N.c. V. Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Brodie,Lord Menzies,Lord Wheatley |
| Judgment Date | 18 September 2012 |
| Neutral Citation | [2012] HCJAC 139 |
| Published date | 25 October 2012 |
| Docket Number | XC420/12 |
| Court | High Court of Justiciary |
| Date | 18 September 2012 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Menzies Lord Brodie Lord Wheatley | [2012] HCJAC 139 Appeal No: XC420/12 OPINION OF THE COURT delivered by LORD BRODIE in Appeal in terms of section 74(1) of the Criminal Procedure (Scotland) Act 1995 by NC Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Appellant: MacKenzie and Jones; Beaumont & Co, Edinburgh
Respondent: Brown QC AD; Crown Agent
18 September 2012
Introduction
[1] This is an appeal in terms of section 74(1) of the Criminal Procedure (Scotland) Act 1995 against a decision by the sheriff at Edinburgh refusing, under reference to a preliminary issue minute and an associated devolution minute, to hold that evidence of dock identification of the appellant was inadmissible at trial on the view that the leading of such evidence was incompatible with the appellant's rights under article 6(1) of the European Convention on Human Rights.
Procedural history
[2] The appellant appeared from custody on 19 May 2011 charged on petition with assault to severe injury and permanent disfigurement, the assault being alleged to have occurred in a nightclub on 12 May 2011. The appellant was released on bail subject to conditions which included a condition that she must attend an identification parade if reasonably requested to do so.
[3] The Crown disclosed witness statements to the defence from which those acting for the appellant ascertained that five witnesses were able to give evidence bearing on the identification of the person who had allegedly assaulted the complainer. The appellant had not previously been known to any of these witnesses. One witness, the complainer, had picked out a photograph of the appellant from an emulator sheet as the person she said had assaulted her. None of the other witnesses had apparently been shown an emulator sheet or been asked to participate in an identification parade or any similar procedure.
[4] On 1 November 2011 the case called for a first diet at Edinburgh Sheriff Court. The first diet was continued for the period of a week to allow the Crown to disclose, inter alia, the relevant emulator sheets and certain CCTV footage. On 7 November 2011, in terms of section 67(5) of the 1995 Act, the court allowed the emulator sheets to be added to the list of productions. No CCTV footage of evidential value was produced. On 8 November 2011 at the continued first diet, an application was made to the sheriff in terms of section 290 of the 1995 Act to order the prosecutor to hold an identification parade in which the appellant should be one of those constituting the parade. The sheriff being satisfied that the case was likely to proceed to trial on the date assigned and that that sitting was due to commence on 14 November 2011, refused the application as coming too late. Subsequently, on defence motion, the trial was adjourned to the sitting commencing 19 March 2012 and then, again on defence motion, to the sitting commencing 25 June 2012.
[5] The appellant brought a bill of advocation in respect of the sheriff's decision to refuse the application to order the holding of an identification parade. On 2 May 2012 that bill of advocation was refused by the Appeal Court.
[6] A preliminary issue minute and a devolution minute were lodged on 16 May 2012. In each minute it was stated that the appellant sought a declarator that the Lord Advocate had no power to seek a dock identification at trial (cf Brown v Stott 2000 SCCR 314 at 342). The minutes came before the sheriff on 4 July 2012. Notwithstanding the precise terms of the minutes parties were agreed that the sheriff should deal with matters as a preliminary issue on the question of the admissibility of the identification evidence . On 5 July 2012 the sheriff refused both minutes. The appellant now appeals that decision.
Submissions of parties
The appellant
[7] Miss MacKenzie, on behalf of the appellant, confirmed in the course of her submissions that what was looked for was a ruling, pre-trial, that any evidence in the nature of a "dock identification" was, in the circumstances of this particular case, inadmissible. She accepted that it would not apply to the complainer who had picked out a photograph of the appellant from an emulator sheet but it would apply to three eye-witnesses and a fourth witness, a police officer, who had viewed CCTV footage in the company of a door steward, which footage showed a female figure who, according to the door steward, had made an incriminating remark. Thus, notwithstanding the precise terms of the minutes and consistent with the approach of the sheriff, matters were conducted broadly as if the appellant had, as she was required to in terms of section 79 (1) and (2) (b) (iv) of the 1995 Act, given notice of an objection to the impugned evidence and the objection had then been considered at a first hearing as provided by section 71 (2) of the Act and the sheriff's decision on the objection had then been appealed, as provided by section 74 (1).
[8] It was not Miss MacKenzie's submission that dock identification is, per se, inadmissible, but she said that there were extreme cases where it would be unfair to allow the prosecution to rely on a dock identification where there had been no previous identification parade. This was such a case. On the disclosed evidence, identification of the person who had assaulted the complainer depended entirely on eye-witness evidence. As Miss MacKenzie offered to demonstrate by showing the court copies of the disclosed statements, the eye-witnesses had given differing descriptions of the assailant. The defence had invited the Crown to arrange an identification parade but the Crown had refused to do so. No reason had been advanced for this refusal. It was to be borne in mind that the circumstances in which the assault had occurred were very unfavourable to any reliable eye-witness identification. None of the eye-witnesses knew the appellant. The alleged offence had occurred in a nightclub, late at night, when all concerned had consumed alcohol. The opportunity to view the assailant had been fleeting. Witnesses referred in their statements to their "shock" at the events which they had witnessed. This made the holding of an identification parade all the more important. Doing so would be consistent with the Lord Advocate's Guidelines to Chief Constables on the Conduct of Visual Identification Procedures. Miss MacKenzie invited the court to follow the guidance which was available from the decisions of the Privy Council in Tido v The Queen [2012] 1 WLR 115 and France and Vassell v The Queen [2012] UKPC 28. That there might be an extreme case where a court should conclude that admitting dock identification evidence would inevitably render the trial unfair, had been recognised by Lord Rodger in Holland v HM Advocate 2005 1 SC (PC) 3 at para 41.
The respondent
[9] The advocate depute invited the court to refuse the appeal. Essentially, the appellant was inviting the court to evaluate the quality of evidence which might be led at trial. Not only was this to usurp the function of the jury but it was premature. It was conceded on behalf of the appellant that reliance on dock identification was not necessarily unfair (and this was a case which did not rely entirely on dock identification). Miss MacKenzie had said that this was an extreme case but she had not explained why. It would be for the trial judge to give an appropriate direction warning of the risks of eye-witnesses making a mistake in identification. The importance, and therefore the value, of such directions had been recognised by Lord Kerr giving the judgment of the Privy Council in Tido v The Queen supra at para 21. The Lord Advocate's guidance which had been referred to by Miss MacKenzie was not authoritative. While identification in this case relied very substantially on eye-witness evidence there were some other adminicles spoken to by the complainer. The Crown had...
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