William Beck V. Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Justice Clerk,Lord Marnoch,Lord Brodie |
| Judgment Date | 30 April 2013 |
| Neutral Citation | [2013] HCJAC 51 |
| Court | High Court of Justiciary |
| Published date | 10 May 2013 |
| Docket Number | XC559/12 |
| Date | 30 April 2013 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Justice Clerk Lord Brodie Lord Marnoch | [2013] HCJAC 51 XC559/12 OPINION OF THE COURT delivered by LORD CARLOWAY, the LORD JUSTICE CLERK in APPEAL AGAINST CONVICTION FOLLOWING A REFERENCE FROM THE SCOTTISH CRIMINAL CASES REVIEW COMMISSION by WILLIAM McKENNA BECK Appellant; against HER MAJESTY'S ADVOCATE Respondent: _____________ |
Appellant: A Kelly, solicitor advocate, Lawrie; John Pryde & Co
Respondent: AF Stewart QC, AD; the Crown Agent
30 April 2013
1 General
[1] On 30 March 1982, at the High Court in Edinburgh, the appellant was convicted by majority verdicts of the theft of a car from the Broomielaw in Glasgow on 12 December 1981 and a robbery at the Safeway Supermarket in Livingston later that day, involving striking two post office workers with hammers and relieving them of bags containing some £21,000 in cash. A social enquiry report had been obtained. This revealed that the appellant had only been at liberty since June 1981, following his release from a 15 month sentence for theft by housebreaking. He had other convictions for dishonesty and violence. Although a native of Castlemilk, the appellant had spent some of his youth living in Whitburn. The appellant was sentenced to six years' imprisonment. He appealed against his conviction (see infra), but that appeal was refused on 7 October 1982. No written opinion was issued.
[2] The report from the trial judge (Lord Dunpark), who is long since deceased, is in short compass. This is understandable, having regard to the very limited grounds of appeal initially advanced (infra). Having described the appeal as "unstateable", it records the following:
"A number of witnesses spoke to the two robbers running away in a certain direction and getting into a car. The evidence culminated in the positive identification by two witnesses, PC [M] and [KA], of the accused as the driver of this car. My narration of the relevant evidence is contained on pages 14A to 22C [of the charge]".
It is important to observe, in limine, that there is, and can be, no analysis of the present grounds of appeal, which are different from those originally proffered, by the trial judge. In any case, the court will regard the trial judge's analysis as an important consideration in determining whether a miscarriage of justice has occurred. It is of particular importance in a case such as this. By reason of the passage of time there is, and can be, no official record of the evidence adduced or speeches made at the appellant's trial. The evidence was originally recorded in shorthand, but the notes have been destroyed after being retained for ten years. The expedient of resorting to a transcription, where necessary to supplement the trial judge's report, in order to determine whether a miscarriage of justice has occurred is not available. Although there were some, relatively cursory, notes said to have been taken by the appellant's solicitor at the trial, these were not referred to at the appeal hearing and it was not suggested that the court ought to attempt to recreate the testimony given at the trial from these notes.
[3] The judge's charge, which was extended at the time of the original appeal, gives a reasonably clear summary of the testimony given in the context of the critical issue of identification. However, it is indeed a summary and it is impossible for the court to gauge the strengths and weaknesses of the testimony in anything like the manner open to the jury who heard it over what was a two day trial.
2 The Testimony at Trial
[4] The trial judge commenced his summary of the identification evidence by referring to the accounts given by the two postal workers who, he said, had not "got a decent look" at the robbers. One of the postal officers, namely WH, had been unable to identify anyone positively at an identification parade. However, when he was asked at the parade the standard question whether there was anyone who resembled the robbers, he had picked out the appellant. He had said that he had seen the robber's face, his eyes and eyebrows, nose and mouth and part of his chin. At the trial, he said that he thought that the robber was the appellant. The trial judge had asked him why he had come to that conclusion, and he had responded "just a feeling I had". The trial judge commented to the jury that this "is really not very satisfactory evidence to go on".
[5] The second post office worker had said that he had not seen the faces of either of the robbers. He made no identification. However, he did say that one of the robbers had been wearing a dark anorak-type jacket, which he identified as similar to a dark blue anorak recovered from the appellant. The trial judge then commented that there are "any number of these anoraks about".
[6] A young female, namely MT, had seen the robbers running away from Safeway past a bus stop and down a path towards Raeburn Rigg, but there is no mention in the charge of her having identified anyone. Also observing the robbers running away in this direction were a couple, TC and AC. Mrs C, who was a school teacher, picked out the appellant at an identification parade as looking similar to one of the men. She had been shown a photograph of the appellant prior to the identification parade but it is not clear if this was one of several photographs or indeed whether she had picked out the appellant from a photograph. At the parade, she had said that she was not sure if either of the men were present. She had then picked out the appellant, on a resemblance basis, saying that the reason was: "It is his hair". There is no record of Mr C identifying anyone. The trial judge made another comment at this point that the identifications could "hardly be said to be positive, but that's not all". He noted that Mr C had seen one man getting into what was to be the getaway car, parked in Raeburn Rigg. A peculiarity of the trial judge's phraseology is that he said that Mr C had seen the man getting into the driver's seat "after the driver was in the car"; a remark which does not now make sense.
The next witness was SC, who pursued the robbers down the path and then chased the getaway blue Ford Granada in his own car. He identified a stand-in (described by the appellant's trial counsel as the "wrong man") at the parade. The trial judge again made another general comment; this time about the jury not yet having "satisfactory evidence" of identification. He then proceeded to deal with where he thought the jury might find "that" evidence.
[7] PC NM had been off duty when he observed the two robbers running down the path away from the supermarket and into the car. Once the robbers had entered the car "the driver let his hood down". He was 18 to 20 feet away and had a look at the people in the car. He identified the appellant as the driver, having then seen his face. The car drove away past him and he noted the registration number. This was then a positive identification of the appellant.
[8] Another witness, KA, had been with SC and the two had initially followed the men together, before splitting up to cover different avenues of, presumably, escape. Mr A had gone to a roundabout at the other end of the Rigg and had seen the Granada coming towards him. He said that he had got "a good look at the driver, who had nothing on his head". He too positively identified the appellant as the driver. Having thus narrated the essentials of the evidence of PC M and Mr A, the judge made a further comment to the jury that:
"... there you have two positive identifications for your careful consideration as to whether they are accurate that the accused was one of the two men who had started assaulting the postman and finished up driving away in this car".
[9] The degree to which the positive identifications were challenged head-on at the trial is unclear. Certainly, according to the terms of the charge, the appellant's counsel referred to discrepancies between the accounts given by some of the witnesses about whether the robbers had been wearing balaclavas or just hoods. He also made some play of differing accounts, from PC M, Mr A and others, on the speed of the getaway car. However, it appears that the extent of any challenge to the positive identifications was focused on those types of discrepancy rather than any contention that the witnesses were mistaken on the basis that they had not seen the robbers for sufficient time to enable them reliably to identify the appellant in the dock. Presumably, therefore, there was no basis, or at least no safe basis, upon which to launch such an attack. No doubt had such an attack been made on the dock identifications, this would have opened up a line for the Crown to adduce whatever evidence they had of prior identifications, at parades or otherwise, by these two apparently independent witnesses.
[10] Set against the evidence of identification was testimony by certain witnesses which supported, to one degree or another, the appellant's alibi that, at the material time, he had been in Glasgow with his girlfriend LM. The robbery had occurred at about 3.45pm. The getaway car had been dumped at Kirkliston. It does not seem to have been disputed that the appellant was back in Glasgow by at least 6 pm, having taken a bus from the city centre towards his home in Castlemilk. What is left uncertain is what evidence there was about his presence in Glasgow earlier in the day.
[11] The judge directed the jury that the only person who had been with the appellant for the period 1 to 6 pm had been LM and that there was no evidence that anyone, apart from LM, had seen the appellant during this period. That much is clear. It is consistent with the judge's account of a witness, namely MW, saying that she had been working until about 6 pm and had boarded a bus at 6.05 at Eglinton Toll, which is a stop en route to Castlemilk from where the appellant said he boarded the bus (St Enoch...
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