James Holland v HM Advocate

When, in Scottish criminal proceedings, a witness made a dock identification of the accused, having previously failed to identify him at an identification parade, the judge should give an appropriate and authoritative direction to the jury about the dangers inherent in that identification if the accused was to be regarded as having had a fair trial.

Under article 6.1 of the EEuropean Convention of Human Rights, the accused's agents and counsel were entitled to have disclosed to them information about the previous convictions of, or outstanding charges against any witness to be led at the trial, so that they could prepare the accused's defence.

The Privy Council so held in considering a devolution issue and allowing an appeal by John Holland against decisions of the High Court of Justiciary (Lord Justice Clerk (Lord Gill), Lord Osborne and Lord Abernethy) dated August 21, 2003 and a further decision of that (Lord Justice Clerk (Lord Gill), Lord Penrose and Lord Hamilton) dated June 16, 2004 dismissing his appeal from his conviction on April 22, 2002 at Glasgow High Court (Lord Menzies and a jury) of two charges of armed robbery.

Ms Margeret E. Scott, QC, Mr Shahid Latif and Ms Shelagh McCall for the appellant; Mr Neil Brailsford, QC, Mr Iain Armstrong, QC and Ms Angela Grahame for HM Advocate.

LORD RODGER said that it was trite that the Convention did not concern itself with the law of evidence as such. In particular, it did not lay down that certain forms of evidence should be regarded as inadmissible. Such questions were left to the national legal systems.

What article 6 did was guarantee a fair trial and so, when the introduction of some form of evidence was said to have infringed the accused's article 6 rights, the question always was whether admitting the evidence had resulted in the accused not having a fair trial in the circumstances of the particular case.

While one could not exclude the possibility that, in an extreme case, the judge could conclude that admitting dock identification evidence would inevitably render the trial unfair, normally the requirements of article 6 would not raise any issue of admissibility.

Similarly, while there might occasionally come a time in the course of a trial when the judge could conclude that the dock identification evidence had made the trial unfair, in most cases it would be impossible to reach a view on that matter until the judge had given his directions to the jury and they had returned their verdict.

In effect, therefore, the issue would generally be for the appeal court to determine after considering all the relevant aspects of the trial.

Two factors which would weigh in favour of the conclusion that an accused had indeed had a fair trial would be the fact that he was legally represented and that the rights of the defence had been respected, with the accused's representative being able to challenge the admissibility of the evidence, to cross-examine the witness and then to address the jury on the weaknesses of the evidence.

It would also be important to consider any directions which the judge gave to the jury about the identification evidence. The significance of the contested evidence in the context of the prosecution case as a whole would also be relevant.

In particular, had it been one of the principal planks in the case against the accused or was there a substantial body of other evidence pointing to his guilt? Since decisions were thus liable to depend very much on the circumstances of the individual case, they were likely to afford only limited guidance in subsequent cases.

Moreover, the Board were concerned only with the issues in a case where identification had been a live issue at the trial and the Crown witnesses who identified the accused in court had previously failed to pick him out at an identification parade.

Therefore the appeal did not touch the use of dock identification in other cases.

Nor, of course, did it cast any doubt on the requirement that a Crown witness's identification of the accused should not, generally, be left to implication.

The Advocate-Depute had accepted that identification parades offered safeguards which were not available when the witness was asked to identify the accused in the dock...