APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Emslie Lord Kinclaven Lord Woolman	[2011] HCJAC 91 XJ504/11 OPINION OF THE COURT delivered by LORD EMSLIE in APPEAL BY STATED CASE by JAMES WILSON Appellant; against PROCURATOR FISCAL, Dumbarton Respondent: _____________

Complainer: Bryce, Solicitor Advocate; Capital Defence

Respondent: A. Carmichael, A.D.; Crown Agent

30 August 2011

[1] In this Stated Case appeal, the appellant James Wilson challenges the admissibility of dock identifications by both young complainers at his trial in December 2010 on a charge of lewd and libidinous conduct in a public park. He does so on the ground that the dock identifications were unfairly tainted by what happened on 11 March 2009 at an intended identification parade at Partick police office. This was the subject of a determined objection which the sheriff repelled at the trial after hearing evidence. and the appellant now renews the objection in this appeal.

[2] Following the trial within a trial which was held in the sheriff court, the sheriff narrates what took place on 11 March 2009 at findings of fact 4-8 inclusive within his stated case. These findings are in the following terms:

"4. Following the appellant's appearance at court on release on bail, he was required to attend at Partick Police Office in Glasgow for an identification parade on 11 March 2009. He sat in the public reception area next to the glass entrance door. Both girls also attended by arrangement at Partick Police Office, Glasgow for the purpose of the identification parade. Mhairi Sly was accompanied by her mother, Sharon Sly and Megan Rodgers by her father, James Rodgers.

5. The two girls, along with James Rodgers, entered the public entrance of Partick Police Office. Mrs Sly arrived shortly afterwards. The appellant was already seated in the reception area. There was no one else sitting in the reception area.

6. Upon entering the police station, the two girls recognised the appellant seated there as the man they had seen in the park. Megan Rodgers held her father's hand and Mhairi Sly said "that's him". Megan said to Mhairi Sly "is that him?" and Mhairi Sly said to Megan Rodgers "yes". Megan Rodgers told her father that she was sure that the appellant was the man she had seen in the park.

7. Thereafter Mrs Sly came into the Police Station and her daughter told her that the man seated there was the man she had seen in the park.

8. A Police Officer then came into the reception area and stated in presence of and hearing of Mhairi Sly, Megan Rodgers and their parents, "don't tell me that's the accused sitting next to the girls there". Thereafter the parents of the girls were taken into a side room and told there had been a mistake in that the man seated in the reception area was the appellant and, as a consequence, the identification parade was cancelled. The two girls were afterwards brought into the room and when they entered the girls said that they thought that the accused was the man involved in the incident. All the witnesses including the two complainers were told that they had been sitting beside the person they were there to identify."

[3] As the sheriff goes on to explain in his note, he did not accept that this episode rendered the dock identifications nearly two years later inadmissible. On the contrary, the girls had had a relatively close range view of the appellant in the park over a period of time; their detailed description at that stage, not just of the appellant but also of his dog, had enabled the police to trace him within a matter of days; and on 11 March 2009, both girls had recognised the appellant on entering the police station and had said so before the police error was disclosed. In the result, the sheriff repelled the defence objection to the admissibility of the dock identifications, and the question before us is whether he erred in doing so.

[4] For the appellant today, it is maintained that where the intended identification parade was so badly messed up by the police, the appellant could not have had a fair trial where identification was a critical issue. We were referred to the decision of the Privy Council in the case of Holland v HM Advocate 2005 SC(PC) 3, and also to a more recent case in this court: Anderson &Others v HM Advocate 2009 HCJAC 91. These cases were said to support the submission that in some circumstances dock identification might exceptionally be tainted to the degree that it should be held inadmissible. The submission here was that this case fell on the wrong side of the line from the Crown's point of view, especially where some exchange had obviously taken place between the two girls before the second one confirmed her view that this was the man from the park.

[5] Having listened carefully to the submissions today, we are not persuaded that there is any substance in the appellant's complaint. As the Privy Council confirmed in the case of Holland, dock identification remains a perfectly legitimate procedure even where, at some stage in the past, a witness has failed to pick out the accused at a formal identification parade. Prima facie, as that case and others confirm, the evaluation of identification evidence is first and foremost a matter for the trial court. Here, of course, there was no formal identification parade and no relevant failure. On the contrary, as the sheriff records, both girls recognised the appellant as they entered the police station and said so to their parents before the police error was revealed and the intended parade was cancelled. In the sheriff's view, as recorded at page 12 of the Case, this spontaneous reaction on the part of the girls appeared to confirm their genuine recollection of the man they had seen with his dog in the park, and whose appearance and clothing they had been able to describe in some detail to the police at the time.

[6] In the end of the day, as it seems to us, the supposed taint from the events of 11 March 2009 was fully before the sheriff at the trial. And, for the reasons which he sets out in the stated case, we are satisfied that he was well entitled to hold that the girls' dock identifications were not rendered legally inadmissible by what had transpired nearly two years earlier. Once that decision had been taken and the dock identifications held admissible, it is conceded that it was a matter for the sheriff to judge whether, in all the circumstances, these dock identifications should be accepted as credible and reliable so as to warrant a conviction.

[7] For all these reasons, we are not satisfied that the supposed taint from 2009 was sufficient to render the dock identifications inadmissible, and we therefore propose to refuse this appeal. So far as the questions stated at page 13 of the print are concerned, we shall answer the first question in the affirmative and the second in the negative.

Aud