James Holland V. Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Abernethy,Lord Justice Clerk,Lord Osborne |
| Court | High Court of Justiciary |
| Docket Number | XC783/03 |
| Date | 21 August 2003 |
| Published date | 21 August 2003 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Justice Clerk Lord Osborne Lord Abernethy
| Appeal No: XC783/03 OPINION OF THE LORD JUSTICE CLERK in APPEAL by JAMES HOLLAND Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Appellant: M E Scott QC, D A C Young; Drummond Miller, WS
Respondent: Turnbull QC, AD; Crown Agent
21 August 2003
Introduction
[1]On 22 April 2002 at Glasgow High Court the appellant was convicted of inter alia the following charges:
"(2)on 4 September 2001 at Flat 0/2, 11 Western Avenue, Rutherglen you JAMES HOLLAND did, while acting with two other persons, assault John Lawrence Lynn and Alison Gilchrist, both residing there, present a knife and a firearm at them, repeatedly threaten them with violence, repeatedly demand money and other property from them, repeatedly seize said Alison Gilchrist by the hair and pull her by the hair, tie her hands together, force her to kneel on the floor, place your hand over her nose and mouth, attempt to remove two chains from around her neck, forcibly remove a ring from her hand and rob her of said ring, tie John Lawrence Lynn's hands together, force him to lie on the floor, remove a chain from around his neck and rob said John Lawrence Lynn of said chain;
(3)on 9 September 2001 at the shop premises occupied by R S McColl Limited at Rankin Gate, Carluke you JAMES HOLLAND and STEPHEN FOY did assault Stuart Simpson, manager of said shop, present a firearm at him, place said firearm at his head, demand money from him, compel him under threat of violence to show you the location of the safe within said premises and compel him under threat of violence to open said safe and rob him of a quantity of cigarettes, lottery tickets and telephone cards and £400 or thereby of money and thereafter lock him in a storeroom within said premises."
Pre-trial identification
[2]The complainers on charge (2) were registered disabled persons. Miss Gilchrist was in poor health. Mr. Lynn was blind in one eye and had poor sight in the other. In the early stages of the police enquiry, Miss Gilchrist gave a description of one of her assailants and identified the accused from police photographs. She then attended an identification parade and identified two stand-ins. In her police statement and in her Crown precognition, she said that she could not identify any of the assailants other than the robber in "the grey fleece" who had seized hold of her.
[3]Jamie Gilchrist, Miss Gilchrist's son, returned home in the course of the robbery. He attended an identification parade and picked out the appellant, but an issue remained at the trial as to whether this was a proper identification or merely a statement that the appellant resembled one of the assailants.
[4]Mr Simpson, the complainer on charge (3), was alone when he was assaulted and robbed. There was no other eye-witness on this charge. During the police enquiry, Mr Simpson gave a description of one of his assailants and identified the appellant from police photographs. He then attended an identification parade at which he identified two stand-ins.
The objection at the trial to dock identification
[5]The issue in this appeal was raised early in the trial in the form of an objection taken by counsel for the appellant before Miss Gilchrist was brought into court. It is agreed that the advocate depute proposed to ask Miss Gilchrist, and in due course Mr Simpson, whether or not they could identify any of their assailants in court. Counsel for the appellant objected to the proposed identifications. Her grounds of objection were (1) that dock identification, unlike identification at a parade, was inherently unsafe; and (2) that it had the effect of compelling the accused to assist the Crown case during the trial by exhibiting himself for the purpose of identification; and that on that account it offended against the right to a fair trial and the presumption of innocence safeguarded by article 6 of the European Convention on Human Rights (the Convention).
[6]In support of the first ground of objection, counsel for the appellant referred to the discretion conferred on the court in England, by section 78 of the Police and Criminal Evidence Act 1984, to exclude evidence on the ground of the adverse effect that it would have on the fairness of the proceedings. She also referred to certain English case law on the point.
[7]The advocate depute submitted that dock identification was normal in Scottish criminal procedure. It had not been prohibited in any jurisdiction within the Convention countries. The question was whether the trial as a whole would be rendered unfair if such evidence were admitted. The court could not prejudge the issue before the evidence had been led or decide an issue that was essentially a jury question, namely the credibility and the reliability of witnesses' identifications, if any were to be made. The privilege against self-incrimination was not absolute (Brown v Stott, 2001 SC (PC) 43, Lord Bingham of Cornhill at p. 60A-D; and 2000 JC 328, Lord President Rodger at pp. 344H-345B). In the present case there were explanations for the witnesses' failures to identify at the parades. Miss Gilchrist had been unsettled by the sound of laughter at the parade and had thought that the laughter was directed at her. Mr Simpson said that he had found the whole experience of the parade intimidating.
The decision of the trial judge
[8]In brief, the trial judge held that the decisive issue was whether the proceedings as a whole were fair. To decide that issue, he had to look to the interests of the public as well as of the accused. If dock identification was unfair per se, it was surprising that the objection had not been taken before. He did not find much assistance in looking to the situation in England. The role of the judge under section 78 of the Police and Criminal Evidence Act 1984 was not identical with the role of a Scottish trial judge. Dock identification was subject to safeguards such as the need for corroboration; the right of the defence to challenge the reliability of the identification in cross-examination and to make a common law submission on the evidence; and the protection of the standard directions to the jury on the dangers attending identification evidence.
[9]The trial judge concluded that it was for the jury to determine what weight to give to any dock identification evidence. He could not hold at that stage that a dock identification, if one were to be made, would inevitably render the trial unfair, notwithstanding the safeguards to which he had referred. He reached this view under both Scots domestic law and article 6. He therefore repelled the objection on its first ground.
[10]On the second ground, the trial judge held that merely to sit in the dock and be open to identification did not infringe the accused's privilege against self-incrimination. Having regard to Beattie v Scott (1990 SCCR 296) and to Brown v Stott (supra), he considered that there was a material distinction between passive and active assistance to the Crown case by the accused. He therefore repelled the objection on its second ground.
The evidence of identification at the trial
[11]On charge (2) Miss Gilchrist identified the appellant as being one of the robbers. She also identified the co-accused as being one of them; but the co-accused was not charged with this robbery. She said that the appellant was the man who had the gun. In cross-examination it was put to her that she had told the police that she would be unable to identify anyone other than the man in the grey fleece. She denied having said that; but the police evidence was to the effect that she had.
[12]Jamie Gilchrist said nothing about the identification parade. He identified the appellant as being one of the three men who ran out of the building as he arrived. In cross-examination, he said that it was possible that he could be mistaken, but that the appellant looked very much like the man. In re-examination he said that he was "sure" of his identification of the appellant.
[13]By reason of his defective sight Mr. Lynn was not asked if he could identify any of the robbers.
[14]On charge (3) Mr. Simpson identified the appellant as being one of the robbers. He said that he was the man whom he had picked out at an identification parade. It was put to him that he was wrong about that. He said that no one had told him at the parade that he had picked the right man. Mr. Simpson also identified the co-accused.
[15]The Crown led no evidence about the identification parades. On charge (2) it relied on the dock identifications made by Miss Gilchrist and Jamie Gilchrist, together with the finding of an air pistol (label 1) in the possession of the appellant at the time of his arrest, six days after the incident in charge (3), which Miss Gilchrist, Mr. Lynn and Jamie Gilchrist said was similar to the weapon used in the robbery in charge (2). On the face of it, therefore, there was a sufficiency of evidence to entitle the jury to convict the appellant on charge (2). On charge (3), the Crown relied upon the dock identification made by Mr. Simpson, who also said that the air pistol (label 1) was similar to the weapon used in the robbery in charge (3), and, for corroboration, on the evidence on charge (2) on the Moorov principle. On these charges, therefore, the dock identifications of the appellant were crucial to the Crown case.
[16]At the conclusion of the evidence, counsel for the appellant made a common law submission on the sufficiency of the evidence against the appellant. The trial judge repelled it.
The grounds of appeal
[17]This hearing has been confined to two of the grounds of appeal. The first is that the trial judge erred in repelling the objection to the proposed dock identification (a) because such identification is unfair and unreliable per se, and (b) because it has the effect of compelling the accused to assist the Crown by...
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