Appellant:  M C MacKenzie;  Beaumont & Co

Respondent:  Prentice QC Solicitor Advocate, AD;  Crown Agent

4 June 2014

Introduction

[1]        There are three issues in this appeal against conviction.  First, whether a dock identification should have been admitted in evidence (cf Holland v HM Advocate 2005 1 SC (PC) 3).  Secondly, whether there was a misdirection concerning “intent to rape”.  Thirdly, whether no reasonable jury, properly directed, could have returned a verdict of guilty having regard to the identification evidence (section 106(3)(b) of the Criminal Procedure (Scotland) Act 1995).

Background

[2]        On 24 January 2013, a jury at Edinburgh Sheriff Court found the appellant guilty of the following offences:

“(001)  on 30 May 2010 at Easter Road, Edinburgh you GREG FRASER ROBSON did assault [CL] and did ask her to have sexual intercourse with you for payment, follow her, seize her by the body, place your hands between her legs and handle her thighs and place her in a state of fear and apprehension for her safety

(002)  on 31 May 2010 at Albert Street, Edinburgh you GREG FRASER ROBSON did assault [GC]and did follow her, seize her by the body, state that you would pay her to take down her trousers, demand that she accompany you to a dark area, attempt to drag her bodily along the road, struggle with her, attempt to detain her against her will, order her to stop shouting for help, punch her on the head whereby she fell to the ground and place her in a state of fear and apprehension for her safety, all to her injury, and this you did with intent to rape her.”

The Crown had relied upon inter alia the evidence of each complainer, and the Moorov doctrine.

[3]        The first complainer, Miss L, was assaulted in Easter Road, Edinburgh, on 30 May 2010.  She reported the matter to the police.  She was asked if she could identify her attacker from an emulator sheet which did not contain the appellant’s image.  Miss L selected a stand-in.  On 22 February 2011 Miss L saw a male at a pub in Edinburgh.  She recognised him as her attacker, and contacted the police.  Police officers detained and interviewed the male, who turned out to be the appellant.  He denied all the allegations against him.  At a subsequent VIPER identification parade on 6 January 2012, Miss L identified the appellant as her attacker.  She also identified him in court at the trial in January 2013.

[4]        The second complainer, Miss C, was from Italy.  She was attacked in Albert Street, Edinburgh (a location near Easter Road) on 31 May 2010, the day after the assault on Miss L.  She reported the matter to the police.  As the sheriff narrates in her report: 

“[5]  [Miss C] said that the incident had lasted for about a minute and that she had seen her attacker’s face.  She described him as being in his early 20’s with dark blond hair with blue or green eyes and of around 1.75m in height with quite a skinny build.  He was wearing large clothes.  She thought he was wearing blue jeans and a hoody which was light grey.  She had thought at first that the man was Polish when he spoke to her but at that time she had not been in Scotland for long having arrived on 9 January 2010.  She said he could have been Scottish.  She had given a description to the police and a statement whilst in hospital at around 1.50am on 31 May 2010. 

[6]  On 1 June 2010 police officers attended at [Miss C’s] home address and showed her a book of photographs, Crown Production 34, in which she selected an image that she said she had told the police looked similar to her aggressor but that she did not think he was her aggressor.

[7]  [Miss C] left Scotland after the incident and returned to Italy.  Evidence was led later in the trial from DC Ryan Lee, Crown witness 12, that he had contacted her in Italy in March 2011 following upon the complainer in charge 1, [Miss L], having reported sighting the male who had attacked her standing outside the Eutopia Bar in Easter Road across from her flat on 22 February 2011.  The police attended at Eutopia Bar within 10 to 15 minutes of her call and arrested and detained the male, the appellant.  DC Lee had arranged a meeting with [Miss C] when she proposed to return to Edinburgh in April 2011.  On 5 April 2011 she was shown a further book of photographs, Crown Production 35 [which contained an image of the appellant and 11 stand‑ins].  In her evidence [Miss C] said that she remembered the photographs in that book were very small and dark and that she could not find her aggressor in the photos shown.  She said that she had told the officers present that the pictures were very small and dark and that she ‘could not tell’.

[8]  [Miss C] attended a Viper identification parade on 6 January 2012 at St Leonards Police Station.  She said that she had told the police that it was quite hard to identify her aggressor from the clippings but that it would be easy to identify him if she saw him face to face.  She did not identify any clipping as her attacker but picked out No’s 2, 3 and 4 as having similarities to him.  She had said that No 2 was similar in the nose and colour of hair of her assailant; that No 3 was similar in the eyes; and that No 4 was similar in relation to the ears.  No 3 was a Viper clip of the appellant.  She was asked by the procurator fiscal if she would be able to identify the person who had assaulted her if she saw him again.  She replied that if the procurator fiscal meant seeing him face to face that she thought she would.  She was then asked by the procurator fiscal depute if she could see her aggressor in court.  At this point the appellant’s counsel Mr McCluskey objected and the jurors were invited the retire.”

Having heard submissions, the sheriff repelled the objection.  Miss C subsequently identified the appellant as her assailant.

Submissions for the appellant

Ground of appeal 1:  evidence of dock identification

[5]        As the Crown relied on the Moorov doctrine, the Crown could not prove its case without a positive identification from Miss C at the trial.  In the light of Miss C’s repeated failures to identify the appellant in pre-trial procedures, the sheriff was invited to hold that any attempt made by Miss C to make an identification in court would be unfair.  The sheriff erred in repelling that objection, and in allowing Miss C to dock identify the appellant. 

[6]        There was a long background of concern about the safety of dock identifications.  Although the Thomson committee in 1975 had made a recommendation that dock identifications should no longer be used, that recommendation had not been followed.  The question of dock identification had been examined by the Privy Council in Holland v HM Advocate 2005 SC (PC) 3.  Reference was made to paragraphs [47] and [57], and to the category of “extreme case” when it would be unfair to allow an attempt at identification in court.  Miss C’s failure positively to identify anyone in photographs or at the VIPER parade, together with the passage of time, placed this case in the extreme category. 

[7]        One question to be weighed in each case was the centrality and importance of the particular dock identification.  In the present case (in contrast with Gage v HM Advocate 2012 SCCR 254 where the impugned identification was not central to the case against the appellant) the Crown depended upon two complainers and the application of the Moorov doctrine.  Thus the court had to look very carefully at whether the pre-trial procedures (the VIPER parade, photographs etc) provided a sufficient safeguard in the case of each complainer.  Miss L had made a positive identification at a VIPER parade.  Accordingly no objection had been taken to a question asking her if she could see her assailant in court.  But Miss C’s failure to identify the appellant at the pre-trial procedures with their built-in safeguards (such as the promptness of these procedures following upon the alleged offence, and the permitted presence of a legal representative who could, for example, object to a stand‑in) meant that an attempted identification in court by Miss C was unfair.  The sheriff had reached the wrong conclusion in paragraph [11] of her report.  Contrary to her approach, there were no checks on Miss C’s dock identification.  It was not appropriate to seek a safeguard in the identification relating to the other charge; Miss C’s identification evidence was critical.  What Miss C said at the VIPER parade (as noted in paragraph [8] of the sheriff’s report) did not go far enough, as she had selected the appellant only on the basis of one of three, and she also made a comment “I don’t know”.  That was not a basis upon which the Crown could fairly lead evidence of a dock identification.  The present case, where the only identification made by Miss C was of the appellant when sitting in the dock between two guards, encapsulated the very risks and dangers inherent in a dock identification.  A miscarriage of justice had occurred.  The first ground of appeal should be allowed, and the convictions quashed.

Ground of appeal 3 (the esto basis):  “intent to rape”

[8]        In relation to the second charge, the jury were being asked to apply their minds to the same question as that contained in a charge of rape or attempted rape.  But the sheriff had not defined the actus reus – i.e. what in legal terms “sexual intercourse” meant.  That was a misdirection of some materiality, aggravated by the fact that the sheriff did not give a specific direction that those words could be deleted (although admittedly a general direction about deletion was given at page 26 of the charge).    

Ground of appeal 6:  no reasonable jury, section 106(3)(b)

[9]        Miss L had acknowledged that she had a brief look at the assailant’s face on 30 May 2010.  She had been shown photographs the day after the attack and had picked a stand-in.  When she next had contact with the police in February 2011, there had been a gap of some months.  Also evidence was led (not narrated in the sheriff’s report) of another sighting a few months after the assault of a person waiting at a bus stop.  Miss L had contacted the police on that occasion also, but the person had not been detained.  Furthermore there was a risk of “contamination” in that the appellant and Miss L both lived in a small area of Edinburgh, and Miss L could have seen the appellant on previous occasions and therefore thought that she recognised him.

[10]      As for Miss C, the weaknesses and difficulties with her identification were noted in the sheriff’s report.  With the first book of photographs, she had picked the same stand-in as Miss L.  She had failed to pick out the appellant in the second book of photographs which did contain his image.  She subsequently explained that these photographs were “small and dark”:  but as defence counsel demonstrated to the jury, the photographs were clear.  Also the police officers involved had no recollection of a comment about the quality of the images.  At the VIPER parade, Miss C picked the appellant and two others on a “resemblance” basis, saying that she would be able to identify the assailant “face-to-face”.  Those circumstances highlighted the vulnerability of a dock identification.  The VIPER parade, which (according to the Lord Advocate’s guidelines) should be held as soon as practicable in the interests of fairness to the accused and the witness, had in fact been held about 18 months after the event.  There was no satisfactory explanation for the delay.  The offences had occurred in 2010 (when the appellant was one month past his 17^th birthday).  So there had been significant delays between the offences and the VIPER parade and the trial.  When these points were considered cumulatively, there was considerable doubt over the reliability of the dock identification led before the jury.  Applying the statutory test in section 106(3)(b) as explained in King v HM Advocate 1999 JC 226, 1999 SCCR 330 and E v HM Advocate 2002 JC 215, 2002 SCCR 341, the evidence of both complainers was such that no reasonable jury could have returned a verdict of guilty.  The appeal should be allowed, and the convictions set aside.

Submissions for the Crown

Ground of appeal 1:  evidence of dock identification

[11]      The fact that a witness had not made a previous identification did not make a dock identification inadmissible (Brodie v HM Advocate 2013 SCCR 23;  Pop v The Queen [2003] UKPC 40).  Nor was it an infringement of the accused’s rights under article 6, except perhaps in an extreme case (Holland v HM Advocate 2005 SCCR (PC) 417, paragraphs 5, 41 and 57).  As Lord Gill noted, there were safeguards, such as the judge’s directions and the requirement of corroboration. 

[12]      In the present case, the two complainers made identifications prior to the trial.  Miss L made a positive identification.  Miss C made an identification by resemblance.  Thus in this particular case there was (i) a pre-trial identification by resemblance;  (ii) the sheriff’s unchallenged directions and warnings about the dangers of identification evidence;  (iii) the defence submissions to the jury about identification.  In the circumstances, it could not be said that permitting Miss C’s evidence identifying her attacker in court was “unfair”.  It had to be remembered that there was no challenge to the positive identification by Miss L.  In essence, the issue of Miss C’s identification was a jury question against the background of the application of the Moorov doctrine.  The case should be looked at as a whole (Howden v HM Advocate 1994 SCCR 19).  The similarity of the incidents was an additional safeguard when testing the second complainer’s identification.  There had been nothing unfair.  The sheriff had considered the applicable law and had made a decision which could not be described as unreasonable.  The issue of identification was ultimately one for the jury to test against a background of the sheriff’s directions.

Ground of appeal 3 (esto basis): intent to rape

[13]      The charge had to be assessed in the context of the trial.  Directions to the jury had to be tailored to fit the circumstances of the particular case (cf Grenfell v HM Advocate [2013] HCJAC 125).  This trial did not involve an allegation of rape (which now had a wider definition in law).  It was simply not necessary in the present case to give the jury the detail suggested by counsel.  The real issue was the identity of the perpetrator:  there was little doubt about the nature of the attack.

Ground of appeal 6: no reasonable jury, section 106(3)(b)

[14]      In this case there was a reasonably straightforward matter for the jury to assess.  There was nothing overly complicated which might suggest that the verdict reached was unreasonable.  It could not be said that “no reasonable jury could” have reached the verdict reached.

Discussion

Dock identification by Miss C

[15]      As Lord Justice Clerk Gill explained in paragraph [15] of Brodie v HM Advocate 2013 SCCR 23:

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

Thus an identification in court may properly be invited in circumstances where there has been no pre-trial identification of the accused by photographs, VIPER parade, or any other method.

[16]      But the present case was not one in which there was no pre-trial identification.  Miss C included the appellant as one of three selected at the VIPER parade as resembling her assailant (paragraph [8] of the sheriff’s report).  Moreover in evidence, she told the procurator fiscal that she thought that she would be able to identify her attacker if she saw him face-to-face.  She proceeded to identify the appellant in court in her evidence-in-chief.  She was then subjected to cross-examination by counsel for the defence.  All the perceived flaws in her identification were put to her.  In his jury speech, counsel emphasised the perceived weaknesses and flaws in Miss C’s identification, including the fact that she had failed positively to identify him from photographs and a VIPER parade.

[17]      We consider that the availability of cross-examination, the opportunity defence counsel has to address the jury on the weight of the evidence, the standard jury directions on the possible weakness of eye-witness identification (particularly when made by way of dock identification) and the requirement of corroboration are indeed major safeguards (Brodie v HM Advocate cit sup paragraph [15]).  In the present case, the jury were made thoroughly aware of the risks of identification evidence.  It was then a matter for them to assess the credibility and reliability of Miss C’s evidence. 

[18]      In the circumstances therefore we have not been persuaded that this is an extreme case of the sort envisaged by Lord Rodger in Holland v HM Advocate 2005 1 SC (PC) 3 at paragraphs [41] and [57].  Accordingly we do not accept that there is any merit in the first ground of appeal.

Direction concerning “intent to rape”

[19]      A trial judge’s directions should reflect the circumstances of the particular case (Grenfell v HM Advocate [2013] HCJAC 125).  In the present case, the evidence before the jury was summarised by the sheriff as follows:

“She had walked towards Albion Road and into Easter Road before turning left into Albert Street where she heard someone walk behind her.  She crossed the road and turned around.  She saw a young man smoking at the other side of the road on the other pavement where she had been walking just before.  A minute or so later she heard someone running behind her.  She turned around and saw that same person running up to her.  He pulled her then threw her across a parked car.  He said that he would give her £50 if she would pull down her trousers.  She said that at first she pretended not to understand what he had told her and he repeated it.  She told him no and that she did not want to pull down her trousers.  The man grabbed her arm more tightly than before and told her that she would follow him to a dark area with trees which was further along the street and would pull down her trousers there.  He pulled her against him and then pulled her along towards the area with the trees.  She said that she was thinking of a way to escape.  She thought that her assailant was trying to rape her.  After a few seconds she made him believe that she would follow him voluntarily and then she ran into the middle of the street screaming for help.  He stopped her and put his hand over her mouth so that she could not scream anymore.  He told her something like ‘shut up’.  To defend herself she bit one of his fingers in order to make her mouth free to scream and he punched her two or three times on the left side of her face at her left brow.  She fell on the ground and she could see him run away.”

[20]      The major issue for the jury to determine was the identity of the assailant.  Another issue for their determination was the intent underlying the attack, to be inferred from all the circumstances and the actings of the assailant.  Standing the evidence about the nature of the attack, as recorded by the sheriff’s summary of the evidence, we do not consider that it was necessary in this case for the jury to be given the legal definition of sexual intercourse. 

No reasonable jury:  section 106(3)(b)

[21]      Section 106(3)(b) of the Criminal Procedure (Scotland) Act 1995, as amended by section 17 of the Crime and Punishment (Scotland) Act 1997, provides:

“…a person may bring under review of the High Court any alleged miscarriage of justice, which may include such a miscarriage based on - …(b) the jury’s having returned a verdict which no reasonable jury, properly directed, could have returned.”

[22]      The ambit of section 106(3)(b) has been discussed in several decisions.  In King v H.M. Advocate, 1999 J.C. 226, at pages 228G to 229A, the court observed:

“In seeking to formulate the appropriate test we begin with the words of section 106(3)(b).  If we ask in what circumstances there may be the kind of miscarriage of justice which the provision covers, then it is obvious first of all that the jury will have returned a verdict convicting the appellant, since section 106 as a whole deals with appeals by persons who have pled guilty or been convicted by a jury.  So the verdict to which section 106(3)(b) refers is a guilty verdict.  The miscarriage of justice therefore arises where the jury return a guilty verdict which no reasonable jury properly directed could have returned.  The test is objective: the court must be able to say that no reasonable jury could have returned a guilty verdict on the evidence before them.  Since in any case where the provision is invoked the jury will ex hypothesi have returned a guilty verdict, their verdict will have implied that they were satisfied beyond reasonable doubt that the appellant was guilty.  What the appellant must establish therefore is that, on the evidence led at the trial, no reasonable jury could have been satisfied beyond reasonable doubt that the appellant was guilty.”

[23]      The court went on to state (at pages 229I to 230B):

“It follows from what we have said about the approach which this court should adopt that, although we require to examine the evidence which was before the jury, it is not for us simply to substitute our view of that evidence for the view which the jury took.  In particular, a miscarriage of justice is not identified simply because, in any given case, the members of this court might have entertained a reasonable doubt on the evidence.  If that were all that was required, Parliament would have gone far towards replacing trial by jury with trial by the judges of this court.  The words in the provision were clearly chosen to avoid any risk of that.  Applying the words which Parliament has enacted, we can quash the verdict of a jury only if we are satisfied that, on the evidence led at the trial, no reasonable jury could have been satisfied beyond a reasonable doubt that the appellant was guilty.”

[24]      In Kerr v H.M. Advocate, 2004 S.C.C.R. 319, the court confirmed that issues of credibility and reliability are pre-eminently for a jury to resolve.

[25]      We can therefore only quash the verdict of the jury if we are satisfied that, on the evidence led at the trial, no reasonable jury, on the directions given, could have been satisfied beyond reasonable doubt that the appellant was guilty of the attack.

[26]      We are unable to conclude that this high test has been satisfied.  Questions of credibility and reliability are pre-eminently matters for the jury.  The jury heard all the evidence, including the cross-examination of Miss C.  They also heard the defence jury speech pointing out the flaws in the Crown case, and the sheriff’s charge emphasising the dangers of identification evidence.  The question whether the appellant had been identified as the attacker by corroborated evidence beyond reasonable doubt was then one for the jury, and we are not persuaded that it could be said that, on the evidence led at the trial, no reasonable jury could have been satisfied beyond reasonable doubt that the appellant was guilty.  Accordingly this ground of appeal fails.

Decision

[27]      For the reasons given above, the appeal is refused.