Nicholas Russell Henry V. Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Menzies,Lord Clarke,Lord Brodie |
| Neutral Citation | [2012] HCJAC 128 |
| Year | 2012 |
| Docket Number | XC724/11 |
| Published date | 17 October 2012 |
| Court | High Court of Justiciary |
| Date | 17 October 2012 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Clarke Lord Menzies Lord Brodie | [2012] HCJAC 128 Appeal No: XC724/11 OPINION OF THE COURT delivered by LORD BRODIE in APPEAL AGAINST CONVICTION by NICHOLAS RUSSELL HENRY Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Appellant: Jackson QC, Mitchell; Drummond Miller LLP
Respondent: Harper AD; Crown Agent
17 October 2012
Introduction
[1] On 28 October 2011 the appellant was convicted, after trial, at Glasgow High Court, as libelled, of the following charge:
"On 20 January 2011 at Glenhove Stores, 92 Glenhove Road, Cumbernauld, you NICHOLAS RUSSELL HENRY, while acting with another whose identity is to the Prosecutor meantime unknown, did assault Allan Scott, c/o Strathclyde Police, Cumbernauld, and, with your faces masked, brandish a machete and wooden pole or similar instruments at him, pursue him, and repeatedly strike him on the head and body with said machete and pole, all to his severe injury, permanent disfigurement, permanent impairment and to the danger of his life and you did attempt to murder him."
[2] The appellant was sentenced to 12 years' imprisonment, back-dated to 7 February 2011.
[3] The appellant has appealed against conviction. No issue is taken with the sentence imposed.
Grounds of appeal
[4] The appellant presents two grounds of appeal. Both relate to the evidence relied on by the Crown to identify the appellant as one of the two perpetrators of the assault on the complainer. These grounds are as follows:
"1. The Crown case depended on the identification of Mr Hendry as the perpetrator of the crime and that the identification was made purely on the evidence of police officers who viewed a CCTV footage of the crime being committed and identified Mr Hendry from that footage (Charge to Jury page 30 line 7 to 15).
That evidence should not have been admitted. An objection to its admissibility was dealt with at a preliminary evidential hearing and the motion to rule that evidence as admissible was wrongly refused.
That evidence should have been ruled inadmissible for a number of reasons including the following:
a. The quality of the CCTV footage and the lack of detail shown was such that no proper identification could be made from it.
b. There was clear defence evidence that the CCTV footage was of such a quality as to make proper identification impossible and unsafe. That evidence came from a number of witnesses including a former police officer who was the leading Scottish expert on this subject while in the police.
c. The circumstances of the identification were that the police officers concerned had gone to detain Mr Hendry and had information that he was the perpetrator of the crime. When they saw him and thereafter identified him as the person on the CCTV footage they did so having already been influenced that he was the perpetrator.
d. Mr Hendry was not known to these police officers prior to this.
e. No attempt was made to have people who knew Mr Hendry examine the CCTV footage with a view to stating whether or not they could identify him from it. This could easily have been done.
f. Even if the evidence were to come from police officers there should have been an identification parade at which police officers, other than those who had gone to detain Mr Hendry, would have viewed the CCTV footage and thereafter would have been asked if they could identify the person in the footage at an identification parade involving the Appellant.
2. Further and in any event no reasonable jury could have convicted in that no reasonable jury could have relied on the identification of Mr Hendry by the police officers by reference to the CCTV footage. The reasons for that are by reference to the reasons in point one above".
Pre-trial procedure
[5] Section 79(1) of the Criminal Procedure (Scotland) Act 1995 provides:
"Except by leave of the court on cause shown, no preliminary plea or preliminary issue shall be made, raised or submitted in any proceedings on indictment by any party unless his intention to do so has been stated in a notice under section ...72 (3)...of this Act."
[6] An objection by a party to the admissibility of any evidence is a preliminary issue: 1995 Act section 79(2)(b)(iv). In terms of section 72(6) of the Act, at a preliminary hearing the court shall, having heard how the accused pleads to the indictment (and in the event that he pleads not guilty or that any guilty plea is not accepted by the Crown), unless it considers it inappropriate to do so, dispose of any preliminary issues within the meaning of section 79(2)(b) of which a party has given notice.
[7] The appellant was indicted to a preliminary hearing on 3 June 2011. On that date the court allowed to be received, although late, a minute on behalf of the appellant, which had been lodged in terms of section 72(3) of the 1995 Act, objecting to the admissibility of the evidence which it was anticipated that the Crown would seek to lead from three police officers, the witnesses Thomas Thackeray, Stuart Greenhorn and Linda Bain, as to their identification of the appellant as the perpetrator of the crime libelled on the basis of their observations of CCTV footage recorded at Glenhove Stores, 92 Glenhove Road, Cumbernauld on 20 January 2011 and contained within Crown label productions 1 and 4. The minute included the following contentions:
"It can be seen from viewing Crown productions 1 and 4 that the individuals involved in the commission of said assault had their faces masked. The CCTV footage does not permit a clear enough view of the perpetrators to permit the Crown witnesses aforesaid a proper identification.
It is understood that the police witnesses aforesaid have no expert qualifications in facial recognition technique. That being so to allow the purported identification evidence of the minuter as being involved in said assault at trial would permit the very real possibility of a miscarriage of justice occurring. Accordingly the identification evidence sought to be adduced by the Crown at trial should be excluded."
[8] At a continued preliminary hearing on 4 July 2011, the court appointed 4 August 2011 as a hearing to which witnesses would be cited and evidence led in order to dispose of the minute lodged on behalf of the appellant. That diet was thereafter discharged on a joint application of parties made in terms of section 75A of the 1995 Act and a new diet of 18 August 2011 assigned in lieu.
[9] The hearing on 18 and 19 August 2011 was conducted by Lord Pentland. He heard the evidence of the three police officers named in the minute and two witnesses led on behalf of the appellant, Dr Allan McNeill, a psychologist and lecturer at Glasgow Caledonian University; and Andrew Rolph, a former police officer who had been in charge of the scientific support department of Grampian Police and had retired with the rank of detective inspector. Both Dr McNeill and Mr Rolph gave their evidence under reference to their respective reports.
[10] Lord Pentland repelled the objection to the admissibility of the evidence of the police officers of their identification of the appellant as the person shown in the CCTV footage. In his report to this court he summarises the evidence he had heard, the submissions of parties on that evidence and his reasoning as follows:
"2. In short, the evidence of the officers was to the effect that they studied the footage the day after the offence; some time later they identified the accused as the black-jacketed assailant because they recognised him from the footage and not, it may be noted, because they were previously familiar with him. By the time when they identified the accused, the officers were each aware that he was under suspicion as one of the perpetrators; there was police intelligence to that effect (which had apparently been graded as being reliable) and there was other circumstantial evidence, of which they were also aware, capable of pointing to him as one of the attackers. The information which had been accumulated against the accused by the stage of the identifications had been sufficient to justify a warrant being granted for his apprehension. The first two officers, Thackery and Bain, identified the Minuter at the time of executing the warrant and the third, Greenhorn, made his identification after the accused had been arrested and charged and was in police custody.
3. Each of the officers gave concrete and specific reasons to explain why they were able confidently to say that the Minuter was one and the same as the black-jacketed attacker. I need not go into the details (which differed somewhat as between the first of the witnesses and the other two), but I note that the footage clearly shows that this perpetrator did not have his face completely covered throughout the attack. I think it is fair also to observe that something at least can be discerned of his height and build and of the way he moved.
4. Against that body of evidence, Mr Jackson relied inter alia on the opinions expressed by the two facial recognition experts whom he called as witnesses. Their evidence was broadly to the effect that the footage was unsuitable to allow any reliable identification to be made from it. This was not because of the quality of the film, as is often the case, but rather because the images were insufficiently detailed to allow any safe identification to be made. Dr McNeill said that in the circumstances any identification should be treated with caution. Mr Rolf went further and said that he would strongly advise against using the images as any form of identification.
5. Mr Jackson did not ultimately challenge (at least for present purposes) the good faith of the officers in purporting to identify the Minuter. Instead, he submitted that they had inevitably approached the issue with a particular mindset (or, as he put it, idée fixe) because they knew that the Minuter was already suspected of being one of the...
To continue reading
Request your trial