Appellant: Keane; Faculty Services Limited (for AC Miller & MacKay, Perth)

Respondent: Scullion QC AD; the Crown Agent

5 November 2014

Introduction
[1]        On 8 April 2014, at the High Court at Perth, the appellant was convicted of charges of rape and attempted robbery (charge 1), rape and robbery (charge 3), and assault with intent to rape (charge 4).  On 30 April 2014, the judge imposed an extended sentence of 10 years and 11 months with a custodial element of 7 years and 11 months in respect of charges 1 and 3, with a concurrent sentence of 3 years in respect of charge 4. 

[2]        The appellant appeals against his conviction on the ground that, to allow the jury to consider the evidence of identification of the appellant by the complainers from police emulator sheets, rendered the trial unfair in terms of Article 6 of the European Convention in circumstances where the complainers in charges 1 and 3 had subsequently failed to identify him at VIPER parades.  This unfairness was, it was said, aggravated because the Crown had not sought any dock identification from the second of these complainers.  The complainer in charge 4 did make a dock identification.  Identity was not in dispute on that charge.  Nevertheless, it was argued that the jury would have been influenced by the evidence of the first two complainers and that there was a miscarriage of justice in respect of not only charges 1 and 3, but also charge 4.

[3]        It should be noted at the outset that there was no timeous objection taken at the Preliminary Hearing to the admission of the evidence of identification from the first two complainers using the emulator sheet method.  The court declined to entertain a late objection in that regard at the trial diet.  There is no appeal against that decision.  Consequently, the court must proceed on the basis that the evidence of identification, using the emulator sheets, was properly admitted as a matter of law and that that in itself was not unfair.

Proceedings at trial
Circumstances of the offences
[4]        The offences took place over the course of some 9 weeks, in Perth; charge 1 having been committed on 5 December 2012 and charges 3 and 4 on 14 and 15 February 2013.  On each occasion, the particular complainer had been working as a prostitute.  The assailant arranged to meet each one at a flat in the city.  The complainer in charge 1 testified that the appellant had sexually assaulted her, demanded money and then raped her.  The complainer in charge 3 described a similar but more prolonged sexual assault and subsequent rape, with the appellant demanding money from her.  Some £60 and a quantity of Thai baht was taken from her handbag.  The complainer in charge 4 described the appellant meeting her at the same flat as that libelled in charge 1, sexually assaulting her and demanding money also.  However, on that occasion, the complainer shouted for help and the appellant had left.  In each case therefore, so far as identification is concerned, there was no suggestion that the complainers were not in a position to observe the assailant over a significant period of time and thus to be able to make a subsequent accurate identification. 

The identification evidence

[5]        The first and second complainers had been shown police emulator sheets, consisting of 12 still photographs showing the faces of persons (including the appellant), from which they had each positively identified the appellant within a few weeks of the offences.  In particular, the first complainer had carried out this exercise on 21 February and the second on the following day, 22 February 2014.  However, each of these two complainers had failed to identify the appellant at VIPER parades, involving 9 video clips of the heads of persons (including the appellant), which took place some months later.  In the case of the first complainer, this was on 22 May and in relation to the second, it was on 23 August 2013.  During the course of the trial, the Crown had not sought to rely on any dock identification in respect of the first two complainers.  Indeed, that would not have been possible in respect of the first complainer, who gave her evidence screened from the accused.  The complainer on charge 4 did identify the appellant in the dock, having also done so at a VIPER parade.

[6]        Each of the first two complainers was cross-examined on her identification of the appellant.  For example, the first complainer accepted that the assailant had a different hairstyle from that shown in the emulator photograph of the appellant.  She accepted that she had not picked out the appellant at the VIPER parade, but explained that she had been sick at the time and had advised the police of that.  The second complainer accepted that she had said at the VIPER parade that her assailant had had a birthmark on his cheek, although there was no evidence that the appellant had such a mark.  She accepted that she had seen a similar looking man at the post office on the day after the assault, but that he had had no teeth, whereas the appellant did. 

[7]        The police officers who had shown the emulator sheets to the complainers were cross-examined on the procedure which had been followed.  It was emphasised during the course of cross, and accepted by the police, that there had been no formal record of the procedure and that their evidence of the identification process was based on their memories alone. 

[8]        The Crown led further evidence in support of the identifications.  The first complainer had described her assailant as “bouncing around like a boxer”.  In his police interview, the appellant had said that he had trained as a boxer.  There were CCTV images showing the appellant in the city centre shortly after the attack on the second complainer.  Further CCTV images showed him at a post office nearby on the following day.  There was evidence led from the post office staff that someone had exchanged a quantity of Thai baht. 

Charge to the jury

[9]        In his charge, the trial judge advised the jury that the obvious issue in respect of charges 1 and 3 was whether they accepted the evidence of identification given by each of the two complainers, when combined with the other evidence relied upon by the Crown in support.  The jury were given the standard directions on identification evidence and, in particular, that they required to take “some care” in relation to the evidence in circumstances where the complainers had identified the appellant from the emulator sheets, but had failed to do so at the VIPER parades.  Although identification was not an issue in respect of charge 4, the trial judge cautioned the jury in relation to the value of the dock identification.  It was pointed out to the jury that the process of showing emulator sheets to the complainers did not have the same features or safety as existed with parades, such as a VIPER. 

[10]      The points made in the appellant’s speech in respect of the identification evidence had been highlighted by the trial judge in his charge.  The appellant had addressed the jury on the basis that the evidence was unreliable and ought to be rejected.  The criticisms which were made in relation to the fairness and transparency of the emulator procedure were drawn to the jury’s attention, as was the failure to identify the appellant at the VIPER parades.

Submissions
Appellant
[11]      The submissions from the appellant reflected those made to the trial judge at the end of the evidence.  The trial, when looked at as a whole, had been unfair in terms of Article 6 of the European Convention.  In particular, it had been unfair to allow the evidence of the emulator sheet identifications to be considered by the jury in circumstances where there had been a failure to identify at the subsequent VIPER parades.  This was particularly so, as the Crown had relied on the application of mutual corroboration.  The fact that the Crown had not sought a dock identification of the appellant by the second complainer was, rather unusually, said to have caused further prejudice.  In short, under reference to Docherty v HM Advocate [2014] HCJAC 71; Robson v HM Advocate [2014] HCJAC 3; Brodie v HM Advocate 2013 JC 142; and NC v HM Advocate  2012 SCCR 702, it was argued that the manner in which the trial had been progressed had been so unfair that it could not be cured by the directions of the trial judge (N v HM Advocate 2003 JC 140).  The trial judge ought to have sustained the submission and directed the jury to acquit in respect of charges 1 and 3.  If he had done so, then a similar direction should have been given in respect of charge 4, having regard to the potential influence of the evidence of the other complainers.

Decision
[12]      Although there was some criticism about the use of emulator sheets as potentially prompting the jury to think that there may have been some prior involvement on the part of the appellant with the police, this was not said to have amounted to an implied disclosure of previous convictions in contravention of the statutory prohibition (Criminal Procedure (Scotland) Act 1995, s 101).  If such a point were to have been advanced, it would have required to have been the subject of a timeous objection, which it was not.  In any event, as was made clear in Docherty v HM Advocate [2014] HCJAC 71 (LJG (Gill) at para 22), reference to an identification from police photographs is not inadmissible per se.  In this case the jury would not have been aware, simply from the use of emulator sheets, of any form of prior involvement with the police.

[13]      It was not suggested that there had been insufficient evidence competently led to support the convictions.  Rather the proposition was a very general one of unfair trial, because of what was said to be the contradictory nature of the complainers’ identification evidence and a lack of safeguards, such as a written record, in the emulator sheet process.  However, again, any issue about that process as a discrete matter would have to have been raised in the context of an objection to the evidence on the basis that it had been unfairly obtained. 

[14]      The circumstances are very similar to those in Docherty v HM Advocate (supra), in which the complainer had identified the appellant from an emulator sheet and made a dock identification, but had failed to identify him at a VIPER parade.  The court regarded it as unnecessary to decide the question of the evidential weight of emulator sheets because the evidence led by the Crown, looked at as a whole, was cogent.  The same is true here, particularly in light of the evidence in support of that of identification, notably: the first complainer’s description of the appellant’s movements and the appellant’s reference to having trained as a boxer; the CCTV images of the appellant in the city centre and at the post office shortly after the alleged offence; and the evidence of the post office staff relative to the exchange of Thai bahts.

[15]      As already observed, evidence of identification from police emulator sheets is not inadmissible per se.  In normal circumstances, the weight to be given to such evidence is a matter for the jury, subject to the safeguard of a cautionary direction by the trial judge.  Whether a VIPER parade identification is a better form of identification in terms of quality than one from emulator sheets, or vice versa, will be a matter of fact for the jury to determine depending upon the particular facts and circumstances of the individual case.  The existence of a formal record of the procedure is no doubt one element but so are the timings of the identifications, the condition of a complainer at the material time and whether the accused’s known appearance at the time of the offence was better represented in the emulator sheet photograph or the VIPER image.  In this case, the passage of time between the two identification processes may well have had a significant influence on the jury’s reasoning.

[16]      The appellant had the opportunity to challenge any apparent inconsistencies in the complainers’ evidence.  He took full advantage of the opportunity to do so in cross-examination of both the complainers and the police and in his speech to the jury.  The trial judge provided comprehensive directions to the jury on how to approach identification evidence and on the potential significance of the procedures followed in respect of emulator, VIPER and dock identifications.  There was no suggestion that there had been any misdirection by the trial judge on these aspects. 

[17]      In all these circumstances, looking at the trial as a whole, it cannot be said that any unfairness, in the Convention sense, arises.  In these circumstances, this appeal is refused.