of the men were present. She had then picked out the appellant, on a resemblance basis, saying that the reason was: "It is his hair". There is no record of Mr C identifying anyone. The trial judge made another comment at this point that the identifications could "hardly be said to be positive, but that's not all". He noted that Mr C had seen one man getting into what was to be the getaway car, parked in Raeburn Rigg. A peculiarity of the trial judge's phraseology is that he said that Mr C had seen the man getting into the driver's seat "after the driver was in the car"; a remark which does not now make sense.

The next witness was SC, who pursued the robbers down the path and then chased the getaway blue Ford Granada in his own car. He identified a stand-in (described by the appellant's trial counsel as the "wrong man") at the parade. The trial judge again made another general comment; this time about the jury not yet having "satisfactory evidence" of identification. He then proceeded to deal with where he thought the jury might find "that" evidence.

[7] PC NM had been off duty when he observed the two robbers running down the path away from the supermarket and into the car. Once the robbers had entered the car "the driver let his hood down". He was 18 to 20 feet away and had a look at the people in the car. He identified the appellant as the driver, having then seen his face. The car drove away past him and he noted the registration number. This was then a positive identification of the appellant.

[8] Another witness, KA, had been with SC and the two had initially followed the men together, before splitting up to cover different avenues of, presumably, escape. Mr A had gone to a roundabout at the other end of the Rigg and had seen the Granada coming towards him. He said that he had got "a good look at the driver, who had nothing on his head". He too positively identified the appellant as the driver. Having thus narrated the essentials of the evidence of PC M and Mr A, the judge made a further comment to the jury that:

"... there you have two positive identifications for your careful consideration as to whether they are accurate that the accused was one of the two men who had started assaulting the postman and finished up driving away in this car".

 

[9] The degree to which the positive identifications were challenged head-on at the trial is unclear. Certainly, according to the terms of the charge, the appellant's counsel referred to discrepancies between the accounts given by some of the witnesses about whether the robbers had been wearing balaclavas or just hoods. He also made some play of differing accounts, from PC M, Mr A and others, on the speed of the getaway car. However, it appears that the extent of any challenge to the positive identifications was focused on those types of discrepancy rather than any contention that the witnesses were mistaken on the basis that they had not seen the robbers for sufficient time to enable them reliably to identify the appellant in the dock. Presumably, therefore, there was no basis, or at least no safe basis, upon which to launch such an attack. No doubt had such an attack been made on the dock identifications, this would have opened up a line for the Crown to adduce whatever evidence they had of prior identifications, at parades or otherwise, by these two apparently independent witnesses.

[10] Set against the evidence of identification was testimony by certain witnesses which supported, to one degree or another, the appellant's alibi that, at the material time, he had been in Glasgow with his girlfriend LM. The robbery had occurred at about 3.45pm. The getaway car had been dumped at Kirkliston. It does not seem to have been disputed that the appellant was back in Glasgow by at least 6 pm, having taken a bus from the city centre towards his home in Castlemilk. What is left uncertain is what evidence there was about his presence in Glasgow earlier in the day.

[11] The judge directed the jury that the only person who had been with the appellant for the period 1 to 6 pm had been LM and that there was no evidence that anyone, apart from LM, had seen the appellant during this period. That much is clear. It is consistent with the judge's account of a witness, namely MW, saying that she had been working until about 6 pm and had boarded a bus at 6.05 at Eglinton Toll, which is a stop en route to Castlemilk from where the appellant said he boarded the bus (St Enoch Square). Having referred to this evidence, the judge directed the jury that there was evidence that the appellant "got on this bus slightly before 5". However, it seems that either this is an error in transcription or that he meant to say "shortly before 6". He then stated:

"You have certainly got some witnesses, the girl [G] I think thought she had got on the bus between 5.15 and 5.30, and [AM] thought between 5.30 and 6.00, and Mrs [H] thought it was sometime after 5.00, it could have been after 6.00 when they reached Holmbyre Road [ie Castlemilk]."

 

This does not all make immediate sense.

[12] However, with the original appeal papers is the detailed Notice lodged by the appellant. This reveals that the appellant only contended that he joined the bus queue at St Enoch Bus Station sometime "between 5.30 pm and 6 pm". He said that he was seen in the queue by, amongst others, MG (the girl [G]) and AM. They also boarded the bus as did, at some point, MW. NH (Mrs [H]) only spoke to events after the appellant had disembarked in Castlemilk some time around 6.00 pm. From this it can be seen that "the girl [G]"'s evidence was inconsistent with the appellant's alibi, which only commenced, so far as the bus queue was concerned, at 5.30 at the earliest. Discounting it for that reason, AM's evidence supported the alibi in so far as it placed the appellant at the bus station but only at some time between 5.30 and 6.00 pm. MW's evidence pointed to the time being nearer 6.00 pm than earlier. The reference to Mrs H stating that she could have seen the appellant "after 6.00" is actually a correction of the words "sometime after 5.00". Put another way, in terms of the alibi, she had seen him in Castlemilk after 6.00 pm. Whether this is accurate or not, the jury had heard the appellant and some of the alibi witnesses on the day of the charge, and would, no doubt, have been clear on what had been said. The alibi evidence, whatever it was, was plainly before the jury for their consideration.

 

3 The charge to the jury
[13] The trial judge commenced his charge by stressing that the evidence was wholly within the jury's province and that "All questions of fact are for you". At a later stage, but before he dealt specifically with the identification evidence, he told the jury that they were free to disregard any comment that he made upon the evidence or the witnesses as they thought fit and that it was their recollection of the evidence which counted.

[14] The judge directed the jury that the standard of proof, which the Crown required to reach, was "beyond reasonable doubt". He stressed that the jury could not convict the appellant unless they were satisfied, beyond reasonable doubt, of his guilt. He continued, however, as follows:

"...reasonable doubt just means what it says. It is a real doubt, not a remote possibility, and I usually put it this way - I don't know whether it helps or not - that for a verdict of guilty you need not be absolutely certain of guilt, and I emphasise not absolutely certain, but you must be reasonably certain because if you are not reasonably certain then you will have a reasonable doubt.

 

If I later use such phrases in my address to you such as 'are you satisfied?', or 'has the Crown proved?' or 'has the Crown satisfied you?', or phrases of that nature, you must take them all as qualified by the words 'beyond reasonable doubt'".

 

In due course, he repeated the need to be satisfied beyond reasonable doubt on several occasions. This occurred specifically when dealing with the evidence of the appellant and his witnesses about the alibi.

[15] In relation to identification evidence, the trial judge stated that:

"... identification evidence is as you will no doubt realise notoriously difficult, easy to make a mistake if you only get a fleeting glimpse of someone. So you have to examine all the identification evidence in this case with care, and you have to accept as accurate identification by more than one witness before you could convict this man ...".

 

He later continued as follows:

"You can convict the accused ... provided that the whole evidence in the case leaves you without reasonable doubt that he was active participant in this raid. Of course you must examine all the evidence with great care, and in particular as I have already told you the identification evidence".

 

[16] The trial judge covered the two criticisms of the two positive identification witnesses, under reference to the content of the defence speech. He reminded the jury that whether the robbers had been wearing balaclavas or hoods may not be of central importance and that the evidence about the speed of the car had come from persons at different locations.

[17] Having finished with the Crown case, the trial judge turned again to the alibi evidence and spent some time narrating its import. He had made certain remarks about the alibi when telling the jury that there was no onus on the defence. He had said this:

"The position on the evidence of an accused person and his witnesses is this, that if you believe their evidence then obviously if you believe the evidence that the accused was nowhere near Livingston ..., he never left Glasgow, you would obviously acquit him.

 

It may be, I don't know, that his evidence and the evidence of [LM] leaves you with a reasonable doubt as to his guilt. If that is the position, if you are not sure whether you are to believe him and her against the Crown evidence, if you are left in reasonable doubt as to whom you believe then you would also acquit the accused because you would not be satisfied of his guilt beyond reasonable doubt".

 

When he came to the evidence, he continued as follows:

"... you have to compare the evidence of the accused and [LM] with the Crown evidence. You have to consider the evidence of the timings and the distance from [the location where the car was found] to Glasgow. I'm not going into that, (counsel for the appellant) did that, so did the advocate depute, it is a matter for you, and the advocate depute says well, either the identification of the accused as the driver of the Ford by [KA] and the tentative identification by the other witnesses is mistaken or the accused and [LM] are lying to protect the accused".

 

[18] When dealing with the verdicts open to the jury, the trial judge stated initially that a verdict may be returned by a majority but "there must be at least 8 of you ... in favour of the verdict which you will return". He asked counsel whether they wished him to add anything and, at that point, defence counsel reminded the judge that there required to be 8 for a guilty verdict only, whereas the judge had directed the jury that there had to be 8 for any verdict. Following upon that exchange, during which the judge, in the presence of the jury, acknowledged that defence counsel was correct, he said:

"... for a verdict of guilty you need a majority of 8 ... It really doesn't matter, so long as there is a majority of 8 in favour of an acquittal verdict. It doesn't matter what the acquittal verdict is, but you need 8 at least for a majority verdict of guilty. I think that is clear".

 

4 The Appeal
[19] The appellant lodged a notice of intention to appeal on 5 April 1982. On or about 13 May 1982, the appellant elected to dismiss his legal representatives and instruct new agents. They secured further time in which to lodge a Note of Appeal. The new agents received a Note from counsel which was "not favourable". Legal aid was, no doubt consequently, refused on the grounds that there were no substantial grounds for an appeal. The new agents withdrew from acting. Nevertheless, the appellant lodged a Note of Appeal timeously on 27 May 1982 stating, as his grounds, simply that:

"1 The evidence of (NM) was not credible and accordingly should have been rejected, in those circumstances there was no corroboration of identification and the case should not have gone to the jury.

 

2 I am innocent of the charges".

 

He signed this document himself, presumably because his trial counsel and agents did not consider that he had any grounds for an appeal and his new agents could not discover any either. This would no doubt have been after consideration of the extended charge to the jury.

[20] On any view, the grounds stated by the appellant were indeed, as the trial judge described them, unstateable. At that time, this would have precluded counsel from presenting them to the Court of Criminal Appeal (see Boner v United Kingdom 1995 SCCR 1). It is worthy of passing remark, however, that all of those from the legal profession involved with the appellant's trial and his appeal were persons recognised then and subsequently as both skilled and experienced at criminal trial and appellate work.

[21] The appellant proceeded with the appeal himself. On 24 June he attempted to add nine further grounds. These included that: (3) no reasonable jury could have convicted in light of the evidence; (4) the evidence of KA was not credible or reliable and should have been rejected thereby creating an insufficiency; (6) the trial judge had stated that KA's positive identification was unreliable; (10) he would like the evidence of three Crown witnesses who were not called to be heard because it would discredit that of NM and KA. These witnesses were Mrs JC, DL (see infra) and HW; and (11) the appellant wanted the evidence of a defence witness, whom his lawyer had failed to call, because this would have discredited that of NM. This witness was a solicitor with a firm in Inverness. The appellant later wrote to the court seeking to have evidence of other witnesses also taken. These again included DL (see supra) who, on precognition, purported to have seen persons who might have been the robbers, but had not identified anyone at the identification parade. He had given a description of the driver of the car, which was inconsistent with the driver being the appellant. The appellant complained about the conduct of his legal representatives in failing to call this witness.

[22] On 7 October 1982 the appellant's appeal was refused by an appellate bench consisting of the Lord Justice Clerk (Wheatley) and Lords Avonside and Robertson.

The appellant appeared at that diet. It is not improbable that the court would have given his grounds of appeal, including the new ones which he tried to introduce, relatively short shrift. They were either plainly unfounded in fact, irrelevant or so lacking in specification as to be clearly devoid of merit.

[23] Notwithstanding refusal of the appeal, on or about 29 November 2005, new agents acting for the appellant lodged an application for an extension of time within which to lodge a note of appeal. This was clearly incompetent. The application was refused as incompetent by a single judge on 20 December 2005. This decision was appealed, apparently upon counsel's advice, and argued at some length before the appeal was refused on 31 March 2006 (Beck v HM Advocate 2006 JC 178). In the Opinion of the Court there was reference to the possibility of the appellant lodging a petition to the nobile officium on the basis that his previous appeal had not been fairly dealt with. This the appellant duly did but, again not surprisingly, the petition was refused as incompetent (Beck, Petitioner 2010 SCCR 222).

[24] By this time the appellant had made repeated applications to the Scottish Criminal Cases Review Commission. These had all been unsuccessful. The first had been in April 2001, which was refused in a statement of reasons dated 8 October 2003. Further submissions were made, but these were rejected in a supplementary statement dated 14 December 2004. The appellant re-applied to the SCCRC in May 2006 but they declined to make a reference by a statement of reasons dated 30 March 2007. Meantime, the appellant had complained about the police's conduct of the identification parade and related matters. He complained too about his own trial solicitor and counsel. All of these complaints were rejected after independent inquiry.

[25] In November 2011, the SCCRC again declined to refer the appellant's case back to the court for reconsideration. The statement of reasons considers the views of a professor in psychology relative to the identification evidence and reviews the identification parade procedures. It examines the contents of the precognition of DL (infra) and issues of disclosure. It looks at alleged misdirections by the trial judge and the unavailability of legal aid at the time of the original appeal. It considers whether two named individuals might have committed the robbery. It narrates submissions made by the Glasgow Caledonian University Innocence Project. It concludes that the SCCRC did not believe that a miscarriage of justice may have occurred.

[26] The appellant made further submissions as did the University of Bristol Innocence Project. In consequence of this in August 2012, although they did not alter their views relative to the fairness of the identification procedures, the precognition of DL or the evidence of two alternative perpetrators, the SCCRC reached a different view in relation to the directions of the trial judge. The reasons for this focussed, first, upon the directions on standard of proof. These later formed the basis of some of the grounds of appeal (infra). The SCCRC considered the impact of the use of the words "reasonably certain", as analysed in particular in Gilmour v HM Advocate 2007 SCCR 417 and Stillie v HM Advocate 1990 SCCR 719, where it was said not to have amounted to a miscarriage of justice. Nevertheless, they went on to express the contrary view that the misdirection "must have coloured the jury's understanding and application of the relevant standard" (Reference para 170) and was magnified by the use of the phrase "reasonably clear picture". The SCCRC noted (para 176) that the judge had done no more than the "bare minimum" in relation to evidence of identification, standing the test in, for example, McAvoy v HM Advocate 1991 SCCR 123. They also, secondly, criticised (para 177 et seq) the approach of the judge to the Crown and defence cases as trespassing into the jury's province (see Simpson v HM Advocate 1952 JC 1). They considered (para 189) that there was some merit in the suggestion that the charge lacked the requisite accuracy and neutrality. All of this ultimately persuaded the SCCRC that the jury had been materially misdirected.

[27] In seeking to apply the test set out in McInnes v HM Advocate the SCCRC concluded:

"193 ...the verdicts of the jury, which were by majority only, were based on the acceptance of two fleeting, stranger identifications made by eye witnesses who saw the getaway driver through the glass of the vehicle (in one case while the vehicle was in motion). ...those identifications were made against the background certainly of some evidence that the [appellant] resembled one of the perpetrators but also of various witnesses who failed to pick out the [appellant] at parade..."

 

Taking the charge as a whole, the SCCRC determined that there was a "real possibility that the jury's verdicts would have been different, had they not been misdirected by the trial judge". On that basis, there may have been a miscarriage of justice based upon the misdirections. It was, in the SCCRC's view, in the interests of justice to refer the case back to the court and this appeal follows upon that reference.

 

5 Submissions

Appellant
[28] The first ground of appeal was that the trial judge misdirected the jury in relation to the standard of proof and, in particular, that his references to certainty amounted to a misdirection of the type identified in Stillie v HM Advocate 1990 SCCR 719 and Gilmour v HM Advocate 2007 SCCR 417. These cases had both involved the same judge as had presided over the appellant's case and similar misdirections (see Stillie at 721 and Gilmour at para [36]). The essence of the complaint was that the judge had failed to explain what proof beyond reasonable doubt actually meant, by reference to the modern formula of a doubt which causes a juror to hesitate or pause before taking an important decision in the conduct of his own affairs (A v HM Advocate 2003 SCCR 154, LJC (Gill) at para [12]; under reference to MacDonald v HM Advocate 1995 SCCR 663, see LJC (Ross) at 671; cf McKenzie v HM Advocate 1959 JC 32, LJC (Thomson) at 37; Stillie v HM Advocate (supra) LJG (Hope) at 731-732; and Gilmour v HM Advocate (supra), LJC (Gill) at para [122])). It was accepted that the absence of the use of the standard formula was not necessarily fatal but, in this case, the gloss placed upon reasonable doubt by the trial judge had been apt to mislead.

[29] The second ground was that the trial judge had erred in failing to present a balanced, neutral and impartial summary of the evidence and, in particular, the evidence of identification (Simpson v HM Advocate 1952 JC 1, LJG (Cooper) at 3; Jones v HM Advocate 1995 SLT 787, LJC (Ross) at 789; Silverman v HM Advocate 1999 JC 117, LJC (Cullen) at 121; Clark v HM Advocate 2000 JC 637, LJG (Rodger) at para [7]). The matter required to be judged objectively (Harkness v HM Advocate 2006 SCCR 342, Lord Abernethy, delivering the Opinion of the Court, at para [19]). The complaint was that the trial judge had gone through the Crown case systematically in the way of building up a picture, stopping at different junctures, pointing out that there was not a sufficiency or that the evidence was not yet satisfactory. However, upon turning to the positive identifications, he had expressed the view that there was then a satisfactory basis for a conviction. This amounted to a misdirection because of the imbalance. The trial judge had made known to the jury his views on the evidence and had thereby trespassed into the jury's province. His references to the points made by the defence had been done to negate these points.

[30] The third ground was that the trial judge had misdirected the jury in failing to give them proper directions on identification evidence. Under reference to the Practice Note of 18 February 1997; McAvoy v HM Advocate 1991 JC 16 (LJC (Ross) at 26); and Beaton v HM Advocate 2004 SCCR 467, Lord Kirkwood at paras [26] to [29], it was said that the trial judge had omitted to make it clear to the jury how identification evidence should be dealt with and, in particular, to remind them that there had been a number of witnesses who had been unable to identify the appellant as being involved in the crime.

[31] The fourth ground criticised the manner in which the trial judge directed the jury on the defence evidence. It was maintained that the trial judge's reference to reasonable doubt had been inadequate in the context of the defence case and, in particular, that the trial judge's reference to the identifications either being mistaken or the appellant and his partner lying, was inaccurate as a matter of law. It had been incorrect to say that there had been no evidence of anyone seeing the appellant other than the girlfriend before 6.00pm, given that the judge had himself referred to sightings of the appellant on the bus between 5.00pm and 6.00pm. This inaccuracy amounted to a misdirection (Crawford v HM Advocate 1999 SCCR 674, Lord Bonomy at 678; Cairns v HM Advocate 1999 SCCR 552, LJG (Rodger) at 557).

[32] The fifth ground of appeal related to the directions on majority verdicts. The contention was that there was a real risk of the jury being confused by the manner in which the judge had directed them. The case was "on all fours" with the same trial judge's directions in Glen v HM Advocate 1988 JC 42.

[33] Finally, it was said that there had been defective representation in failing to call Mr L as a witness (Anderson v HM Advocate 1996 JC 29, LJC (Hope) at 44; Garrow v HM Advocate 2000 SCCR 772, LJC (Rodger) at 778; Winter v HM Advocate 2002 SCCR 720, LJC (Gill) at para [49]). There was a Crown precognition of Mr L which narrates that, at 3.50 pm on the day of the robbery, he had seen a blue Ford Granada stopping in the Square, Kirkliston. He thought that the passenger had got out but was unable to describe him "in detail", although he had seemed younger than the driver, who had a moustache and was about 40 years of age. His recollection of the driver was "a little hazy". The car was then driven out of the Square. There was also a defence precognition of this witness, dated 8 March 1982, which contains no description of the persons in the car. The appellant contended that since Mr L's precognition was at odds with that of the witnesses who positively identified the appellant in that his description was of someone entirely different, he should therefore have been called as a witness. Neither the appellant's counsel nor his solicitor had any memory of the precognition nor of whether any consideration had been given to calling Mr L. However, no justification had been put forward for not calling him.

 

Crown
[34] It was accepted that the direction on standard of proof had been inaccurate, following Gilmour v HM Advocate (supra). However, this had not resulted in a miscarriage of justice once the charge was read as a whole. Gilmour v HM Advocate (supra), A v HM Advocate (supra) and Stillie v HM Advocate (supra) supported the proposition that this type of direction does not result in a miscarriage of justice when the charge is looked at "in the round". There were at least twelve separate directions on reasonable doubt contained in what was a relatively short charge. These included that, when the judge was referring to the jury being satisfied about a particular matter, what was meant was satisfied beyond reasonable doubt.

[35] The trial judge had given the jury standard directions to the effect that the facts were for them to assess on the evidence, and only the evidence, in the case. The judge's summary of the identification evidence had been accurate. The judge had simply been saying that certain identifications had not been positive and hence sufficient, as distinct from those of KA and NM. The direction of the trial judge on the need to accept the evidence of the two positive witnesses had been in favour of the appellant (Ralston v HM Advocate 1987 SCCR 467). The summary had been a balanced one.

[36] The specific directions given by the trial judge on identification were adequate. Indeed they favoured the appellant. In these circumstances a miscarriage of justice could not be said to have occurred. As was said in Coubrough's Executrix v HM Advocate 2010 SCCR 473 (at para 44), the terms of the 1977 Practice Note were cautionary and did not provide a formula which required to be used in every case (Blair v HM Advocate 1993 SCCR 483, LJG (Hope) at 486).

[37] The trial judge had correctly directed the jury in relation to the appellant's alibi and had stated that, if they had any reasonable doubt about it, the appellant required to be acquitted and that the jury did not require, in these circumstances, to consider the Crown evidence. No miscarriage of justice had resulted. There was no transcription of the evidence available or, indeed, any record of the speeches. The trial judge had narrated that the timings, in relation to the appellant being on a bus, varied between 5.00pm and 6.00pm.

[38] The trial judge had misdirected the jury on majority verdicts, but this was noticed by counsel and was corrected by the trial judge. There was no real risk that the jury would have misunderstood the position and it was made clear that eight was the majority required for a guilty verdict. No miscarriage of justice could have occurred (McPhelim v HM Advocate 1960 JC 17; Affleck v HM Advocate 1987 SCCR 150, LJG (Emslie) at 151).

[39] It is not known whether the precognition of Mr L had been in the possession of the appellant's representatives at the trial. Neither the appellant's counsel, nor his solicitor, state that they were aware of its content and the advocate depute is unable to confirm whether the precognition had been given to the defence. In any event, it was not defective representation not to call Mr L. The content of the precognition could not have been put to the witness if he had given evidence and it was not known what Mr L had said in any police statement. It could not be said that, if a decision had been taken not to call Mr L, this had been "so absurd as to fly in the face of reason" (McBrearty v HM Advocate 2004 SCCR 337, LJC (Gill) at para [36]; see Anderson v HM Advocate 1996 SCCR 114, LJG (Hope) at 131-132). Any decision not to call him was a tactical one in terms of counsel's professional judgment (see also Jeffrey v HM Advocate 2002 SCCR 822, LJG (Cullen) at paras [23] - [26]; Ditta v HM Advocate 2002 SCCR 891, LJC (Gill) at 894; Grant v HM Advocate 2006 JC 205, LJC (Gill) at paras [21] to [25]; Burzala v HM Advocate 2008 SLT 61, Lord Macfadyen at para [33]). The appellant's trial had been fair and no miscarriage of justice had occurred.

 

6 Decision

[40] The judge's directions to a jury must be looked at within the context of the oral tradition in which they are presented as part of the trial process. It is not appropriate to scrutinise the words used in isolation or as if they were part of a conveyancing document or provision in a penal statute. When reference is made to the presumption that a jury will follow the directions given, that is to be understood in that context. Judges are, of course, constantly reminded that it is prudent to avoid deviations from the standard formulae (McKenzie v HM Advocate 1959 JC 32, LJC (Thomson) at 37), which have been developed as examples of best practice over decades of experience. However, minor deviances or inexact examples will not normally be regarded as productive of miscarriages of justice, if the directions on a particular topic are, when the charge is read as a whole, clear and correct.

[41] In poring over the trial judge's definition of reasonable doubt, the court is in familiar territory. It was made clear most recently in Gilmour v HM Advocate 2007 SCCR 417 that this judge's habitual reference to the need to be "reasonably certain" is an error and, in that sense, constitutes a misdirection, but is nevertheless not something which will, at least of itself, result in a miscarriage of justice (ibid LJC (Gill) at para [122]). The same result was reached by a different bench in Stillie v HM Advocate 1990 SCCR 719 LJG (Hope) at 731-2). It also followed where a judge had included a reference to being "reasonably sure" (A v HM Advocate 2003 SCCR 154, LJC (Gill) at para [11]).

[42] When the words in the charge are looked at as a whole, and in the context of oral and not written communication, it is apparent that the jury were told in clear and repeatedly terms that the standard of proof was "proof beyond reasonable doubt". They were informed that this phrase meant what it said. In referring to being "reasonably certain", the trial judge certainly introduced an unnecessary gloss, but he returned later in his charge to repeat the standard phrase. The court has no doubt that, when they retired to consider their verdicts, the jury would have understood the standard of proof to be "beyond reasonable doubt".

[43] Although in modern practice, it is normal to state that a "reasonable doubt" is one which would cause a person to hesitate or pause before taking an important decision in the practical conduct of his own affairs, such a direction is not a necessary requirement in every charge (MacDonald v HM Advocate 1995 SCCR 663, LJC (Ross) at 671). It was not a particularly common direction at the time of the trial in this case and, in assessing whether a miscarriage of justice has taken place, due allowance has to be made for the practices accepted as appropriate at the time (Coubrough's Executrix v HM Advocate 2010 SCCR 473, Lord Carloway, delivering the Opinion of the Court, at paras [35] and [36] and citing R v Hanratty (dec'd) [2002] 3 All ER 534, Lord Woolf CJ at para 98).

[44] In Simpson v HM Advocate 1952 JC 1, the Lord Justice General (Cooper) said (at 3) that:

"It is always the right, and it may often be the duty, of a presiding judge to review and comment upon the evidence; but in so doing it is essential that the utmost care should be taken by the presiding judge to avoid trespassing upon the jury's province as masters of the facts".

 

These words convey several instructions. The first is that in many cases the judge will require to review the testimony. He does not require to summarise the whole evidence or even parts of it, but he may elect to explain to the jury where to find the different sources of evidence upon which they can base a conviction. This can be important in a trial which depends upon eye witness evidence of varying quality.

[45] The second is that a judge may choose to comment on that testimony. This is consistent with the terms of the Lord Justice General's Practice Note of 18 February 1977, which is not confined to eye witness identification (see infra) and which reads as follows:

"1 Accurate assessment of the quality of, and of the weight which ought to be given to certain competent and admissible evidence which is of material consequence in the determination of a jury's verdict is often a matter of real difficulty and delicacy on which the jury is entitled to receive such guidance and assistance as the presiding judge can properly afford."

 

This means that the judge may use his judicial knowledge and experience to draw certain matters to the jury's attention. This may include the need to take care in cases where the only evidence is eye witness testimony identifying a person following upon a fleeting glance, but there are many other examples. A judge does not have to remain silent if, in counsel's speeches, matters are raised for the jury's express consideration which appear, on the basis of that knowledge and experience, to be irrelevant, distracting or otherwise not to the point.

[46] The third instruction is the cautionary one of not trespassing into the jury's territory by, in essence, expressing a personal view on the evidence. However, it may be helpful in certain cases for the jury to be directed upon where they can find the testimony upon which they would be entitled to convict. This is what the judge did here, and he did so in a manner which was very arguably favourable to the appellant in its effective dismissal of what the jury might well have regarded as significant evidence of identification. This is particularly so in relation to the evidence of the postal worker WH, who had stated at the identification parade that the appellant resembled one of the robbers. WH had described how he had seen a significant number of the robber's facial features at the time to enable him to make that statement. He had said that he thought that the appellant had been one of the robbers. This was potentially significant evidence, which the jury could have used at least as corroboration of one or other of the positive identifications (Ralston v HM Advocate 1987 SCCR 467). Yet the judge directed the jury that it was "not very satisfactory" because the witness had said that he had picked out the appellant because of "just a feeling I had". The latter is often just what identification is. Similar, but weaker, considerations apply to the identification of the appellant as resembling one of the robbers by Mrs C and to the reference to the anorak by the other postal worker.

[47] All of this ought to have been regarded as potentially significant evidence against the appellant. What the judge did, however, was direct the jury almost to disregard it and concentrate solely on the two positive identifications made by PC M and Mr A. He certainly directed the jury that it was in those identifications that they could find evidence upon which they could base a conviction. In so doing, he was effectively telling the jury that they would have to accept both of these witnesses as giving reliable identification evidence before they could convict. The jury must have accepted their evidence, but a correct direction in law would not have required them to do so. Rather, acceptance of either witness's testimony as reliable would, coupled with one or other of the resemblance identifications, have been sufficient.

[48] The court does not consider that it is legitimate to criticise the judge's directions on the two positive identifications as suggesting to the jury that they should accept them, given their nature when set against the weaker identifications made by others. The trial judge told the jury that there were two positive identifications of the appellant as one of the robbers and that was entirely accurate. It seems that the defence made certain criticisms of the evidence of the two positive identification witnesses when addressing the jury. That is, of course, entirely legitimate but such criticisms do not thereby become immune from comment. If the judge considered that they required to be balanced with other factors, which he deemed also to be relevant, then he is entitled to draw these factors specifically to the jury's attention in the course of his duty, in terms of the Practice Note, to assist. He must not dictate what evidence ought to be accepted and what rejected. Indeed, in this jurisdiction, where juries have a high level of societal sophistication, such a course may seem to a jury to be patronising or condescending. A trial judge does not, however, play the part of an automaton. In this charge, the court does not consider that his remarks concerning the criticisms of the prime witnesses by the defence were necessarily misplaced to such a degree that a miscarriage of justice might have occurred. In a charge which favoured the appellant to the degree that this one did, the remarks must have been of marginal moment. In any event, it was made clear to the jury that they were to make the decisions of fact and were entitled to disregard what the judge said in any comments about the evidence.

[49] The court has regularly been informed in the course of appeals about what are perceived to be the dangers of accepting eye witness identifications as reliable. It is familiar with the work of the Bryden Committee (Report of the Working Group on the Identification Procedure under Scottish Criminal Law (Cmnd 7096, 1978). It does not require to be reminded of the simple fact of the fallibility of witnesses (see eg the remarks in Holland v HM Advocate 2005 SC (PC) 3, Lord Rodger at para [55]). The Lord Justice General's Practice Note contains cautionary guidance on the prudence of directing juries to be careful when:

"the only evidence inculpating the accused... is evidence of visual identification in circumstances in which their opportunity for accurate and reliable observation of the perpetrator has been limited in time or otherwise or merely fleeting, and where the accused was not previously known to them, or where memory may have been impaired for one reason or another".

 

However, the practical reality is that proof of guilt is daily reliant upon such testimony, whether from witnesses who know the alleged miscreant or complete strangers. The system of criminal justice depends in large measure upon the testimony of eye witnesses. As was said in Coubrough's Executrix v HM Advocate (supra at para [45]):

"It is clear that each case will depend upon its own facts and circumstances (Kearns v HM Advocate [1999 JC 124, LJC (Cullen) at 126). A trial judge has to gauge whether and to what extent it is desirable to give a jury a cum nota warning in relation to particular testimony. Care must be taken not to patronise the jury, to offer them glimpses of the obvious or to trespass unnecessarily into their province. But where the only evidence inculpating the accused is identification evidence and there is an objective reason to question its reliability, current practice requires that the trial judge should give the jury directions indicating that they should take care in assessing that evidence (Webb v HM Advocate [1996 JC 166], LJC (Ross) at p 172; Beaton v HM Advocate [2004 SCCR 467], Lord Kirkwood at para [27]). The precise choice of words to convey that indication is very much a matter for the trial judge's own style and use of language. Just what more than a general caution is required will depend upon the particular evidence in issue. In a straightforward case, little more than a broad statement on reliability of testimony may be needed (McAvoy v HM Advocate [1991 JC 16], LJC (Ross) at 26)".

 

[50] The judge did give the jury an appropriate direction on the need to take care. He specifically directed them that identification evidence was "notoriously difficult" and that it was "easy to make a mistake if you only get a fleeting glimpse". He told the jury that they had to examine the identification evidence "with care" and later "with great care" (supra). These directions were more than adequate. Although the SCCRC refers to the identifications in this case as "fleeting", that was not the evidence, at least in so far as revealed by the judge's charge. PC M said that he had a look at the driver when he had been only 18 to 20 feet away and the driver had let his hood down. The car had then driven past him and he had even had time to note its registration number. Mr A said that he got "a good look at the driver" as the car came towards him. These identifications were supplemented by what ought perhaps to have been regarded as a strong resemblance identifications by the first postal worker, namely WH, and from Mrs C. There was also the adminicle of the anorak and the Glasgow connection involving the theft of the car. In relative terms, this was a strong Crown case based on eye witness evidence. The court is quite unable to accept the contention that the judge's charge on this central issue resulted in a miscarriage of justice.

[51] In relation to the alibi the analysis narrated above in relation to the content of the appellant's Notice reveals that, so far as the bus journey was concerned, the appellant had not suggested that he had been at St Enoch Bus Station at any time before 5.30. Rather he was maintaining that it was possibly as late as 6.00 pm. There was some evidence to suggest that it was probably nearer 6.00 pm. Given that the robbery was at or about 3.45 at Livingston, the trial judge appears to have been correct in his assessment that there was little conflict between the identification of the appellant at the scene of the robbery and the alibi witnesses speaking about the bus journey and related matters. Rather, endorsing the advocate depute's submission, the trial judge said that the comparison was really only between the identifications and the testimony of the appellant and his girlfriend LM, who was the only other person to depone that he was in Glasgow at the material time. The judge directed the jury firmly that, if they believed the appellant and his "witnesses" that the appellant never left Glasgow, they required "obviously" to acquit. He went on to say that the same result followed if the appellant's evidence and that of LM left them with a reasonable doubt. He expressly did not go further into the details of the alibi or the evidence, which had clearly been given, of how long it would take to get from Livingston, or Kirkliston (if the appellant went there), to Glasgow city centre. However, it is within judicial knowledge, and no doubt the jury's too, that in 1981 such a journey could be completed within an hour or thereby. The court detects no misdirection in relation to the alibi.

[52] The misconception that this trial judge laboured under, in relation to majority verdicts, was highlighted in Glen v HM Advocate 1988 JC 42. He thought that a majority of eight was required for "any" verdict. In Glen, as in the appellant's case, the judge's direction to that effect was challenged at the time by counsel (although in Glen it was the advocate depute). Nevertheless, in Glen the judge repeated his direction that eight was required for "any" verdict. He explained the matter no further. In due course, he attempted to justify his view and expressed an opinion that a "verdict of, say, five for guilty, seven for not proven and three for not guilty would not be a valid verdict". This was roundly condemned by the court on appeal and it was explained, following Affleck v HM Advocate 1987 SCCR 150, that such a verdict was a valid one and was for an acquittal (LJC (Ross) at 45). The court emphasised that the critical direction which a jury required to be given was that there required to be eight for a guilty verdict (ibid at 45-46; see also Allison v HM Advocate 2004 SCCR 464).

[53] There is no doubt that the trial judge's original direction that a majority of eight was required for "the verdict which you will return" was a material misdirection and, had matters remained in that state, the court would have been bound to quash the conviction. However, that is not what happened. Counsel submitted to the judge that a majority of eight was required only for a guilty verdict. The judge agreed with that submission in the presence of the jury. He went on to explain that a majority of eight was needed for a verdict of guilty. That was the critical direction and the one which would have been clear to the jury when they retired. They returned a guilty verdict after a short period of deliberation. The court must proceed on the basis therefore that there were indeed at least eight in favour of the guilty verdict. No miscarriage of justice could have arisen in this context.

[54] The final ground of appeal is that of defective representation. Before examining the test for that, the court pauses to repeat that the appellant was represented by skilled and experienced counsel and solicitor. At this time, so remote from the trial, it is not possible to form any concluded view on whether the appellant's representatives had been in possession of the Crown precognition. It seems likely that they did. They also had their own precognition of the witness. Whatever the position may have been, the court does not consider that the proposition that the failure to call Mr L amounted to defective representation is a tenable one. The test to be applied is that summarised by the Lord Justice Clerk (Gill) in Grant v HM Advocate 2006 JC 205 and is whether it can be said that a miscarriage of justice occurred because "the appellant's defence was not presented to the court, and he was therefore deprived of his right to a fair trial, because counsel either disregarded his instructions or conducted the defence in a way in which no competent counsel could reasonably have conducted it" (para 21). The Lord Justice Clerk continued:

"[22] An Anderson ground cannot rest upon a criticism of strategic and tactical decisions reasonably and responsibly made by trial counsel. These are matters within the scope of counsel's legitimate judgment (Anderson v HM Advocate, [(supra)] 44; Campbell v HM Advocate [2004 SCCR 220], paras 114-119; McBrearty v HM Advocate [2004 JC 122], paras 34, 35, 55, 57, 60). An Anderson appeal should not be granted leave if all that is alleged is that the defence would have had better prospects of success if the defending counsel had pursued a certain line of evidence or argument, or pursued a different strategy (Ditta v HM Advocate [2002 SCCR 891])" (ibid).

In this case, it is not known what Mr L would actually have said, had he been called as a witness. Proceeding upon the assumption that the jury would have accepted that what Mr L was describing was the getaway car after the robbery and that the appellant must still have been driving it at the material time, if the defence had called Mr L as a witness, they would have been doing so on the basis that he was capable of identifying, or at least describing, the robbers. It would be most unusual for the defence to call such an eye witness to testify without being absolutely certain of the witness's prospective evidence. Such a course of action could be fatal to any defence. If it appears that a witness cannot identify the accused, the normal course is to leave him out of the equation rather than permitting him an opportunity to change his mind. In any event, what is clear is that, in terms of the test, the appellant's defence (which was one of alibi) was placed firmly before the jury.

[55] The court has scrutinised all the various aspects of the appellant's appeal. However, it is quite unable to hold that a miscarriage of justice occurred at the time of the trial (see Brodie v HM Advocate 2013 SCCR 23, LJG (Gill) at para [42]). The evidence against the appellant was strong. It included two positive identifications and two "resemblance" identifications. There were other adminicles of evidence such as the anorak and the Glasgow connection. The appellant's alibi was rejected. Although there were misdirections in the charge, these were not, in the event, material. In particular, the jury would have been left in no doubt as to the appropriate standard of proof and the majority required for conviction. The appeal must be refused.