George Brodie V. Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Justice General,Lord Hodge,Lord McEwan |
| Judgment Date | 16 November 2012 |
| Neutral Citation | [2012] HCJAC 147 |
| Docket Number | XC85/11 |
| Date | 16 November 2012 |
| Court | High Court of Justiciary |
| Published date | 14 January 2013 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Justice Clerk Lord Hodge Lord McEwan | [2012] HCJAC 147 Appeal No: XC85/11 OPINION OF THE LORD JUSTICE CLERK in APPEAL AGAINST CONVICTION by GEORGE BRODIE Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Appellant: Shead; Drummond Miller LLP
Crown: Ms Wade, AD; Crown Agent
16 November 2012
The conviction
[1] On 20 December 2010 at Edinburgh High Court the appellant was convicted of the following charge:
"Between 8 September 2009 and 12 September 2009, both dates inclusive, at Marine Parade Walk; Sainsburys car park; Baldovie Road; The Royal Bank of Scotland and Ladbrokes, Albert Street; Dundee International Sports Centre car park, and City Quay, all Dundee; the A923 Coupar Angus to Dundee Road at a lay-by near Tullybaccart Farm and Muirhead; and elsewhere you ... were concerned in the supplying of a controlled drug namely Diamorphine, as specified in Part I of Schedule 2 to the aftermentioned Act to another or others in contravention of Section 4(1) of said Act; CONTRARY to the Misuse of Drugs Act 1971 Section 4(3)(b)"
[2] The appellant was tried with five co-accused. One of them, Stephen Donald, was convicted in the same terms as the appellant. Another, Andrew Sellars, pled guilty in similar terms, but with a restricted latitude.
The trial
[3] The case for the Crown was based on police surveillance and mobile phone records. On 9 September 2009 there was a seemingly pre-arranged meeting between Sellars and Donald at Sainsburys' car park, Dundee. On 11 September, Sellars and his partner withdrew cash from a bank. Sellars then went to the car park of the Dundee International Sports Centre (DISC). There he met the appellant and Donald, who were waiting in Donald's car. Sellars stood at the side of the car and spoke to them. Then he got into the back of the car. There was a further discussion for a few minutes. The appellant and Donald appeared to be examining something on Sellars' lap. Donald then drove off with the appellant and Sellars.
[4] Shortly after the meeting Sellars made a phone call in Ladbrokes in which he was heard by DC Sievewright to say:
"I gave the boy six grand and he was happy. I'm going to see him at seven or half seven but the boy doesn't want anyone else knowing about it so I'll be going myself."
[5] On the following day there was a pre-arranged meeting between the appellant, Donald and Sellars at a lay-by on the A923 Dundee to Coupar Angus Road. Before it Donald made a phone call while he was parked a short distance away. He and the appellant drove to the lay-by separately. They stood outside their cars there, conversing and watching the passing traffic. Sellars then drove up. Police officers saw Sellars at the rear of his car. It was close to the appellant's car. The boot of Sellars' car was partly open. Donald waved to Sellars and drove off towards Coupar Angus. The appellant and Sellars then drove off towards Dundee.
[6] Shortly thereafter the appellant and Sellars were stopped by the police. In the boot of Sellars' car there was heroin worth about £6,000 - £7,000. In the driver's door pocket of both cars there were latex gloves. At the appellant's home there was a foil wrap on a mantelpiece and £220 hidden inside a book in a wardrobe.
[7] There were records of numerous telephone calls and text messages that passed between Sellars, Donald and the appellant. It was clear from these records, and from the text messages in particular, that Donald and the appellant were to meet Sellars on 11 September to receive money from him and that a delivery to Sellars, arranged by the appellant, that was to be made that evening was being postponed to the afternoon of 12 September.
[8] DC Pamela Wilson observed the meeting at the DISC car park. She was not required to take part in an identification parade involving the appellant. At the trial she was asked if she could identify any of the men whom she saw in the car park. The question was not objected to. She identified the appellant. In cross-examination of DC Wilson counsel for the defence raised with her in general terms the reliability of her identification. Counsel raised the same general point in her speech; but did not make any specific point about the fact that it was a dock identification (Report, p 7).
[9] The appellant did not give evidence.
The judge's charge
[10] The trial judge gave specific directions on eye-witness identifications. He gave the standard warnings as to the fallibility of such identifications and the need to assess them with particular care. He suggested to the jury, in accordance with good practice, how they should approach that evidence (Charge, pp 18-20). He did not give specific directions regarding dock identifications.
[11] When summarising the Crown case against the appellant, the trial judge referred to "the overheard phone call in Ladbrokes;" but he did not direct the jury as to the evidential significance of that phone call so far as it related to the appellant.
The grounds of appeal
[12] Leave to appeal has been granted only on grounds 2 and 3. Ground 2(a), supported by a devolution minute, is to the effect that the act of the Lord Advocate in leading the evidence of the dock identification by DC Wilson and in seeking a conviction in reliance on it was an infringement of the appellant's rights under article 6. Ground 2(b) is to the effect that the trial judge misdirected the jury by failing to direct them on the specific dangers of dock identification. Ground 3 is that the trial judge misdirected the jury in failing to direct them that what Sellars said in the Ladbrokes phone call about paying someone six grand was not evidence against the appellant.
[13] In the event, counsel for the appellant disclaimed any argument that a dock identification, or the prosecutor's reliance on it, infringed article 6 per se. His position, as I understood it, was that because there had been a dock identification, it was necessary for the trial judge to give specific directions on the point. If I am right in my understanding of the argument, it follows that on that issue no question arises under section 57 of the Scotland Act 1998.
Conclusions
Dock identification of the appellant
Submissions for the appellant
[14] Counsel for the appellant submitted that the trial judge should have given a direction on dock identification of the kind contemplated in Holland v HM Adv (2005 SCCR 417). In Holland the witness who identified the accused in court had failed to identify him at an identification parade. Counsel for the appellant submitted that the present case was more extreme because, as in Tido v The Queen ([2011] UKPC 16), there had been no identification parade at all. The trial judge should have given a direction as to the dangers of dock identification in such circumstances. Without that, the standard directions on eye-witness identification were inadequate (Pipersburgh v The Queen [2008] UKPC 11, paras [9]-[18]). The trial judge should also have directed the jury, in the terms set out in Tido v The Queen (supra, at para 26), to consider what potential advantage the appellant might have lost through the lack of an identification parade.
Scottish practice
[15] The Judicial Committee of the Privy Council has recognised that the legal principles affecting dock identifications differ in Scotland from those that apply in England and Wales (Tido v The Queen, supra, at para 22). It is a longstanding rule of Scots law that an eye-witness who describes the perpetrator of a crime should be asked if he sees that person in the court. If he does, he should be asked to point him out (Murphy v HM Adv 2007 SCCR 532, para [90]). Dock identification evidence is not per se inadmissible; nor is it an infringement of the accused's rights under article 6 (Holland v HM Adv 2005 SCCR (PC) 417, paras 5, 41, and 57) except perhaps in an extreme case (ibid, para 57). A dock identification is not made inadmissible by the fact that the witness has not made a previous identification (Pop v The Queen [2003] UKPC 40). Dock identification evidence is held to be admissible partly because of safeguards such as the judge's directions (para 58) and the requirement of corroboration (para 57; cf Scott v The Queen [1989] AC 1242, Lord Griffiths at p 1261).
Holland v HM Adv
[16] Counsel for the appellant submitted that since this ground of appeal was founded on article 6, the question was whether the appellant was deprived of a fair trial in all the circumstances of the case (Holland v HM Adv, supra, at paras 5, 39 and 41).
[17] I agree with the submission of the advocate depute that in Holland v HM Adv (supra) it was not dock identification alone that resulted in the finding that the trial had been unfair. It was a combination of factors. The witness who made the identification had failed to identify the appellant at an identification parade. The Crown had failed to disclose certain information that would have been helpful to the defence in undermining the reliability of the dock identification (ibid, para 85). These special features were not present in this case. The question was whether the man whom DC Wilson identified in the court was the man whom she saw in the car park.
The trial judge's directions
[18] The trial judge's general direction as to the dangers inherent in an eye-witness identification was entirely appropriate. The terms in which he gave it cannot be faulted. But although counsel for the defence did not expressly raise the issue, I think that the trial judge should have given a specific direction on the question of dock identification. In my opinion, in the light of Holland v HM Adv (supra, para 58) and the references to it by the Judicial Committee in Pipersburgh v The Queen (2006 PC Appeal No 96, para 15), an express direction on the point is desirable wherever there is a dock identification without there having been an identification parade. I...
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Indexes
.... . . . . . . . . . . . . . . . . . . . . . . . . . . . . 125Boyle vHM Advocate 1976JC 32. . . . . . . . . . . . . 21Brodie vHM Advocate [2012]HCJAC 147 . . . . . 10Bruce vHM Advocate 1936JC 93 . . . . . . . . . . . . . 9Bushell v Repatriation Commission (1992) 175CLR 408 . . . . . . . . . ......