APPEAL COURT, HIGH COURT OF JUSTICIARY
Lady Smith Lord Drummond Young Lord Boyd of Duncansby	[2013] HCJAC 104 XC83/13 OPINION OF THE COURT delivered by LADY SMITH in APPEAL AGAINST CONVICTION by THOMAS CAMPBELL Appellant; against HER MAJESTY'S ADVOCATE Respondent: _____________

Appellant: Carroll; Drummond Miller, Edinburgh

Respondent: Wade; Crown Agent

14 August 2013

[1] On 4 February 2013, the appellant was convicted by the jury of a charge of assaulting Tahir Hamid at Annette Street, Glasgow on 25 November 2011, with a knife, to his severe injury and permanent disfigurement. The jury returned a verdict of not proven in relation to a second charge in which it was alleged that he had assaulted another man on the same date at about the same time in the same place.

[2] At a first diet on 5 October 2012, Sheriff Swanson heard argument in relation to a devolution issue minute and a minute of objection to evidence. Both minutes were to the effect that she should rule that the Crown would not be permitted, at trial, to lead or rely on dock identification evidence. She refused both minutes essentially on the basis that it could not be said that the trial would inevitably be unfair were dock identification evidence to be relied on. Accordingly, on the authority of Holland v HM Advocate 2005 UKPC D 1 she decided that she ought not to accede to them. Sheriff Swanson's report is set out verbatim at pages 5 to 7 of the trial sheriff's report prepared for the purposes of this appeal and we refer to it for its terms.

[3] Turning to the circumstances at trial, it was evident that the charges concerned were two serious and random attacks, in the street, on strangers. They occurred on a November evening, at about 5pm or 5.15pm. The evidence was that two young men were involved but only one of them carried out the attack. It was not disputed that the attacks occurred. The issue was as to the identity of the perpetrator, it being the Crown case that both assaults were so similar as to have been committed by the same person.

[4] The complainer Mr Hamid gave evidence that he saw his attacker's face. He was able to identify him from an emulator board that he was shown shortly after the incident. The person he identified from that board was the appellant. Mr Hamid was also asked to attend a VIPER identification parade which he did, on 5 December 2011. It was, by its nature, a digital parade. He did not pick out the appellant. He said, in evidence, that he found it very confusing. Mr Hamid was not asked to identify the appellant in court but evidence was taken from Detective Constable Cuthbert that the person that he had picked out from the emulator board was the appellant.

[5] A passer-by, Mr Duncan Wallace, also gave evidence. He was an artist who had studied life drawing. He therefore, as he put it, registered facial shapes. He explained how life drawing helped him to do so in respect that he would look at a model for 10 seconds and then draw it. He saw a man attack Mr Hamid. His description of the nature of the attack accorded with Mr Hamid's description of what happened to him. He had what he referred to as "a steady look" at the attacker for a few seconds. He was shown what he described as a "photo fit" by the police, at some point prior to trial. He said that he didn't see the faces of the attackers and didn't think that he could identify them again. On 15 November 2012 he had also attended a VIPER parade and he also had failed to pick out the appellant. However he identified the appellant when asked if he was able to do so in court. He explained, in cross-examination, "I've given it more thought and replayed it in my mind". He explained in re-examination that he had thought that he could identify the attacker from the photo fit but didn't do so as he was not absolutely certain. He said he was sure about his evidence in court though.

[6] The prosecutor's questions inviting Mr Wallace to identify the perpetrator on oath, in court, were not objected to. Detective Constable Cuthbert said that the image taken and used for the VIPER parade would be more current but it is not entirely clear from the sheriff's report whether that meant current as at December 2011 or current as at November 2012.

[7] The trial sheriff directed the jury regarding identification evidence in a lengthy passage of his charge beginning at page 18 and ending at page 26. In particular, at pages 23 to 24, the sheriff reminded the jury, in some detail, of all the points made by the defence in support of the submission to them that they should not regard Mr Wallace's dock identification as reliable. That was the defence position. He specified with some care the various ways in which, in this particular case, the dock identification might be thought to have lacked the necessary safe guards against that identification being a mistaken one. The sheriff then explained to the jury that, so far as charge 2 was concerned, the Crown were relying on the principle that where two crimes are so similar that they must have been committed by the same person and it is proved that one of them was committed by the accused, it is then open to a jury to infer that the other crime was also committed by him, even if there is no direct evidence that he was involved: Howden v H M Advocate 1994 SCCR 19.

[8] There are two grounds of appeal. The first ground of appeal is that the refusal by Sheriff Swanson of the devolution minute and minute of objection at the first diet was wrong in law and resulted in the denial of the appellants right to a fair trial. In the notice of appeal and case and argument the following points are made in support of that ground:

·      that Duncan Wallace had told the police that he had not seen the attacker's face;

·      that, given that, after the first hearing, Mr Wallace failed to pick out anyone at the VIPER parade, the sheriff at the first diet might, had that parade taken place prior thereto, have decided to rule that dock identification would not be admissible at the trial; it was likely that that would have been her conclusion, given the discussion in the case of Holland v H M Advocate at paragraph 57 to 63;

·      that Mr Wallace was called upon to make a dock identification despite what he had said to the police. That does not however emerge as a separate argument nor, indeed, could it, given that the first ground of appeal is restricted to attacking Sheriff Swanson's decision to refuse these minutes and does not found on what occurred at trial.

The second ground of appeal, as stated in the note of appeal and the case and argument, is that esto Sheriff Swanson did not err in law in refusing to exclude dock identification evidence in advance of trial, Sheriff Normand (the trial sheriff) misdirected the jury in respect that he failed to provide adequate directions that they had a role to play in determining issues of fairness and as to how to approach the weight of evidence or sufficiency of evidence if they considered that the procedures adopted to secure identification evidence in court were unfair. It is said that the jury ought to have been told that they had a role to play when assessing fairness in relation to the dock identification evidence, that the sheriff failed to do so, that the jury's acquittal on the second charge showed that they had reservations about the evidence and those reservations could not have been about whether or not the complainers were in fact assaulted. It is also said that if the jury had been properly directed on fairness, then it is likely that the balance would have tipped on favour of the appellant so they would have rejected all the identification evidence as unfairly obtained and unreliable and accordingly would have acquitted the appellant.

[9] Thus put, the second ground of appeal, would seem, we observe, to cover not only the evidence of Duncan Wallace but also Tahir Hamid's emulator board identification. We note, however, that in oral submissions, Mr Carroll's criticisms were confined to Mr Wallace's dock identification. Otherwise, in the course of oral submission, Mr Carroll, while supporting the first ground of appeal, accepted that it was not a particularly strong leg of the appeal. Rather, he focused very much on the second ground. He submitted that the trial sheriff had not said that the jury had a role to play in determining whether or not the events leading to the dock identification were fair but they did have a role to play in that and they required to be directed to that effect.

[10] He accepted that what the trial sheriff said at pages 22 to 24 of his charge did contain an allusion to the concept of fairness but he should, according to Mr Carroll, nonetheless have said more. It was necessary to recognise as per Thompson v Crowe 1999 SCCR 1003 at page 1046 that, whilst admissibility of evidence is a legal ruling, it is a matter for the jury to decide what weight should be attached to that evidence and in doing so, to consider matters of fairness. The unfairness in this case was having the accused sitting in court and the witness being asked whether he could identify the perpetrator in circumstances where the accused was the only person present who was not a court official or a lawyer involved in the case.

[11] When Holland and Thompson were brought together, in Mr Carroll's submission, the trial sheriff should have been telling the jury that they were not only entitled to look at reliability but that it was for them to determine what weight to attach to the evidence and if they thought that it was not fair it was for them to attach such weight as they wished.

[12] He accepted that the general law is that dock identification is admissible evidence but the jury had an inherent function of looking at the fairness of that evidence for a different purpose. Fairness could, he said, affect the way in which the jury looked at the evidence.

[13] He accepted, however, that reliability and fairness were related. What ultimately he did not seem to accept was that fairness was adequately subsumed in the principle that, to be accepted, evidence requires to be reliable. He said that a jury would be entitled to say to themselves that evidence which had passed the threshold for fairness was credible and reliable but they were not going to attach much weight to it because of the way in which it was obtained; fairness might affect their considerations.

[14] In response, the advocate depute pointed to page 7 of the sheriff's report where he advised that he did not, in terms, direct the jury on the issue of fairness of the dock identification but that was because the appellant's solicitor, Mr Harper, did not raise fairness of the dock identification as an issue when addressing the jury. Put shortly, the fairness of the identification was simply not an issue in the case. The focus at the trial was on the quality of the identification evidence not its fairness and quality was more than adequately addressed by the trial sheriff in his charge. Further, fairness and reliability were inextricably linked as concepts; once evidence is fair enough to be admitted, it is for a jury to ask themselves whether it is reliable.

[15] Further, even if there was a misdirection in this case, which the Crown did not accept had occurred, there was no miscarriage of justice given the wealth of the directions that were given on identification in this case. So far as the first ground of appeal was concerned, the advocate depute submitted that, at the point at which Sheriff Swanson was determining the minutes, she was plainly right to decide as she did, given in particular the authority of Holland.

[16] Turning to our decision in the case, we deal firstly with the first ground of appeal. We do not consider that Sheriff Swanson fell into error. She cannot be criticised for refusing these minutes. At the stage at which she was considering the issue, Mr Hamid had identified the appellant on the emulator board that was shown to him shortly after the incident. Mr Wallace had said that he did not see the face of the attacker but he had not at that stage attended a VIPER parade nor, indeed, had he been given the opportunity to say, on oath, in court whether or not he could identify the perpetrator. The circumstances were, accordingly, that there was one witness who had made a positive identification shortly after the incident. There was also one witness who had not done so at that stage, but there remained opportunities for that witness to be asked whether or not he could identify the perpetrator. The picture in relation to that witness so far as his ability to identify the perpetrator was concerned was not complete.

[17] As Sheriff Swanson rightly noted, the case of Holland did not hold that dock identification will necessarily give rise to an unfair trial. Indeed at paragraph 57, Lord Rodger envisages corroboration of the identification of an accused person being afforded by a dock identification by another witness who failed to identify at the identification parade which is, of course, what happened here.

[18] We are invited to speculate about what might have been the outcome of the first diet if the VIPER parade attended by the witness Wallace had already taken place. That is all we are asked to speculate. We are not, for instance, asked to add to that speculation that Mr Wallace had, in the circumstances, and for the reasons explained by him, identified the appellant in court. But such an approach to the question of whether or not a judge erred in law in determining the issue before her is wholly unsound. The task for the judge was to determine matters according to the circumstances that obtained at the time of her determination. That is what Sheriff Swanson did, and she cannot, to our minds, be faulted.

[19] If, rather, the intention was to argue a wide ranging article 6 argument to the effect that the trial was necessarily unfair, due to Mr Wallace's prior failure to identify the appellant at the VIPER parade, that will not do. Similarly if the intention was to embark on a wide ranging article 6 argument that the trial was necessarily unfair due to a combination of his failure to identify the appellant at VIPER parade and the circumstances of the dock identification, that will not do either. It is clear from the ground of appeal that it was directed solely at Sheriff Swanson's decision and it cannot be used to enable an argument now to be advanced to that wider effect. In fairness to Mr Carroll, we do not, in the end of the day, understand him to have sought to do so albeit that that could reasonably have been apprehended from reading the case and argument.

[20] Turning to the second ground of appeal, it, ultimately, came to be that the absence of any direction to the jury such as to make them aware that they had the power and function of determining issues of fairness, where it was raised as an issue, (accepting that it would not be for them to exclude the evidence as inadmissible and then to decide what weight they should attach to it), amounted to a miscarriage of justice. Equally, it may be that the point, more shortly put, was that the trial judge should have said that the jury were able not only to consider reliability but also to look at fairness when weighing the evidence, whatever the precise analysis of the ground in the end of the day. However, the prosecutor's questions inviting Mr Wallace to identify the perpetrator in court were not objected to and the fairness of the dock identification which then occurred was not attacked. Fairness was never raised as an issue in the case, as explained by Sheriff Normand at page 7 of his report. Plainly, the focus was on the reliability of the identification evidence. That was the argument advanced before the jury on behalf of the appellant and they were apparently urged by the appellant's solicitor to find that the dock identification evidence was not reliable. Indeed, it seems they were also urged to find that Mr Hamid's identification was not reliable either.

[21] We observe also that the directions given in this case by the trial sheriff on identification were directions that were given at length and in some detail, warning the jury about the care they required to exercise, for all the reasons that were advanced by the defence. We also consider that those directions were, in their particular focus on the reliability of the evidence also about the fairness of accepting that evidence. We agree with the advocate depute that fairness is an inherent feature of reliability. All that the trial sheriff pointed to about the particular features of the evidence in this case demonstrated reasons why the jury might not consider it fair to rely on the dock identification evidence. We cannot accept that justice would have been any better served by the giving of a direction in the terms suggested by Mr Carroll. Indeed, it would, in all the circumstances, have been confusing to do so. In these circumstances this appeal is refused.

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