James Holland v HM Advocate
| Jurisdiction | UK Non-devolved |
| Judge | Lord Bingham of Cornhill,Lord Hope of Craighead,Lord Rodger of Earlsferry,Baroness Hale of Richmond,Lord Carswell |
| Judgment Date | 11 May 2005 |
| Neutral Citation | [2005] UKPC D1 |
| Docket Number | DRA. No. 1 of 2004 |
| Court | Privy Council |
| Date | 11 May 2005 |
[2005] UKPC D1
Privy Council
Present at the hearing:-
Lord Bingham of Cornhill
Lord Hope of Craighead
Lord Rodger of Earlsferry
Baroness Hale of Richmond
Lord Carswell
I have had the opportunity of reading in draft the opinions of my noble and learned friends Lord Hope of Craighead and Lord Rodger of Earlsferry. I am in complete agreement with them, and for the reasons that they give would make the orders which Lord Rodger proposes.
I have had the advantage of reading in draft the opinion of my noble and learned friend Lord Rodger of Earlsferry. For the reasons which he has given, with which I am in full agreement, I would allow the appeal and make the order which he proposes. I should however like to add these brief observations on the use of dock identification evidence.
There is no doubt that Scotland is unique among the jurisdictions in the United Kingdom in the significance that it attaches to dock identification. But in the appeal court, as the Lord Justice Clerk (Gill) records in his opinion, 2003 SLT 1119, 1123, para 25, counsel for the appellant submitted that Scots law on this point compared unfavourably with all other comparable jurisdictions. The advocate depute submitted, on the other hand, that there were numerous other jurisdictions in which dock identifications were allowed. The Lord Justice Clerk said that counsel for the appellant had failed to satisfy him that Scots law was unique among all other comparable jurisdictions in this respect: p 1124, para 31.
No attempt was made to deploy any comparative material on this issue during the hearing before the Board. In a letter which was submitted after the hearing the Deputy Crown Agent said that the advocate depute's submissions to the appeal court were based on a document about the use of dock identifications in other European jurisdictions which had been obtained from Eurojust, and their Lordships have been shown a copy of that document. As the appellant's counsel have pointed out, however, it is difficult to make reliable comparisons as the practices of inquisitorial systems differ markedly from the Scottish system with regard to the gathering and adducing of evidence. The most that can be taken from the brief descriptions contained in this document is that, while dock identifications are used in a number of European systems, these systems vary in their approach to evidence of identification generally and in the weight that is to be attached to dock identifications in particular.
I do not think that this material assists one way or the other in resolving the issue which lies at the heart of this case, which is whether dock identification evidence is incompatible with the article 6(1) right to a fair trial. As the jurisprudence of the European Court to which Lord Rodger refers makes clear, it is not its practice to address issues about the admissibility of evidence in the abstract or to deal with them as issues of principle: see especially Schenk v Switzerland (1988) 13 EHRR 242, 266, para 46. So I would reject any suggestion that the use of dock identification evidence in solemn proceedings must always be regarded as incompatible with the accused's article 6(1) Convention right to a fair trial, even if Scots law is indeed unique in the importance which it attaches to such evidence. It all depends upon the facts of the case – whether the use of this kind of evidence could be said in the particular circumstances to have been unfair.
Looking at the point more generally, I see no reason why Scots law should be diverted from its current practice in the use of dock identification evidence even if it were the case that all other comparable jurisdictions regard this as unacceptable. It is pre-eminently a matter for each jurisdiction to determine its own rules of evidence. Particular care must of course be taken, where identification is likely to be a real issue in the case, to ensure that the way the evidence is obtained and presented is compatible with the accused's article 6(1) right to a fair trial. Guidance as to what is and what is not unfair is to be found in the Second Report of the Thomson Committee in 1975 (Cmnd 6218). In para 134 of its report the Committee recommended that it ought not to be competent for the Crown to ask a witness who had viewed an identification parade and had failed to identify the accused on that occasion to identify the accused in court. But in para 133 the Committee also recommended that it should be competent for the prosecutor to ask a witness who confirms that he did identify the accused at the parade whether the accused in the dock is that person. This shows that the Committee was content to accept that there was no fundamental objection to the practice of dock identification as such.
In Bruce v H M Advocate, 1936 JC 93, a number of witnesses who were asked to speak to certain facts in connection with the indictment spoke of "the accused James Bruce". But they were not asked directly to identify in court the person to whom they were referring in their evidence. At p 95 Lord Wark said that, as a matter of practice, the identification of the accused by witnesses who are speaking to the facts should, in every case, be a matter of careful and express question on the part of the prosecutor; see also Wilson v Brown, 1947 JC 81, where witnesses said that they knew the licence holder but were not asked to identify the accused as that person. In Stewart v H M Advocate, 1980 SLT 245, 251, Lord Justice General Emslie re-affirmed what he described as the general rule of practice, that where the Crown sets out to prove that a particular person is the perpetrator of a crime the identification of the accused as its perpetrator must not be left to implication.
If this rule is to be applied correctly, the accused – in whose favour, after all, the rule has been devised as a matter of fairness – must accept the fact that witnesses for the Crown may be asked from time to time during the trial to confirm that he is the person to whom they are referring in their evidence. This includes witnesses who were responsible for the conduct of any identification parade as well as those in whose case, because they knew the accused, the holding of a parade was thought to be unnecessary. The general rule and the practice of asking witnesses to confirm that the person in the dock, or which of them if more than one, is the person to whom they are referring go hand in hand. It would not be possible to abandon the practice without departing from the rule too.
The decision in this case demonstrates the limits beyond which the practice of dock identification cannot be taken without risk to the accused's article 6(1) Convention right to a fair trial. But it should not be taken as a signal that the practice of inviting witnesses to say whether the person to whom they are referring is in court, and if so to identify him, is itself objectionable and should now be departed from.
The appellant is James Holland who went to trial along with his co-accused, Stephen Foy, at the High Court at Glasgow in April 2002. On 22 April the appellant was convicted inter alia of two charges of assault and robbery (charges 2 and 3). Charge 2 related to an incident at a house at 11 Western Avenue, Rutherglen on 4 September 2001, while charge 3 concerned an incident at shop premises at Rankin Gate, Carluke on 9 September 2001. In addition, the appellant was convicted of two comparatively minor charges: having with him, without lawful authority or reasonable excuse, a loaded air pistol in Tollcross Road, Glasgow on 15 September 2001, contrary to section 19 of the Firearms Act 1968 (charge 4); and attempting to pervert the course of justice by giving the police a false name, also on 15 September 2001 (charge 5).
The appellant appealed against his conviction of charges 2 and 3 on the ground, inter alia, that the prosecution conducted in the name of the Lord Advocate had infringed his article 6 Convention rights, first, because the Crown relied on evidence from witnesses who identified him when he was sitting in the dock during his trial and, secondly, because the Crown had failed to disclose certain information to the defence. The appeal thus raised devolution issues in terms of para 1(d) and (e) of schedule 6 to the Scotland Act 1998. The appeal court considered the appeal in two stages. In the first, 2003 SLT 1119, the Lord Justice Clerk (Gill), Lord Osborne and Lord Abernethy, rejected the ground relating to the dock identification and in the second, 2004 SLT 762, the Lord Justice Clerk, Lord Penrose and Lord Hamilton, rejected the ground relating to the alleged failure to disclose the information. In the result they refused the appeal against conviction. On 24 June 2004 the appeal court refused leave to appeal to the Board on the devolution issues, but on 28 July 2004 the Board granted special leave to appeal.
To set the scene, it is necessary to explain the circumstances in a little more detail. I gratefully adopt the trial judge's narrative of the events giving rise to the assault and robbery charges, as they emerged in evidence at the trial.
The Crimes
The complainers in charge 2, a Miss Gilchrist and a Mr Lynn, lived together and were both disabled. At about 9 pm on 4 September 2001 they were at home, expecting Miss Gilchrist's son, Jamie, to return from coaching football for younger children. There was a knock at the front door and, when Miss Gilchrist opened it, she saw three men. One of them had a gun and another had a knife. She screamed and they grabbed her by the hair and pushed her back into the flat. She was dragged to the living room...
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Subject Index
...151.......................................................... 197, 201Holbrook v Flynn, 475 US 560 (1986) ......3 01Holland v HM Advocate [2005] UKPC D1....................................................................2 98Hols v Netherlands, Application No. 25206/94, judgment of 19 Octobe......
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Table of Cases
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