For the appellant: Ogg, Sol Adv;  McCusker, McElroy & Gallanagh, Paisley

For the Crown: Wade QC, AD;  Crown Agent

13 June 2014

Introduction

[1]        On 8 October 2013 the appellant was convicted at Paisley Sheriff Court of the following charge:

“On 8 June 2013 at Bottles Off Sales, 98 Causeyside Street, Paisley you Martin Docherty did assault Hugh McIlraith … present a knife at him, repeatedly attempt to strike him with said knife, demand money, struggle with him and did rob him, of £40 or thereby of money; you Martin Docherty did commit this offence whilst on bail, having been granted bail on 10 April 2013 at Glasgow Sheriff Court.”

[2]        He appeals against conviction on the grounds that the sheriff erred (1) in repelling an objection taken by his solicitor to the allowance of a dock identification and to the admission of evidence of identification from photographs on an emulator board; (2) in repelling submissions in terms of section 97 and 97A of the Criminal Procedure (Scotland) Act 1995; and (3) in failing to direct the jury as to the definition of and requirements for the crimes of assault and robbery; and that (4) the verdict was one that no reasonable jury, properly directed, could have returned.

The evidence

 [3]       On the evening of 8 June 2013 the complainer was working alone at the off-licence libelled.  At around 9pm a man entered the shop with his hood up.  He went behind the shop counter, produced a Stanley knife and lunged towards the complainer.  A struggle ensued.  The intruder ran out of the shop and down Causeyside Street.  As he left he dropped £30 in notes.

[4]        Less than two days after the incident the complainer was shown an emulator sheet containing photographs of 12 people.  From that he identified the appellant.  On 23 September 2013 the complainer made a false identification of his assailant at a VIPER parade.  On that occasion he said that he was 80% certain about his identification.

[5]        At the trial, the complainer described the assailant’s face.  He said that the assailant was about 5 feet 10 inches in height with some stubble.  He said that he remembered the man’s eyes and would recognise him again.  He accepted that in a statement to the police on 16 July 2013 he had made no mention of the assailant’s eyes or face.   He then identified the appellant in the dock. 

[6]        The complainer said that he was surprised that he failed to identify the appellant at the VIPER parade.  He said that his identification from the emulator board would have been the more reliable identification.  He accepted that he might be wrong in his dock identification of the appellant but said that he was “90% sure.”  However, he was “100% sure” that the person whom he had identified on the emulator sheet was the person who had carried out the robbery.

[7]        The incident was recorded on the shop’s CCTV.  The video was shown to the jury.  The intruder’s face could not be seen.  He was wearing a light blue/grey hooded top, jeans with a letter ‘V’ on both of the back pockets and white trainers. 

[8]        The jury also saw CCTV footage recorded earlier on the same day at Fitzallan Court where the appellant lived in homeless accommodation.  According to the complainer the man shown in that footage was wearing the same clothing as the assailant, with the exception of a baseball cap.  Other witnesses identified the man as being the appellant.

[9]        The witness Paul Elmes was outside a bar next to the locus at around 9pm.  He said that he saw a man wearing a hooded top and jeans.  His jeans had white ticks on both of the back pockets.  The man walked past him with his head down and entered the off-licence.  The alarm in the off-licence went off.  The man ran out of the shop.  He saw the complainer retrieving money from the ground outside the door.  He could not identify the person who ran off.  He confirmed that the man in the recording from the Fitzallan Court CCTV wore clothing that was similar to that of the man who entered the off-licence.

[10]      DC Ewan Keil said that on the day after the incident he went to the appellant’s flat in relation to a different matter.  He saw jeans in the flat that had distinctive white ‘v’ symbols on the rear pockets.  From the concierge book at Fitzallan Court he saw that the appellant had signed out at 12.58pm on 8 June and returned at 7am on 9 June.

[11]      The CCTV footage from Fitzallan Court timed at 12.58pm on 8 June showed that when the appellant left the building he was wearing similar clothing to the man who had carried out the robbery.  He was wearing a blue/grey top, jeans and white trainers.  When he returned on the following day he was wearing a different top. 

[12]      DC Keil accepted that the photograph of the appellant on the emulator sheet was an old photograph and that the appellant at that time had longer hair and looked slightly heavier.  He accepted that VIPER parades were generally fairer.  He also accepted that DNA and fingerprint recoveries did not incriminate the appellant. 

The objections at the trial

Emulator sheets

[13]      The solicitor for the appellant objected to the evidence of the emulator sheet because it showed 12 people of whom the police had photographs.  The implication was that the appellant was of bad character.  The sheriff repelled the objection on the grounds that the jury were unlikely to know how the police obtained the photographs, and were in any event likely to be aware of the fact that the appellant had some previous involvement with the police since the indictment libelled a bail aggravation.

[14]      The complainer said that he had identified the appellant from the emulator board and in the dock by reason of his eyes.  In the photograph the appellant’s eyes were closed.  The evidence suggested that the appellant’s appearance had changed since the photograph was taken.

[15]      At the close of the Crown case the appellant’s solicitor submitted that for these reasons there was no proper evidence of identification from the emulator photograph.  The sheriff repelled the submission on the view that these were matters for the jury.

Dock identification

[16]      The appellant’s solicitor submitted that the dock identification was invalid because the complainer had failed to identify the appellant at the VIPER parade.  She relied on Holland v HMA (2005 SCCR 417, Lord Rodger of Earlsferry at para 57).  The sheriff ruled that this was not an extreme case in which the dock identification was invalid.

Submissions for the appellant

Identification

[17]      The solicitor advocate for the appellant submitted that identification by reference to police photographs is invalid per se.  It implies that the accused has a criminal record.  Further, it is made in the absence of the accused.  There is no opportunity to see whether it has been conducted fairly.  The Crown should not rely on identification by police photographs especially where an identification parade has been held.  In any event the sheriff should have directed the jury that no adverse inference could be drawn from the photographs.  The Appeal Court in England excluded the use of police photographs before a jury because of the ‘rogues gallery effect’ (R v Varley (1914) 10 Cr App R 125; R v Palmer (1914) 10 Cr App R 77; R v Goss (1923) 17 Cr App R 196; R v Seiga (1961) 45 Cr App R 220; R v Lawrenson (1961) Crim LR 398; R v Dwyer and Ferguson (1925) 2 KB 799).  Because of the appellant’s different appearance in the photograph used the reference to it was contrary to the Lord Advocate’s Guidelines to Chief Constables on the Conduct of Visual Identification Procedures (February 2007).

[18]      The solicitor advocate submitted that the dock identification was unfair since the identification from the photograph was unsatisfactory and since the complainer failed to identify at the VIPER parade.  This was a case where, as had been envisaged in Holland v HMA (supra), the dock identification was unfair and in breach of article 6.

Sufficiency of evidence

[19]      The solicitor advocate for the appellant submitted that in any event there was no corroboration of the dock identification.  There was nothing distinctive about the assailant’s clothing.  There was no scientific evidence to link the appellant to the crime.

Misdirection on assault and robbery

[20]      The solicitor advocate for the appellant submitted that the trial judge erred in failing to direct the jury as to the definition of assault and robbery (Williamson v HMA 1984 SLT 200).

Unreasonable verdict

[21]      Taking all of those grounds together, the solicitor advocate submitted that the verdict was one which no reasonable jury, properly directed, could have returned.

Conclusions

[22]      The case for the appellant went to the length of suggesting that emulator evidence and the consequent dock identification were inadmissible.  In my opinion, it is not the Law of Scotland that reference to an identification from police photographs is inadmissible per se.  Circumstances could conceivably arise where the court would hold that such a reference was unfair and would exclude it.  But in the normal case the weight to be given to such evidence is a matter for the jury and the admission of such evidence will be subject to the safeguard of a cautionary direction by the trial judge.  Likewise a dock identification is not inadmissible per se, except perhaps in an extreme case (Holland v HM Adv, supra, at para [57]);  and it is not necessarily made inadmissible by the fact that the witness has not made a previous identification, or, in my view, has identified a different person on a previous occasion (Brodie v HM Adv 2013 SCCR 23; Robson v HM Adv 2014 HCJAC 53).

[23]      The dangers in a case based solely on identification evidence were explained to the jury by the sheriff.  Recognising the importance of the issue, the sheriff devoted part of his charge, occupying no fewer than ten pages of the transcript, to pointing out every shortcoming and every criticism of the identification evidence in the case.  He did so in language that was wholly favourable to the defence.  In any event, it is unnecessary for us to decide this case on the various propositions of the solicitor advocate for the appellant as to the admissibility and the evidential weight of either emulators or dock identifications, because the evidence for the Crown, looked at as a whole, amounted to a cogent case.  The signing in and out of the concierge book at Fitzallan Court showed that the appellant was not at home at the time of the robbery.  The CCTV evidence there showed the appellant leaving the premises before the robbery wearing the distinctive jeans and white trainers, and returning after the robbery wearing a different top.  The witness Paul Elmes saw the assailant at the locus wearing the distinctive jeans and white trainers.  There was then the chance discovery of jeans with similar markings in the appellant’s flat on the day after the incident.  In my opinion, it was open to the jury to see this as convincing evidence that the appellant was the assailant. 

[24]      For these reasons, I would reject grounds of appeal 1,2,3 and 5.

[25]      In ground of appeal 4 it is suggested that the failure of the sheriff to define the crimes libelled was a misdirection.  I do not agree.         There was CCTV evidence showing the intruder brandishing a Stanley knife at the complainer, pulling money out of the till and running away.  As the sheriff pointed out to the jury, the defence accepted that there had been an assault and a robbery.  In my opinion, the sheriff was right to focus on the essential questions and not to complicate the charge with directions on a matter that was not in dispute and on which the facts spoke for themselves.

[26]      On the view that I have taken in this case, it follows that the verdict cannot be described as unreasonable in any respect.

Disposal

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

For the appellant: Ogg, Sol Adv;  McCusker, McElroy & Gallanagh, Paisley

For the Crown: Wade QC, AD;  Crown Agent

13 June 2014

[28]      I am in complete agreement with the views expressed by your Lordship in the chair, and for these reasons I agree that this appeal should be refused.

For the appellant: Ogg, Sol Adv;  McCusker, McElroy & Gallanagh, Paisley

For the Crown: Wade QC, AD;  Crown Agent

13 June 2014

[29]      I am also in complete agreement with the views expressed by your Lordship in the chair and for these reasons I agree that this appeal should be refused.