APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Reed Lord Clarke Lord Woolman	(2009) HCJAC 91 XC591/06 XC598/06 XC606/06 OPINION OF THE COURT delivered by THE RIGHT HONOURABLE LORD REED in APPEAL AGAINST CONVICTION by (FIRST) JOHN ANDERSON (SECOND) BRADLEY McLENNAN AND (THIRD) RYAN WICKSTED Appellants; against HER MAJESTY'S ADVOCATE Respondent: _____________

For the first appellant: Shead; BCKM

For the second appellant: Taylor, Solicitor Advocate; Gilfedder & McInnes

For the third appellant: Scott, Solicitor Advocate; George More & Co

For the respondent: Di Rollo QC; Crown Agent

4 December 2009

Introduction
On 28 July 2006 the appellants were convicted after trial at Edinburgh Sheriff Court of a charge in the following terms:

"on 1 May 2005 at Gorgie Road, Wardlaw Place and the common stair at 6 Wardlaw Street, all Edinburgh you...did while acting together assault Khalid Iqbal... and did chase him, kick open the door of said premises at 6 Wardlaw Street, Edinburgh, knock him to the ground and repeatedly punch and kick him on the head and body, all to his severe injury and permanent disfigurement; and it will be proved in terms of Section 6 of the Crime and Disorder Act 1998 that the aforesaid offence was racially aggravated."

The circumstances of the offence are summarised by the sheriff in his report to this court as follows. The complainer, Mr Khalid Iqbal is of an Asian ethnic origin. About midnight on the date in question he was walking on Gorgie Road, Edinburgh in the company of his girlfriend, Leanne Skivington, who is white. Two people, probably Anderson and McLennan, approached them and abused the complainer verbally, calling him a "black bastard" and a "Paki". There was an aggressive exchange, probably involving some punches. This part of the incident was, however, comparatively trivial and the charges which dealt with these events did not reach the jury. The complainer ran away but reappeared after about five minutes. At this point the other two men were joined by a third man, probably Wicksted, and they chased the complainer into a close. The complainer gained entry to the close, probably by pretending to be a pizza delivery man. The three attackers kicked the main door of the close open and followed the complainer upstairs. Once they had cornered him on a landing, they subjected him to a sustained attack using their fists and feet. The complainer described being punched, kicked and stamped on. He drifted into unconsciousness. The attack involved a lot of noise and was ended when a resident, Mr Alistair Rose, came out of his flat with a piece of wood and shouted at the attackers to stop. At this they ran downstairs and out of the close to where Miss Skivington was waiting, being reassured by Wicksted's girlfriend. Anderson said to Miss Skivington, "Ha ha, your paki boyfriend is dead". He added that Miss Skivington would get the same if she said anything. The attackers went on their way and Miss Skivington went upstairs in the close, where she found the complainer lying in a pool of blood.

Desertion of the diet
It was contended on behalf of each of the appellants that the sheriff ought to have granted their application to desert the indictment (sic) prior to the leading of any evidence, or in any event ought to have granted a similar application which was made after the complainer had given evidence.

The background to these applications was as follows. While the jury was being empanelled, the complainer was precognosed by a colleague of the procurator fiscal depute in a witness room in the Sheriff Court. At the end of the precognition he was asked if he could identify his assailants. His response, as recorded by the precognoser, was:

"I didn't know any of the assailants. I'm not sure if I could identify them again. Before I came through here there were three guys and one of the police ladies said it was them outside. I said I cannot be sure. She said, 'Once they're out I'll take you through as I think they're the people.'"

The procurator fiscal depute conveyed this information to those acting on behalf of the appellants, and also to the sheriff in open court. He explained that the accused had been waiting outside the courtroom prior to the commencement of the trial and that the police officer had acted so as to avoid any risk of a confrontation between the complainer and the accused. A motion for desertion "of the indictment" was then made, on the basis that the evidence given by the complainer would be "tainted". The sheriff refused the motion in hoc statu.

When the complainer gave evidence, he identified all three accused as having chased and assaulted him. In cross-examination, he said that he had seen people hanging about outside the court earlier that day. The only one of the accused he had noticed was Anderson. He had not recognised him. He had not noticed McLennan or Wicksted. A police officer had said that the people were from the same case as him, and that once they were moved on she would bring him out of the witness room. He accepted that his dock identification of Anderson had been crucially affected by his being in the dock with the other two accused: he had not really recognised him from the night in question. He had however recognised McLennan and Wicksted in court: he had seen more of them on the night in question. Following this evidence the motions for desertion were renewed, and were again refused in hoc statu. It was accepted by the Crown that no reliance could be placed upon the complainer's dock identification of Anderson.

In due course the sheriff directed the jury as to how to assess the identification evidence in general:

"Ladies and Gentlemen, you've got to be very careful indeed with identification evidence. With the best will in the world, mistakes can and are made. As has been pointed out in this trial, you don't really have to be Einstein to work out who the accused are when you look round this courtroom. It is perfectly obvious they are the three chaps sitting beside the security guard. So if someone is of a mind to identify whoever is accused then all they need to do is point in that direction. It's fairly predictable."

More particularly, the jury was directed in emphatic terms to disregard the complainer's dock identification of Anderson:

"Iqbal's identification of John Anderson in court must form no part of your assessment. You will remember that we heard that he had seen Anderson outside the court and the accused had been pointed out to him. That was why he identified Anderson in court. So that identification of Anderson in court by Iqbal is quite useless and totally meaningless so you reject it. So that is just put to one side, it didn't happen as far as your consideration of Anderson's case goes."

The jury was also directed to consider the possibility that the complainer's identification of McLennan in court might have been affected:

"He [the complainer] seemed sure of this identification but remember that there was this evidence that I think I have referred to earlier that outwith the courtroom a police officer had innocently pointed out the three accused to Mr Iqbal before the trial began and I'll just read that passage [from the complainer's evidence] in relation to that...You have to ask whether the passage I have just referred to weakens Mr Iqbal's identification of Mr McLennan."

The jury was given similar directions in relation to the dock identification of Wicksted:

"The same comments as I made in McLennan's case regarding the possible weakness of Iqbal's identification of Wicksted by the pointing out of the accused by the police officer in the courthouse before the evidence began apply to that. It is a potential weakening of Iqbal's identification of Wicksted."

It is also relevant to observe that the complainer's dock identification of McLennan and Wicksted was not of critical importance. The complainer's blood was found on McLennan's trousers and right boot, it being a matter of agreement that the patterns of blood staining were characteristic of the wearer being close to expirated blood or impacts into wet blood. McLennan had also been identified to the police by Miss Skivington shortly after the incident as one of the men who had been involved, and she identified him again in court. Specifically, she identified him as one of the two men involved in the initial altercation, and as one of the three men who had pursued the complainer into the close where he was assaulted. The complainer and Miss Skivington had in fact also identified Mr McLennan at a video identification parade, but, extraordinarily, the police officers who had conducted the parade were unable in their evidence to identify McLennan as one of the persons who had been picked out, and the jury was therefore directed to disregard the evidence concerning McLennan's identification at that parade. Another witness, Mr Rose, stated that he had seen three men kicking a fourth man on the stair in the close, on the occasion in question.

The complainer's blood was also found on Wicksted's jeans, it being agreed that the patterns of blood staining were characteristic of the wearer having been close to impacts into wet blood, expirated blood, blood dripping into wet blood or blood dripping on to a rough surface. In addition to the complainer's dock identification of Wicksted, he was also identified in court by Miss Skivington as one of the three men who had pursued the complainer into the close where he was assaulted; and, as we have explained, Mr Rose gave evidence that all three men standing in the stair took part in the assault on the fourth man who was on the ground. Miss Skivington had also identified Wicksted at a video identification parade, but again the police officers who had conducted the parade were unable to identify him as having been picked out, and the jury was therefore directed to disregard the evidence regarding his identification at that parade. There was also evidence before the jury that the complainer had failed to identify Wicksted at a similar parade and had picked out two stand-ins. With his customary candour, Mr Scott, appearing on behalf of Wicksted, informed us that he had however been identified by the complainer from a book of photographs within a week of the incident. Since the Crown for some reason led no evidence of that identification at the trial, we do not take it into account.

In HM Advocate v Fleming 2005 SCCR 324 it was observed by Lord Justice‑Clerk Gill at paragraph 33 that a judge "should desert the trial if the fairness of it has been prejudiced or if there is at least a material risk that it may have been". In the circumstances of the present case, we can see no basis for concluding that the fairness of the trial had been prejudiced by what occurred outside the court, or that there was any material risk that it might have been so prejudiced. The reliability of dock identifications is inherently open to question, because of the possibility that the witness may be influenced by the knowledge that the person he has identified stands accused of the charge against him. The only possible consequence of what occurred outside the court was to bring forward in time the complainer's knowledge that the appellants stood accused of the assault upon him. It therefore bore upon the reliability of any dock identification. As such, it was capable of being tested in cross‑examination and addressed by the sheriff in his directions to the jury, and did not require that the diet be deserted.

Sufficiency of evidence against Anderson
It was contended on behalf of Anderson that the sheriff erred in rejecting a submission of no case to answer.

The principal source of evidence against Anderson was Miss Skivington. She identified him as having been one of the two men involved in the initial altercation, in the course of which Anderson punched the complainer, and as having subsequently been one of the three men who pursued the complainer, kicked open the door of the close where he had taken refuge, and went into the stair. A girl had also gone in. Some time later the three men and the girl came outside again, and Anderson said to Miss Skivington, "Ha ha, your paki boyfriend is dead". He told her that if she said anything to anybody she would get the same. She then went into the stair and found the complainer lying in a pool of blood. The second source of evidence was Mr Rose, who gave evidence that he heard a disturbance and went out on to the stair, where he saw three men "kicking hell" out of a man on the ground. The third source of evidence was the complainer, who gave evidence that he was chased by three men, who kicked open the main door of the close where he had taken refuge, ran up the stairs and then assaulted him. He had not seen all three men assaulting him, but he could tell from the nature of the assault that three people were involved: one was directing blows at his head, another at his stomach, and the third at his legs. Asked whether, at a video identification parade, he had picked out "the three people you had the problem with", he confirmed that he had done. Although poorly expressed, in its context the question was plainly referring to the three people who, according to the complainer's earlier evidence, had chased and assaulted him. The complainer had in fact picked out only two of the appellants at the identification parade, but Anderson was one of those two, as other evidence confirmed. Finally, another witness, Shelley Anderson, also gave evidence of Anderson and the complainer having an altercation in the street.

Taking these various sources of evidence together, there was plainly evidence from more than one source from which it could be inferred that Anderson was one of three men who had assaulted the complainer as alleged in the charge.

Adequacy of directions in relation to complainer's dock identification of McLennan
On behalf of McLennan, it was submitted that the sheriff ought to have directed the jury to exercise considerable caution before relying on the complainer's dock identification of him. We have already noted the general directions which the sheriff gave to the jury in relation to the limited value, and possible unreliability, of dock identifications, and the additional direction which he gave in relation to the possible implications of the comment made by the police officer to the complainer prior to the trial. Those directions in our opinion addressed the point fully and adequately, particularly when the strength of the other evidence against McLennan is borne in mind.

Adequacy of directions in relation to complainer's dock identification of Wicksted

A similar submission was made on behalf of Wicksted. As we have explained, the sheriff gave the jury a strong warning in relation to dock identifications in general. He reminded the jury that the complainer had failed to identify Wicksted at the video identification parade. He also drew the jury's attention to the possible implications of what had occurred outside the courtroom. Those directions were in our opinion both appropriate and adequate, particularly when regard is had to the strength of the other evidence against Wicksted.

Conclusion

In the circumstances, the appeals against conviction are refused.