APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Mackay of Drumadoon Lord Hodge Lord Wheatley	[2013] HCJAC 80 XC384/12   OPINION OF THE COURT   delivered by LORD MACKAY OF DRUMADOON   in   APPEAL AGAINST CONVICTION   by   PAUL ALEXANDER MACKLIN Appellant;   against   HER MAJESTY'S ADVOCATE Respondent:   _____________

 

Appellant: Jackson QC, Considine, Solicitor Advocate; Fitzpatrick and Co, Glasgow

Respondent: Wade AD; Crown Agent

 

11 September 2013

Introduction

[1] On 26 September 2003, the appellant was convicted after trial in Aberdeen High Court on two charges, one of contravening section 17(2) and (5) of the Firearms Act 1968 and the other of assault. The charges were in the following terms:

"(2) on 11 May 2003 at Printfield Terrace, the car park at the rear of Printfield Walk, on the flight of stairs leading from Printfield Walk to Clifton Road and on Hilton Terrace, all Aberdeen you did have in your possession a firearm or imitation firearm, namely a handgun: CONTRARY to the Firearms Act 1968, Section 17(2) and (5) as amended;

 

and

 

(3) on 11 May 2003 within the car park at the rear of Printfield Walk, on the flight of stairs leading from said car park to Clifton Road and on Hilton Terrace, all Aberdeen, you did assault Henry Ferguson, Sergeant and Simon Neil Reid, Constable, both officers of Grampian Police, Grampian Police Headquarters, Queen Street, Aberdeen and did repeatedly present a handgun at them."

 

[2] During the appellant's trial the evidence led by the Crown in respect of charges (2) and (3) sought to establish that both charges had been committed following on an earlier incident in a flat at 11b Printfield Terrace, Aberdeen, which had given rise to charge (1) on the indictment. At the close of the Crown case, the Crown withdrew charge (1), a charge of assault to severe injury with intent to rob, and the appellant was acquitted of that charge.

[3] On 26 September 2003 the trial judge imposed a sentence of 8 years imprisonment on charge (2) and a concurrent sentence of 15 years imprisonment on charge (3). On 22 April 2004, following an appeal to this court, the sentence on charge (3) was reduced to a concurrent sentence of 10 years imprisonment.

[4] In a report which he prepared for this court in connection with the appeal against sentence, the trial judge summarised the evidence led during the trial in the following terms:

"On 11 May 2003 at about 12.15pm police in Aberdeen received information to the effect that a stabbing incident had occurred at '11 Printfield Road'. Two officers, Sgt Ferguson, aged 32, and Constable Reid, aged 23, were on mobile patrol in the Printfield area, and discovered there was no such address as 'Printfield Road'. Having reached Printfield Terrace, they decided to make enquiries at No. 11 there, which is a tenement block of six flats. On the ground floor the door leading to the flat 11B was ajar and they pushed it open. A voice coming from behind the door of the living room into which they could not see asked who was there, and on their announcing it was the police they heard a scuffling noise which they took to be an indication that the persons were making their exit through the window at the rear of the flats. They moved to the tenement's common back door which led on to an open green area, and observed a man whom they later identified as the appellant beside the rear window. They told him to stop and he started to run away and chased by the officers. A person at the rear window within the flat who was covered in blood shouted 'that's him, get him, he's a bad man'. The officers chased the man for about 60 metres and were gaining on him when he stopped, turned and pointed a gun at them holding it in his right hand with arms outstretched, at a distance from them of about 5 metres. The man said "fuck off", turned and went up some steps, but the officers continued to follow him at a distance. At the top of the steps he turned again, pointed the gun at them in the same fashion and told them to fuck off. He did so again a short distance later, before running out of view down a side street. Before the officers reached the side street they heard the sound of a car with tyres squealing and the engine being raced. When they reached the street the man and the car had disappeared. The chase had lasted for about 11/2 minutes over a distance of about 300 metres, during which time the appellant, apart from stopping and pointing the gun at them three times, had also held the gun behind him pointing in the officers' general direction, and had glanced behind him several times. The officers both identified the appellant in court as the man concerned and they said they had no doubt whatever about their identification. They were shown photographs at Aberdeen police headquarters which enabled the police to ascertain the appellant's name and to trace and arrest him on 13 May at a hotel in Aberdeen where he had arrived and stayed the night on 12 May under a false name. The appellant gave evidence that at the material time on 11 May he had been at the house of a friend in Aberdeen, who gave evidence to the same effect. The jury's verdict indicated that this alibi was fabricated. A passerby who witnessed part of the chase, who in court betrayed signs of nervousness, said that the man being chased was of the same build and hair colour as the appellant but was not him. One of the occupants of the house, who had a considerable criminal record, said that he had been threatened by a masked man holding a gun at his head and demanding 'the money', but that the man who escaped from the window was not the appellant. The jury also rejected this evidence of identification."

 

The passerby referred to in the trial judge's summary was named Michael Reid and the occupant of 11b Printfield Terrace was named John Ronald.

[5] The summary of the evidence, to be found in the trial judge's report, was amplified by the contents of a joint minute entered into for the purposes of this appeal by counsel for the appellant and the advocate depute. The joint minute set out in fuller detail the evidence given by witnesses called on behalf of the Crown and by the appellant and the defence witness called to give evidence in support of the appellant's alibi. It recorded among other things that both police witnesses described the person whom they chased as having short dark hair and wearing a light-coloured long-sleeve top. It also recorded the cross-examination of the witness Ronald in which his evidence that he did not know the appellant appeared to be undermined by reference to his prior police statements which suggested that he knew that both the appellant and Thomas Pirie were in the flat where the assault occurred. The joint minute proved to be of assistance to the court and counsel are to be complimented for the effort they put into the preparation of that document.

Grounds of appeal against conviction

[6] On 3 September 2012 the appellant lodged a note of appeal against conviction. It contained three grounds of appeal. These grounds of appeal were developed in the case and argument dated 16 October 2012, which was lodged on behalf of the appellant. The case and argument was responded to in a written submission lodged on behalf of the respondent before the hearing of this appeal.

[7] The first ground of appeal on behalf of the appellant was based on the failure of the Crown to disclose to the appellant's lawyers, prior to the commencement of the trial, certain information in the hands of the police. As is clear from the trial judge's report the Crown case against the appellant during the trial had been dependent upon evidence given by each of Police Sgt Ferguson and Police Constable Reid that the appellant had been the man they had chased from Printfield Terrace to Hilton Terrace, Aberdeen and that he had presented a handgun at them. Both police witnesses made a dock identification of the appellant, no identification parade having previously taken place.

[8] The material the Crown failed to disclose prior to the trial fell into two categories. The first category was fingerprint evidence. A fingerprint of a named individual, Thomas Pirie, was found on the internal rear-view mirror of the black Ford Sierra car in which the gunman chased by the police officers had escaped and which was found abandoned by both the driver and the passenger in Moir Green Aberdeen, some distance to the west of Printfield Terrace. Another fingerprint of Pirie was found on a ceramic "bong", in the boot of the same vehicle. Pirie was known to the police and had a number of convictions. Neither the finding of Pirie's fingerprints nor his previous convictions were disclosed to the appellant's advisers prior to the trial.

[9] The second category of material the Crown failed to disclose comprised copies of police statements, all of which are dated prior to the appellant's trial. Those police statements had been taken by police officers from six individuals who had witnessed parts of the chase referred to in the trial judge's report or the subsequent abandonment of the car in Moir Green, when two men had emerged from the car referred to in the trial judge's report. Moir Green lies some distance from a lane leading from Hilton Terrace, where the chasing police officers had lost sight of the man they had been chasing and had heard a motor car driving off from the lane at speed.

[10] In the case and argument lodged on behalf of the appellant, it was contended in support of the first ground of appeal that had the fingerprint evidence relating to Pirie been available to those representing the appellant at the trial, it would have enabled them to have put forward an additional line of defence incriminating Pirie, to have led Pirie as a witness, and to have shown Pirie to the jury during the evidence of Police Sgt Ferguson and Police Constable Reid, as an additional means of assessing similarities in appearance between the appellant and Pirie and thereby challenging the soundness of those police officers' identification of the appellant as the man they had chased.

[11] It was also contended that the police statements and, where applicable, the photographs referred to in those statements, contained information that could have been of material assistance in the proper preparation and presentation of the appellant's defence during the trial.

[12] It was submitted that by the Crown's failure to disclose the result of inquiries undertaken by the police in respect of Pirie, the taking of police statements from witnesses and the showing of police photographs to some of those witnesses, the Lord Advocate had infringed the appellant's right to a fair trial in terms of article 6 of the European Convention on Human Rights ["ECHR"]. The failure to disclose had given rise to a miscarriage of justice and the convictions should be quashed.

[13] The second ground of appeal founded on the evidence of dock identification of the appellant given during the trial by the two chasing police officers. It was contended that by leading and relying on evidence of dock identifications, without disclosing all the relevant evidence to the appellant's advisers and without the holding of an identification parade, the Lord Advocate had acted incompatibly with the appellant's rights under article 6 of ECHR. As a consequence the appellant had been denied a fair trial and there had been a miscarriage of justice.

[14] The third ground of appeal contended that the trial judge had misdirected the jury in relation to the identification evidence that they had heard. He had failed to direct the jurors in relation to the specific dangers of dock identification evidence. He had also omitted to remind them that no identification parade had been held and that accordingly the appellant had lost the opportunity of taking advantage of any inconclusive outcome to such a parade.

Police statements that were not disclosed

[15] Before turning to the submissions of senior counsel for the appellant and the advocate depute it is convenient to refer to the contents of the police statements that were not disclosed. Those statements were taken from six individuals, all of whom spoke to what they had seen during the morning of 11 May 2003. The contents of these statements can be summarised as follows:-

(a) AJD

This witness was a nine year old girl. She had been playing in a park behind 9 Printfield Terrace at the time. The first person she had noticed had been a man in the garden behind 11 Printfield Terrace, who was kneeling beside a hedge and digging a hole. She saw a second man standing behind the hedge. In her statement AJD indicated that she could not identify either of those men. However, she indicated that she could identify a third man, whom she had first seen opening a rear window of the house at 11b Printfield Terrace, looking out of that window and speaking to the man, who was kneeling beside the hedge and digging a hole. Some minutes thereafter the witness had seen the same individual jumping out of the rear window of 11b Printfield Terrace and being chased by two police officers. She provided a description of the individual, as being about 6 feet, in his mid-twenties, with blonde hair, unshaven and wearing a baggy white T-shirt. The witness indicated that the individual's nose looked like it had had been broken and was squint. There was no indication in the police statement that the witness had been asked to view an identification parade or had been shown any photographs by police officers.

(b) JGH

This witness was an adult male, who was standing at a bus stop in Clifton Road, with two children. Clifton Road lies some distance to the west of Printfield Terrace and is reached by a flight of steps. In his police statement JGH described seeing two men running from the direction of Printfield across Clifton Road and into Hilton Terrace. The second man appeared approximately 30 seconds after the first man. He was holding what appeared to be a gun and was being chased by two police officers. The witness described the second man as being five foot eleven inches tall, possibly with dark short hair and wearing a long sleeved dark coloured top and dark coloured trousers. The police statement indicated that the witness had stated he could not identify the second man being chased.

(c) JTJJ

This witness, who was a boy of 11 years of age, was sitting on the grass in Moir Green, when a black Ford Sierra car arrived at speed and parked. Moir Green lies several hundred yards to the west of Clifton Road. The witness spoke to having seen two men emerge from the car. He provided a description of both men, including some details of what they had been wearing. The description he provided of the front seat passenger included that he was five foot two inches tall, of slim build, had very short black hair and was wearing a black leather jacket and blue jeans or jogging bottoms. The statement indicated that the driver ran off and did not return. However the witness observed the front seat passenger, emerging from the vehicle, going straight to the boot of the vehicle, removing a box from the boot and running off. The witness then spoke to the passenger returning to the vehicle, on two occasions and removing papers from the vehicle before running off for good. The witness spoke to a police car arriving in Moir Green whilst he was still there. Later the same day, at his own house, the witness provided a statement to the police of what he had seen. Police officers showed the witness some photographs, including one of the appellant. The witness picked out a photograph of someone other than the appellant as having been the male who had come out of the passenger's side of the car. During the hearing of the appeal, it was a matter of agreement that the male in the photograph picked out by this witness had no connection with the police inquiry.

(d) HR

This witness, who was also a boy of 11 years of age, was sitting with JTJJ when a car had arrived in Moir Green and two men had emerged. He described the passenger as being "in his thirties, about six foot tall, medium build with short dark hair" and as wearing a black leather jacket and blue jeans or jogging bottoms. When witness HR provided his statement to the police he had indicated that he may be able to recognise the passenger if he saw him again. The Crown accepted that, as with the witness JTJJ, police officers had shown the witness HR a number of the photographs (including one of the appellant). The witness HR, however, failed to identify the appellant.

(e) DJT

This witness, who was a boy aged 13, was also at Moir Green. He spoke to having seen a black Ford Sierra motor car parked outside a Chinese takeaway. He stated that he had seen only one man, who had been standing beside the front passenger door, which was open. Other doors of the car were closed, whilst that man rummaged inside the front of the car. The witness saw the man placing items in a bag, which was lying on the ground outside the car. When the witness subsequently provided a statement to the police he described the man as thirty years of age, between five foot four inches and five foot seven inches in height, of normal build, and as having facial hair and dark coloured hair. He indicated that the man had been wearing a black leather jacket and stated that he did not know whether he would recognise the man again. There was nothing in the statement that DJT had provided to indicate that he had been shown any photographs by police officers.

(f) GC

This witness, an adult male, had been in a position from which he could see into Hilton Terrace, on the late morning of 11 May 2003. From where he had been standing the witness had observed a man walking along the pavement in Hilton Terrace, leading from Clifton Road. He was walking in the direction of a black Ford Sierra car parked in Hilton Terrace and facing in the direction of Hilton Drive. The witness said that he saw the man, whom he had been watching, open the rear passenger door of the car and place something in the rear of the car, before he entered the car and sat in the front passenger seat. This witness subsequently gave the police a statement in which he described the man he had seen as being 5 foot 10 inches, of slim build, with short black greasy hair and wearing a black coloured T-shirt. He indicated to the police who had taken a statement from him that he could not identify the man he had seen in Hilton Terrace.

 

Submissions for appellant

[16] At the outset of his oral submissions, senior counsel for the appellant indicated that there was no dispute as to what had happened over the period of time covered by charges (2) and (3) on the indictment. All that had been at issue during the trial, and remained in dispute, was the identity of the individual who had been chased by the two police officers from behind Printfield Terrace and had threatened the police officers with a firearm or imitation firearm, which he had in his possession ("the gunman").

[17] Senior counsel explained that if the evidence relating to the fingerprints of Pirie and his previous convictions had been available, the appellant might have lodged a special defence of incrimination of Pirie. Leading evidence from Pirie and about Pirie's appearance might also have assisted the appellant in challenging the identification evidence given by the police officers, because around the time of the trial the appellant and Pirie had looked quite alike.

[18] Turning to the police statements of the six witnesses senior counsel explained that having regard to the contents of the police statements of JTJJ and HR they would certainly have been cited as defence witnesses for the trial. That was primarily because each of them had identified someone other than the appellant, when shown a selection of photographs by police officers. Senior counsel indicated that AJD and DJT would have been precognosed and might well have been cited as defence witnesses. The other two witnesses, JGH and GC, would probably also have been precognosed, although senior counsel indicated that it was less certain that either of them would have been in a position to give evidence that would have assisted in the defence of the appellant.

[19] Senior counsel argued that the additional evidence the appellant would have been in a position to lead, from two and possibly as many as four further witnesses, would have assisted in challenging the identification evidence relied on by the Crown. That evidence had come from the two police officers alone. As the trial judge's report made clear, two other witnesses at the trial, Reid and Ronald, had given evidence that the appellant had not been the gunman. Whilst their evidence as to the identification of the gunman had been rejected and not relied on by the jury, senior counsel argued that had the additional evidence now available been led, there would have been a real possibility of the jury returning a different verdict. It was impossible to say that the additional evidence now available would not have made a difference during the trial. Accordingly, as a consequence of the absence at the time of the trial of the evidence that the Crown had failed to disclose, there had been a miscarriage of justice.

[20] Senior counsel for the appellant also sought to criticise the Crown's reliance on the dock identification of the appellant by the two police witnesses, who had chased the gunman. No identification parade had been held and viewed by any of the witnesses who had given evidence during the trial or the six additional witnesses, whose police statements had been not been disclosed. Moreover, when the trial judge had given the jury directions about the identification evidence relied upon by the Crown, he could and should have said more about the dangers of dock identification evidence and the lack of safeguards when no identification parade has been held.

[21] Senior counsel argued that when the absence of any identification parade, the risks associated with dock identification evidence, the limited nature of the trial judge's directions on identification evidence, and the Crown's failure to disclose the police statements of six witnesses and the fingerprint evidence, were considered together they gave rise to a real possibility that, had full disclosure of the police statements taken place before the trial and fuller directions about identification evidence been given to the jury by the trial judge, there would have been a different outcome to the trial.

Submissions for respondent

[22] At the outset of her submissions the advocate depute stressed that during the appellant's trial the identification evidence given by the two police officers, Police Sgt Ferguson and Police Constable Reid, had been crucial to the outcome of the prosecution. Two other witnesses, Reid and Ronald, had given evidence that had not supported the evidence of those police officers. The jury had accordingly been faced with the evidence of four witnesses: two police officers who had identified the appellant as the person they had chased after he had climbed out of the window at Printfield Terrace and Reid and Ronald, who gave evidence to contrary effect. Reid had given evidence that the appellant, sitting in court between two police officers, was not the man with a gun that he had seen being chased by two police officers in Clifton Road. Ronald, who had been inside the flat at 9b Printfield Terrace, had stated during his evidence that the man who had jumped out the window of that flat was not in court.

[23] The advocate depute submitted that when dealing with the non-disclosure of material such as fingerprint evidence or police statements taken from witnesses, the test to be applied was as set out in paragraphs 19 and 20 of the judgment of Lord Hope of Craighead in McInnes v HMA 2010 SCCR 286.

[ 24] Two questions required to be addressed in an appeal of this kind. They must be considered and applied separately. The first question was whether the material that had been withheld from the defence ought to have been disclosed. The answer to that question depended on whether the material withheld might have materially weakened the Crown case or materially strengthened that of the appellant. The second question, which only arose if the material withheld ought to have been disclosed, was whether, taking all the circumstances of the trial into account, including the non-disclosure, the jury's verdict should be allowed to stand. This second question should only be answered in the negative if there was a real possibility of a different outcome - that is, there was a real possibility that the jury might reasonably have come to a different verdict, had the withheld material been disclosed.

[25] The advocate depute submitted that the non-disclosure of the fingerprint evidence and the six police statements had not, having regard to all the circumstances of the trial, given rise to a miscarriage of justice. In light of the nature of the material that had not been disclosed, the strength of the Crown case and weaknesses in the defence case of alibi, which had been exposed during the trial, there was no real possibility that the jury would have come to a different view if the material that had been withheld had been disclosed and led in evidence.

[26] Turning to deal with the fingerprints of Pirie, which had been found on the interior rear‑view mirror and the ceramic "bong" in the boot of the Ford Sierra car, the advocate depute argued that it did not require to be disclosed prior to the trial. It did not materially weaken the Crown case or materially strengthen the case for the appellant. Pirie had previous convictions. Whilst the fingerprint evidence relating to Pirie might have supported an inference that placed Pirie in the car and in the driver's seat, it did not support an inference that Pirie had been the gunman who had been chased by the police and who had entered the getaway car through the front passenger door.

[27] The advocate depute argued that even if the fingerprint evidence and details of Pirie's previous convictions had been disclosed to the appellant's advisers, it was far from clear what use could have been made of it. Had Pirie been named as an incriminee, that might have given rise to the danger of the jury inferring that Pirie, a man with a criminal record for drugs and violence, had been the accomplice of the appellant, with Pirie being the driver of the getaway car and the appellant the gunman. Moreover, a police statement of the Crown witness Ronald, the complainer on charge (1) and resident at 9b Printfield Terrace, had named Pirie as having some involvement in the assault upon him. That statement had been lodged as a Crown Production (No.8) at the trial and yet it was not suggested on behalf of the appellant that any investigation of a possible incrimination of Pirie had taken place. Furthermore when the appellant had been arrested on 13 May 2003, he was found to be wearing a pair of jeans with the name "T H Pirie" on the inside, which he confirmed he had borrowed from Pirie. In these circumstances it was clear that any incrimination of Pirie would have given rise to the danger of the jury inferring that Pirie had been an accomplice of the appellant and the appellant had been the gunman.

[28] Turning to the police statements the advocate depute acknowledged that the police statements of AJD, JTJJ and HR should have been disclosed, AJD's because her description of the gunman had indicated that unlike the appellant, he had fair hair, and those of JTJJ and HR because they had been shown photographs, including one of the appellant, whom they had failed to identify. However the advocate depute submitted that even if the evidence of those three witnesses had been led that would not have given rise to a real possibility of the jury coming to a different verdict. All three witnesses had been children, aged between 9 and 11. During the trial two adult witnesses, Ronald and Reid, had given evidence about having seen a gunman on 11 May 2003. Ronald who occupied a flat in 9b Printfield Terrace had seen a gunman leaving his flat through a rear window. Reid gave evidence of having been in Clifton Road and having seen a man carrying a gun being chased by two police officers from Printfield Terrace and towards Clifton Road and Hilton Terrace. Both witnesses gave categorical evidence that the appellant was not the gunman they had seen. The advocate depute argued that if the evidence of the two adult witnesses, who had given evidence during the trial, had not given rise to a reasonable doubt in the jury's mind, it was unlikely that the evidence of any or all of those three children - even assuming they gave evidence that the man they had seen was not the appellant - would have affected the jury's view on the identification of the appellant as having been the gunman.

[29] As far as the other three witnesses, JGH, DJT and GC, were concerned, the advocate depute submitted that the Crown had no obligation to disclose their statements prior to trial. The statements neither materially weakened the Crown case nor materially strengthened that for the appellant. In any event there would have been no real possibility of the jury reaching a different verdict had the evidence in JGH, DJT and GC been disclosed and led during the trial.

[30] When summarising her submissions in response to the first ground of appeal, the advocate depute stressed that the Crown case against the appellant had been a strong one. Both police officers had chased the gunman over a distance of 100 metres and had been confronted by him on three occasions in broad daylight. When the appellant was arrested two days later, he was living away from his usual residence in a hotel where he was registered under a false name. The defence evidence in support of the alibi had been weak. For whatever reason, the appellant had chosen not to cite Mr and Mrs Martin, in whose home he claimed to have been present when charges (2) and (3) were alleged to have been committed. The sole witness he had called to support his alibi, Ian Whyte, had had his credibility badly undermined, whilst he was giving evidence, by virtue of his own criminal record and by the inference that, having visited the appellant in prison two nights running prior to giving evidence, he had sought to collude with the appellant in creating a false alibi.

[31] Responding to the other submissions advanced by senior counsel for the appellant, relating to the issue of dock identification and the trial judge's directions relating to identification, the advocate depute invited the court to have regard to the contents of the written submission that the Crown had lodged. In summary she argued that dock identification evidence was not per se inadmissible; nor was reliance on such evidence invariably an infringement of an accused's rights under article 6 of the ECHR (Holland v HM Advocate 2005 SCCR 417, paras, 5, 41, and 57). Dock identification by a witness was not made inadmissible by reason of the fact that the witness has not made a previous identification. The fairness and reliability of the dock identification evidence given by each of the two police witnesses had not been affected by the non-disclosure of the police statements and photographs discussed earlier. In any event during the trial, despite having been aware that the police witnesses had been shown photographs of a number of individuals including the appellant, before they gave evidence, defence counsel had not taken any objection to the admission of the dock identification evidence of those two witnesses. In these circumstances the appellant was now barred from raising any objection to the admissibility of or the Crown's reliance upon the identification evidence given by the two police officers (Criminal Procedure (Scotland) Act 1995 section 118(8)(b)(ii)).

[32] As far as the trial judge's directions to the jury were concerned, the advocate depute reminded the court that the case of Brodie v HMA 2013 SCCR 23 sets out what is the current good practice for directing a jury in a case where dock identification evidence has been admitted and led. Her submission was that the directions given by the trial judge on the issue of identification evidence fell to be viewed as having been standard directions in 2003. Those directions had explained the importance of the identification evidence given by the police witnesses. The trial judge had directed the jury that identification evidence must always be scrutinised with particular care. He had highlighted the possibility of honest witnesses making mistakes on questions of identifications and reminded the jury of defence counsel's contention that any mistake on the part of the police witnesses, as to the identification of the gunman, may have been prompted by the police witnesses having been shown photographs before making the identification that led to the arrest of the appellant. In these circumstances it could not be argued that either the admission of the dock identifications or the trial judge's directions as to the identification evidence before the jury had given rise to a miscarriage of justice.

Discussion

[33] In our opinion this appeal falls to be refused. Dealing with the first ground of appeal, we are not persuaded that the finger print evidence relating to Pirie was evidence which the Crown required to be disclosed. In our opinion, it did not constitute evidence which materially weakened the Crown case or materially strengthened the defence case. On the contrary we accept the submissions advanced by the advocate depute that introducing evidence before the jury about Pirie's fingerprints having been found in the getaway car would have carried serious risks for the appellant. More importantly, perhaps, we are not persuaded that had such evidence been led there would have been any real possibility of it persuading the jury to return a different verdict on charges (2) and (3).

[34] Turning to the police statements of the six witnesses which had not been disclosed, we understand why the Crown has conceded that the statements of AJD, JTJJ and HR should have been. The concession was made in respect of the statement of AJD, because the witness had given a description of the gunman as having fair hair, as opposed to the dark hair spoken to by Police Sergeant Ferguson and Police Constable Reid. When statements were taken from the witnesses JTJJ and HR, the witnesses had been shown photographs, including one of the appellant, but had failed to identify him.

[35] However, we are not persuaded that the Crown required to disclose any of the police statements of JGH, DJT or GC. In his statement, the adult witness JGH indicated that he could not identify the second man he saw being chased by the police officers as he ran towards Hilton Terrace. The police statement of the child witness DJT indicates that the witness did not know whether he could recognise again the man he had seen removing items through the front passenger door of the Ford Sierra car parked in Moir Green. The police statement of the adult witness GC indicates that the witness saw a man in Hilton Terrace, who appeared to have come from Clifton Road, entering a parked car through the front passenger door. The statement however also records GC as stating that he could not identify the male, whom he had seen entering the car. In our opinion, there is nothing in any of these three police statements that would either have weakened the Crown case or strengthened the defence case during the trial.

[36] Returning to the statements of AJD, JTJJ and HR, we are not persuaded by the submissions of senior counsel for the appellant that leading the evidence of any or all of those three witnesses would have given rise to a real possibility that the jury would have returned different verdicts on charges 2 or 3. We are not persuaded that the evidence of AJD that the man who emerged through the window had blonde hair would give rise to such a possibility. The other witnesses and potential witnesses were unanimous in describing the person they saw as having dark hair.

[37] It is necessary to consider the evidence of the children, JTJJ and HR in the context of the evidence as a whole when assessing its possible effect. We have had regard to the whole circumstances of the case as set out in the trial judge's report and the joint minute agreed by counsel, as expanded upon in the submissions of counsel. The two police officers called as witnesses for the Crown gave clear evidence identifying the appellant. Their evidence was challenged under cross-examination, a challenge that also sought to found on the evidence of Reid and Ronald. In the event that challenge was unsuccessful. The trial judge recorded in his report that Reid "betrayed signs of nervousness" when he gave evidence. Ronald's evidence was, as we have said, significantly weakened on cross-examination. We agree with the advocate depute's submission that the Crown case had been strengthened by (a) the evidence the jury heard that the appellant had booked into the hotel where he was arrested under a false name, (b) the appellant's failure to call the two witnesses, who would have been expected to support his alibi, and (c) the evidence given by the appellant and the only alibi witness called by him to the effect that the alibi witness had visited the appellant in prison during each of two days immediately prior to the witness giving evidence. We find it difficult to envisage circumstances in which the defence would have risked calling JTJJ or HR to confirm that they had not identified the appellant from a photo, having regard both to the limited value of that evidence and also the chance that they might identify the appellant in court. In our opinion, in the context of the evidence as a whole,there was no real possibility that the evidence of the children, JTJJ and HR, would have caused the jury to come to a different view as to the identity of the gunman.

[38] Turning to the appellant's second ground of appeal, we are not persuaded that the Crown's leading of dock identification evidence from the two police officers, without any prior holding of an identification parade, resulted in the Lord Advocate acting incompatibly with article 6(1) of the ECHR or in the appellant not having received a fair trial (see Holland v HM Advocate 2005 SCCR 417 per Lord Hope of Craighead at Para 38 and Lord Rodger of Earlsferry at Para 57). Dock identification evidence is not per se inadmissible; nor is it an infringement of an accused's rights under article 6, except perhaps in an extreme case (see Brodie v HM Advocate 2013 SCCR 23 per Lord Justice General Gill at para15). We do not consider that this can be considered to be an extreme case. The dock identification evidence complained of was given by two police officers, who had chased in broad daylight the individual they claimed to have identified subsequently from photographs. Their evidence was challenged on the basis that their identification of the appellant had been mistaken. It was not suggested that their evidence was deliberately false.

[39] The third ground of appeal is related to the second. It is contended that the trial judge ought to have directed the jurors in relation to the specific dangers of dock identification. In particular it is argued that the trial judge should have reminded the jurors "that there had been no identification parade and that accordingly the appellant had lost the opportunity to take advantage of the possibility of an inconclusive outcome to any such parade".

[40] When the trial judge came to charge the jury on the subject of identification evidence, at pages 16 and 17 of his charge, he did not make any specific mention of the term "dock identification". In that respect it can be argued that he failed to give directions along the lines that are currently considered to be desirable, where the jury hears evidence of a dock identification without there having been any identification parade (see Brodie v HM Advocate, supra, per Lord Justice General Gill at Para 18). However that in itself does not constitute a misdirection giving rise to a miscarriage of justice.

[41] In our opinion the trial judge cannot be criticised for having omitted to direct the jury that because there had been no identification parade "the appellant had lost the opportunity to take advantage of the possibility of an inconclusive outcome to any such parade". The possibility of trial judges in Scotland giving such directions was fully discussed by Lord Justice General Gill in paras 20 - 25 of his opinion in Brodie v HM Advocate, supra. He considered that a direction of that kind in a Scottish trial would be inappropriate and unhelpful. That was because it would involve the judge inviting the jury to speculate as to what might have happened if the identifying witness had taken part in an identification parade.

[42] Furthermore, even if the failure of the trial judge to make explicit reference to the dangers of dock identification falls to be considered to be a misdirection, we are not persuaded that it was sufficiently material to give rise to the appellant's conviction involving a miscarriage of justice. The directions the trial judge did give on pages 16-17 of his charge highlighted some of the issues which are relevant to dock identification. He directed the jury that evidence of identification must always be scrutinised with particular care, because experience of previous cases has shown that even the most honest of witnesses make mistakes. He drew attention to the line of argument defence counsel had advanced, namely that Police Sgt Ferguson and Police Constable Reid had been mistaken in their identification of the appellant. They had first identified the appellant after they had been shown various photographs by other police officers. That had ultimately led to the arrest of the appellant. The trial judge also directed the jury to have regard to the opportunity the two police officers had had to observe the man they were chasing, how close they had been to the man concerned, what the light had been like and general matters of that nature. In our opinion, the approach followed by the trial judge in this chapter of his directions was consistent with the guidance to be found in the Practice Note of 18 February 1977, issued by Lord Justice General Emslie, and in the opinion of the Court delivered by Lord Justice Clerk Cullen in Kearns v HM Advocate 1999 SCCR 141, at p 143E. Moreover in his opinion in Coubrough's Executrix v HM Advocate 2010 SCCR 473, in paras 34 and 35, Lord Carloway stressed that when assessing whether a miscarriage of justice has occurred, the concept that this court will normally apply is its current, or modern, appreciation of what amounts to justice, including fairness in the trial. It was this court's present understanding of the law which must be applied. However that did not mean that the court had to regard the trial as having occurred at the same time as the appeal hearing. In looking to see whether a miscarriage of justice has occurred, the court must have regard to the practices and procedures current at that time in determining whether what happened can be said to amount to a miscarriage of justice. Following that guidance, we are not persuaded that the terms of the trial judge's directions on the evidence of identification given by the two police officers gave rise to a miscarriage of justice.

[43] For these various reasons this appeal against conviction is refused.