APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Menzies Lord Brodie Lord Wheatley	[2012] HCJAC 139 Appeal No: XC420/12 OPINION OF THE COURT delivered by LORD BRODIE in Appeal in terms of section 74(1) of the Criminal Procedure (Scotland) Act 1995 by NC Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

Appellant: MacKenzie and Jones; Beaumont & Co, Edinburgh

Respondent: Brown QC AD; Crown Agent

18 September 2012

Introduction

[1] This is an appeal in terms of section 74(1) of the Criminal Procedure (Scotland) Act 1995 against a decision by the sheriff at Edinburgh refusing, under reference to a preliminary issue minute and an associated devolution minute, to hold that evidence of dock identification of the appellant was inadmissible at trial on the view that the leading of such evidence was incompatible with the appellant's rights under article 6(1) of the European Convention on Human Rights.

Procedural history

[2] The appellant appeared from custody on 19 May 2011 charged on petition with assault to severe injury and permanent disfigurement, the assault being alleged to have occurred in a nightclub on 12 May 2011. The appellant was released on bail subject to conditions which included a condition that she must attend an identification parade if reasonably requested to do so.

[3] The Crown disclosed witness statements to the defence from which those acting for the appellant ascertained that five witnesses were able to give evidence bearing on the identification of the person who had allegedly assaulted the complainer. The appellant had not previously been known to any of these witnesses. One witness, the complainer, had picked out a photograph of the appellant from an emulator sheet as the person she said had assaulted her. None of the other witnesses had apparently been shown an emulator sheet or been asked to participate in an identification parade or any similar procedure.

[4] On 1 November 2011 the case called for a first diet at Edinburgh Sheriff Court. The first diet was continued for the period of a week to allow the Crown to disclose, inter alia, the relevant emulator sheets and certain CCTV footage. On 7 November 2011, in terms of section 67(5) of the 1995 Act, the court allowed the emulator sheets to be added to the list of productions. No CCTV footage of evidential value was produced. On 8 November 2011 at the continued first diet, an application was made to the sheriff in terms of section 290 of the 1995 Act to order the prosecutor to hold an identification parade in which the appellant should be one of those constituting the parade. The sheriff being satisfied that the case was likely to proceed to trial on the date assigned and that that sitting was due to commence on 14 November 2011, refused the application as coming too late. Subsequently, on defence motion, the trial was adjourned to the sitting commencing 19 March 2012 and then, again on defence motion, to the sitting commencing 25 June 2012.

[5] The appellant brought a bill of advocation in respect of the sheriff's decision to refuse the application to order the holding of an identification parade. On 2 May 2012 that bill of advocation was refused by the Appeal Court.

[6] A preliminary issue minute and a devolution minute were lodged on 16 May 2012. In each minute it was stated that the appellant sought a declarator that the Lord Advocate had no power to seek a dock identification at trial (cf Brown v Stott 2000 SCCR 314 at 342). The minutes came before the sheriff on 4 July 2012. Notwithstanding the precise terms of the minutes parties were agreed that the sheriff should deal with matters as a preliminary issue on the question of the admissibility of the identification evidence . On 5 July 2012 the sheriff refused both minutes. The appellant now appeals that decision.

Submissions of parties

The appellant

[7] Miss MacKenzie, on behalf of the appellant, confirmed in the course of her submissions that what was looked for was a ruling, pre-trial, that any evidence in the nature of a "dock identification" was, in the circumstances of this particular case, inadmissible. She accepted that it would not apply to the complainer who had picked out a photograph of the appellant from an emulator sheet but it would apply to three eye-witnesses and a fourth witness, a police officer, who had viewed CCTV footage in the company of a door steward, which footage showed a female figure who, according to the door steward, had made an incriminating remark. Thus, notwithstanding the precise terms of the minutes and consistent with the approach of the sheriff, matters were conducted broadly as if the appellant had, as she was required to in terms of section 79 (1) and (2) (b) (iv) of the 1995 Act, given notice of an objection to the impugned evidence and the objection had then been considered at a first hearing as provided by section 71 (2) of the Act and the sheriff's decision on the objection had then been appealed, as provided by section 74 (1).

[8] It was not Miss MacKenzie's submission that dock identification is, per se, inadmissible, but she said that there were extreme cases where it would be unfair to allow the prosecution to rely on a dock identification where there had been no previous identification parade. This was such a case. On the disclosed evidence, identification of the person who had assaulted the complainer depended entirely on eye-witness evidence. As Miss MacKenzie offered to demonstrate by showing the court copies of the disclosed statements, the eye-witnesses had given differing descriptions of the assailant. The defence had invited the Crown to arrange an identification parade but the Crown had refused to do so. No reason had been advanced for this refusal. It was to be borne in mind that the circumstances in which the assault had occurred were very unfavourable to any reliable eye-witness identification. None of the eye-witnesses knew the appellant. The alleged offence had occurred in a nightclub, late at night, when all concerned had consumed alcohol. The opportunity to view the assailant had been fleeting. Witnesses referred in their statements to their "shock" at the events which they had witnessed. This made the holding of an identification parade all the more important. Doing so would be consistent with the Lord Advocate's Guidelines to Chief Constables on the Conduct of Visual Identification Procedures. Miss MacKenzie invited the court to follow the guidance which was available from the decisions of the Privy Council in Tido v The Queen [2012] 1 WLR 115 and France and Vassell v The Queen [2012] UKPC 28. That there might be an extreme case where a court should conclude that admitting dock identification evidence would inevitably render the trial unfair, had been recognised by Lord Rodger in Holland v HM Advocate 2005 1 SC (PC) 3 at para 41.

The respondent

[9] The advocate depute invited the court to refuse the appeal. Essentially, the appellant was inviting the court to evaluate the quality of evidence which might be led at trial. Not only was this to usurp the function of the jury but it was premature. It was conceded on behalf of the appellant that reliance on dock identification was not necessarily unfair (and this was a case which did not rely entirely on dock identification). Miss MacKenzie had said that this was an extreme case but she had not explained why. It would be for the trial judge to give an appropriate direction warning of the risks of eye-witnesses making a mistake in identification. The importance, and therefore the value, of such directions had been recognised by Lord Kerr giving the judgment of the Privy Council in Tido v The Queen supra at para 21. The Lord Advocate's guidance which had been referred to by Miss MacKenzie was not authoritative. While identification in this case relied very substantially on eye-witness evidence there were some other adminicles spoken to by the complainer. The Crown had refused a request for an identification parade but the request had come late and the Crown's refusal had been upheld by the court. The Lord Advocate's Guidelines do not require an identification parade in every case.

Discussion

[10] As a trial judge will direct a jury, in any case, if it is to secure a conviction, one of the essential facts that the Crown must prove, and prove beyond reasonable doubt by corroborated evidence, is that the accused was responsible for committing the crime charged in the indictment: Morton v HM Advocate 1938 JC 50 at 54. The evidence relied on by the Crown may come from a variety of sources but one sort of evidence which is very commonly led, where it is available, is evidence of eye-witness identification, that is the evidence of a witness who speaks to having observed a person whom the witness identifies as the accused (or who, to a greater or lesser extent, resembles the accused) doing something or being somewhere which in some way incriminates that person as being responsible for the crime. Indeed eye-witness evidence may be the only evidence relied on by the Crown (as was said by the appellant to be the case here). The risk of misidentification by an eye-witness of someone who is a stranger and the consequent risk of miscarriage of justice in a prosecution that rests on eye-witness identification are notorious: Gage v HMA (No 1) 2012 SCCR 161 at para 29. Where identification is in issue in a case the jury must be reminded of the potential unreliability of eye-witness evidence: Lord Justice-General's Practice Note of 18 February 1977, McAvoy v HM Advocate 1992 SLT 46 at 50 to 51. The risk of mistake is heightened when the witness is first asked to make an identification of the accused in circumstances which suggest that he is the perpetrator of the crime. This has been long recognised. In a passage from Alison Practice of the Criminal Law of Scotland (1833) at p 628 which was noticed by the Lord Justice-Clerk, as he then was, in Holland v HM Advocate 2003 SCCR 616 at para 35 and quoted from by Lord Rodger when the same case was before the Supreme Court (Holland v HM Advocate 2005 1 SC (PC) 3 at para 50), the author observes in relation to a supposed identification of the accused:

"... if the witnesses for the prosecution ...merely identify him when he is standing between the officers, [counsel for the prisoner] has always the observation to make to the jury that his being in that situation helped them to believe he was the same."

[11] That the witness has, previously to his giving evidence, been asked to identify the person whom he observed through a procedure where the witness has been required to make a choice as among a number of subjects presented in a line-up, one of whom is the accused (an "identification parade"), may be said to reduce the risks of misidentification (see eg Holland v HM Advocate 2005 1 SC (PC) 3 at para 47). If the witness picks out the accused from among others in a line-up of persons of similar appearance, then the witness can be said to have truly demonstrated his ability to identify the accused as the person he originally observed. On the other hand, if the parade is inconclusive in the sense that the witness is unable to identify the accused as the person he saw then, should the prosecution lead that witness to speak to identification at trial, the defence has a powerful criticism to level at the reliability of the witness's identification both in cross-examination and in addressing the jury. Identification parades have long been a routine feature of police investigations. In Holland v HM Advocate 2003 SCCR 616 at para 33 the Lord Justice Clerk indicated that in cases where identification was in issue good practice requires that there should be an identification parade. Holding identification parades in Scotland has been made easier by the adoption in about 2004 of a method which involves the witness making a selection from a number of moving images, the images of the "stand-ins" being held on an electronic data base. It is referred to as Video Identification Parade Electronic Recording ("VIPER"). The Lord Advocate has issued the Guidelines to Chief Constables on the conduct of visual identification procedures which were referred to by Miss MacKenzie, albeit, as was observed by Lord Eassie in delivering the opinion of the court in Hanif v HM Advocate 2009 JC 191 at para 27, these are only guidelines issued by the executive to police officers with no legal status beyond that.

[12] It will generally be necessary to ask an eye-witness to make an identification in court of the accused as the person to whom he is referring in his evidence: Bruce v HM Advocate 1936 JC 93, Stewart v HM Advocate 1980 JC 103, Holland v HM Advocate 2003 SCCR 616 at para 27, Murphy v HM Advocate 2007 SCCR 532 at para 90. Where the witness has not previously been asked to make an identification at an identification parade and the witness does not claim previous acquaintance with the person identified, this is commonly referred to as a "dock identification". It is open to the criticism made by Alison: the accused "being in that situation" (in the dock) can always be said to have helped the eye-witness to believe he was the same person whom the eye-witness originally observed in incriminating circumstances. Not only does a dock identification lack the safeguards that are offered by an identification parade but it positively increases the risk of wrong identification by suggesting to the witness that the person in the dock is the person who is said to have committed the crime: Holland v HM Advocate 2005 1 SC (PC) 3 at para 47. That, however, does not have the result, as a matter of Scots law, that a dock identification is, as a general rule, inadmissible or that a trial where such an identification is relied on by the Crown is necessarily unfair in terms of article 6 of the European Convention on Human Rights: Holland v HM Advocate 2003 SCCR 616, the Lord Justice-Clerk at paras 33, 34, 39 and 46 Holland v HM Advocate 2005 1 SC (PC) 3 Lord Hope at paras 5 and 6, Lord Rodger at 41 and 55 to 57. Lord Rodger put it this way in Holland at para 41:

"While one cannot exclude the possibility that, in an extreme case, the judge could conclude that admitting dock identification evidence would inevitably render the trial unfair, normally the requirement of article 6 will not raise any issue of admissibility."

[13] Consistent with Holland, Miss MacKenzie did not argue that, as a matter of generality, dock identification was inadmissible. Rather, her position was that this was an extreme case, such as envisaged by Lord Rodger, where the court could conclude that admitting dock identification evidence would inevitably render the trial unfair. For the case being "extreme" Miss MacKenzie relied upon the Crown depending wholly upon eye-witness evidence which, as Miss MacKenzie offered to demonstrate by reference to the disclosed police statements, was particularly weak. This, as Miss MacKenzie reminded us, was an allegation of an assault in a nightclub which had offered only a fleeting opportunity for recognition of the assailant and which occurred when those involved had been drinking. Miss MacKenzie further relied upon the refusal of the (unusual) defence request of the Crown that it should hold an identification parade. No satisfactory explanation of that refusal had been proffered.

[14] We cannot agree with Miss MacKenzie's description of this as an "extreme case", as envisaged by Lord Rodger. Indeed, other than the feature that the defence requested the Crown to hold an identification parade, we would regard this as a rather commonplace case of the sort (where the consequent injury is less) which will frequently form part of the sheriff's summary business. That the identification evidence will essentially or perhaps exclusively comprise eye-witness testimony does not, in our view, take the case out of the ordinary run of cases. The strength of that evidence will be for the jury to evaluate. Although no identification parade was held, this is not a case where the evidence available to the Crown consists solely of dock identifications. We were informed that the complainer picked out the appellant from a photographic emulator sheet and therefore any identification that she makes in court will be subject to the sort of safeguard which is provided by an identification parade. As it appeared to us, Miss MacKenzie's argument completely failed to recognise the strength of the word "extreme" in the passage quoted from Lord Rodger's opinion in Holland. What is being envisaged by Lord Rodger is the truly exceptional case. This has to be so when one considers what is involved in a finding of inadmissibility of dock identification on the ground of unreliability or unfairness. It would require a departure from what the Lord Justice Clerk in Holland v HM Advocate 2003 SCCR 616 at para 46 described as "a central feature of our system of criminal justice that the court has sanctioned repeatedly over the years with stringent safeguards". The departure would be on the basis of an assessment by the court of the quality of evidence which has not yet been led and the fairness of a trial which has not yet been conducted. Apart from anything else, in the vast majority of cases (into which category this case would fall) such an exercise would seem self-evidently to be premature. Miss MacKenzie invited us to look at police statements in order to demonstrate discrepancies as between the descriptions of the assailant given by the eye-witnesses to the police. We declined to do so, on the view that what Miss MacKenzie was suggesting was entirely inappropriate. Evidence at trial is given by means of oral testimony. That testimony may or may not be entirely accurately foreshadowed by what appears in the witnesses' police statements but as yet we simply do not know about that. While appearances may sometimes suggest the contrary, as yet we do not in Scotland have a system of trial by statement. The only evidence that is relevant to determination of the guilt of the accused is what the witnesses say in the witness box. To attempt an assessment of the extent and quality of evidence before it is given is essentially a meaningless exercise. However, an even more fundamental objection to what Miss MacKenzie was proposing is that it requires the court to make a judgement on the evidence available to the Crown whereas in solemn procedure assessment of evidence is, as we have already observed, a matter for the jury: Holland v HM Advocate 2003 SCCR 616 at paras 36 and 39, Gage v HMA (No 1) 2012 SCCR 161 at para 28.

[15] Miss MacKenzie argued that the issues arising out of the Crown's proposal to lead dock identification evidence had to be dealt with as a matter of admissibility because, once the evidence was led, "the cat was out of the bag". By this we took her to mean that the appellant had suffered irremediable prejudice. We disagree. It appears to us that Miss MacKenzie's position seriously underestimates the value of the stringent safeguards referred to by the Lord Justice Clerk in Holland. These include the requirement for corroboration, the availability of cross-examination, the opportunity defence counsel has to address the jury on the weight of the evidence and the standard jury directions on the possible weakness of eye-witness identification, particularly when made by way of dock identification. We also see Miss MacKenzie's position as seriously underestimating a jury's ability to discern when evidence presented to it is unsatisfactory and accordingly reject it. Moreover, in the event of conviction, possible grounds of appeal include that provided by section 106(3)(b) of the Criminal Procedure (Scotland) Act 1995, that the jury's verdict was one which no reasonable jury, properly directed, could have returned. It would then be open to the appeal court to consider the verdict in the light of all the evidence, having regard to all the elements in the proceedings, including the way in which the identification evidence was obtained: cf Holland v HM Advocate 2005 1 SC (PC) 3, at para 41, Jenkins v HM Advocate 2011 SCCR 575.

[16] Although she did not challenge, indeed she founded upon, the statements as to the applicable law which appear in Holland, Miss MacKenzie sought to persuade us that we should also have regard to certain decisions of the Privy Council made subsequently to Holland and, in particular, to Tido v The Queen supra which, she advised us, had recently been considered by another bench of the Appeal Court in a case which has yet to be determined. It was Miss MacKenzie's submission that we should follow the reasoning in Tido with a view, as we understood the submission, to concluding that the admission of dock identification evidence in the present case would imperil a fair trial. Reference was also made, in the written submission for the appellant, to Pipersburgh v The Queen [2008] UKPC 11 (an appeal from the Court of Appeal of Belize), Neilly v The Queen [2012] 2 Cr App R 20 (an appeal from the Court of Appeal of the Commonwealth of the Bahamas), France and Vassell v The Queen supra (an appeal from the Court of Appeal of Jamaica), and Williams v The Queen [1997] 1 WLR 548 (an appeal from the Court of Appeal of Jamaica).

[17] The first observation to be made about Tido is that it is a decision of the Judicial Committee of the Privy Council on appeal from the Court of Appeal of the Commonwealth of the Bahamas and therefore a case determined according to the laws of the Bahamas. Accordingly, while of course of interest, it can only have a limited amount to say about the law of Scotland on a matter where the law is settled by decisions of the High Court of Justiciary sitting as the Appeal Court and of the Privy Council on appeal from the determination of a devolution issue. The same can be said about the other decisions referred to which were on appeal from the Bahamas, Belize or Jamaica. The law of Scotland as it relates to the circumstances in which use can be made of dock identification cannot be taken to be the same as the law of other, albeit otherwise comparable, jurisdictions: Holland v HM Advocate 2003 SCCR 616 at para 31, Holland v HM Advocate 2005 1 SC (PC) 3, at para 3, Tido v The Queen supra at para 22. Granted, points are made in these appeals from the Bahamas, Belize and Jamaica which resonate with points which have been made in Scottish cases: it is desirable that witnesses speaking to identification of a stranger should participate in an identification parade prior to trial; the jury should be particularly directed as to the dangers of mistaken identification by an eye-witness; and while the facts that no identification parade has been held and a witness identified an accused for the first time when he was in the dock does not make the identification evidence inadmissible, these circumstances call for additional jury directions highlighting the specific risks associated with dock identification. However, and here we turn particularly to the case of Tido v The Queen, which Miss MacKenzie sought to persuade us to follow, not everything said about the law of and practice in the Bahamas applies in Scotland. It would appear (Tido v The Queen supra at paras 21 and 22) that in the Bahamas while a dock identification is not inadmissible per se, its admissibility is always a matter to be determined by the trial judge in an exercise of discretion, having regard to all the circumstances in the case, including the reasons why an identification parade was not held. That is simply not any part of the law of Scotland. Therefore we have not found Tido to be of assistance in resolving the issues raised in this appeal.

[18] For the reasons articulated above we consider that the sheriff was correct to refuse to hold the evidence referred to in the two minutes for the appellant to be inadmissible. This appeal is accordingly refused.