Greg Robson Against Her Majesty's Advocate

Appellant: M C MacKenzie; Beaumont & Co

Respondent: Prentice QC Solicitor Advocate, AD; Crown Agent

4 June 2014

Introduction

[1] There are three issues in this appeal against conviction. First, whether a dock identification should have been admitted in evidence (cf Holland v HM Advocate 2005 1 SC (PC) 3). Secondly, whether there was a misdirection concerning “intent to rape”. Thirdly, whether no reasonable jury, properly directed, could have returned a verdict of guilty having regard to the identification evidence (section 106(3)(b) of the Criminal Procedure (Scotland) Act 1995).

Background

[2] On 24 January 2013, a jury at Edinburgh Sheriff Court found the appellant guilty of the following offences:

“(001) on 30 May 2010 at Easter Road, Edinburgh you GREG FRASER ROBSON did assault [CL] and did ask her to have sexual intercourse with you for payment, follow her, seize her by the body, place your hands between her legs and handle her thighs and place her in a state of fear and apprehension for her safety

(002) on 31 May 2010 at Albert Street, Edinburgh you GREG FRASER ROBSON did assault [GC]and did follow her, seize her by the body, state that you would pay her to take down her trousers, demand that she accompany you to a dark area, attempt to drag her bodily along the road, struggle with her, attempt to detain her against her will, order her to stop shouting for help, punch her on the head whereby she fell to the ground and place her in a state of fear and apprehension for her safety, all to her injury, and this you did with intent to rape her.”

The Crown had relied upon inter alia the evidence of each complainer, and the Moorov doctrine.

[3] The first complainer, Miss L, was assaulted in Easter Road, Edinburgh, on 30 May 2010. She reported the matter to the police. She was asked if she could identify her attacker from an emulator sheet which did not contain the appellant’s image. Miss L selected a stand-in. On 22 February 2011 Miss L saw a male at a pub in Edinburgh. She recognised him as her attacker, and contacted the police. Police officers detained and interviewed the male, who turned out to be the appellant. He denied all the allegations against him. At a subsequent VIPER identification parade on 6 January 2012, Miss L identified the appellant as her attacker. She also identified him in court at the trial in January 2013.

[4] The second complainer, Miss C, was from Italy. She was attacked in Albert Street, Edinburgh (a location near Easter Road) on 31 May 2010, the day after the assault on Miss L. She reported the matter to the police. As the sheriff narrates in her report:

“[5] [Miss C] said that the incident had lasted for about a minute and that she had seen her attacker’s face. She described him as being in his early 20’s with dark blond hair with blue or green eyes and of around 1.75m in height with quite a skinny build. He was wearing large clothes. She thought he was wearing blue jeans and a hoody which was light grey. She had thought at first that the man was Polish when he spoke to her but at that time she had not been in Scotland for long having arrived on 9 January 2010. She said he could have been Scottish. She had given a description to the police and a statement whilst in hospital at around 1.50am on 31 May 2010.

[6] On 1 June 2010 police officers attended at [Miss C’s] home address and showed her a book of photographs, Crown Production 34, in which she selected an image that she said she had told the police looked similar to her aggressor but that she did not think he was her aggressor.

[7] [Miss C] left Scotland after the incident and returned to Italy. Evidence was led later in the trial from DC Ryan Lee, Crown witness 12, that he had contacted her in Italy in March 2011 following upon the complainer in charge 1, [Miss L], having reported sighting the male who had attacked her standing outside the Eutopia Bar in Easter Road across from her flat on 22 February 2011. The police attended at Eutopia Bar within 10 to 15 minutes of her call and arrested and detained the male, the appellant. DC Lee had arranged a meeting with [Miss C] when she proposed to return to Edinburgh in April 2011. On 5 April 2011 she was shown a further book of photographs, Crown Production 35 [which contained an image of the appellant and 11 stand‑ins]. In her evidence [Miss C] said that she remembered the photographs in that book were very small and dark and that she could not find her aggressor in the photos shown. She said that she had told the officers present that the pictures were very small and dark and that she ‘could not tell’.

[8] [Miss C] attended a Viper identification parade on 6 January 2012 at St Leonards Police Station. She said that she had told the police that it was quite hard to identify her aggressor from the clippings but that it would be easy to identify him if she saw him face to face. She did not identify any clipping as her attacker but picked out No’s 2, 3 and 4 as having similarities to him. She had said that No 2 was similar in the nose and colour of hair of her assailant; that No 3 was similar in the eyes; and that No 4 was similar in relation to the ears. No 3 was a Viper clip of the appellant. She was asked by the procurator fiscal if she would be able to identify the person who had assaulted her if she saw him again. She replied that if the procurator fiscal meant seeing him face to face that she thought she would. She was then asked by the procurator fiscal depute if she could see her aggressor in court. At this point the appellant’s counsel Mr McCluskey objected and the jurors were invited the retire.”

Having heard submissions, the sheriff repelled the objection. Miss C subsequently identified the appellant as her assailant.

Submissions for the appellant

Ground of appeal 1: evidence of dock identification

[5] As the Crown relied on the Moorov doctrine, the Crown could not prove its case without a positive identification from Miss C at the trial. In the light of Miss C’s repeated failures to identify the appellant in pre-trial procedures, the sheriff was invited to hold that any attempt made by Miss C to make an identification in court would be unfair. The sheriff erred in repelling that objection, and in allowing Miss C to dock identify the appellant.

[6] There was a long background of concern about the safety of dock identifications. Although the Thomson committee in 1975 had made a recommendation that dock identifications should no longer be used, that recommendation had not been followed. The question of dock identification had been examined by the Privy Council in Holland v HM Advocate 2005 SC (PC) 3. Reference was made to paragraphs [47] and [57], and to the category of “extreme case” when it would be unfair to allow an attempt at identification in court. Miss C’s failure positively to identify anyone in photographs or at the VIPER parade, together with the passage of time, placed this case in the extreme category.

[7] One question to be weighed in each case was the centrality and importance of the particular dock identification. In the present case (in contrast with Gage v HM Advocate 2012 SCCR 254 where the impugned identification was not central to the case against the appellant) the Crown depended upon two complainers and the application of the Moorov doctrine. Thus the court had to look very carefully at whether the pre-trial procedures (the VIPER parade, photographs etc) provided a sufficient safeguard in the case of each complainer. Miss L had made a positive identification at a VIPER parade. Accordingly no objection had been taken to a question asking her if she could see her assailant in court. But Miss C’s failure to identify the appellant at the pre-trial procedures with their built-in safeguards (such as the promptness of these procedures following upon the alleged offence, and the permitted presence of a legal representative who could, for example, object to a stand‑in) meant that an attempted identification in court by Miss C was unfair. The sheriff had reached the wrong conclusion in paragraph [11] of her report. Contrary to her approach, there were no checks on Miss C’s dock identification. It was not appropriate to seek a safeguard in the identification relating to the other charge; Miss C’s identification evidence was critical. What Miss C said at the VIPER parade (as noted in paragraph [8] of the sheriff’s report) did not go far enough, as she had selected the appellant only on the basis of one of three, and she also made a comment “I don’t know”. That was not a basis upon which the Crown could fairly lead evidence of a dock identification. The present case, where the only identification made by Miss C was of the appellant when sitting in the dock between two guards, encapsulated the very risks and dangers inherent in a dock identification. A miscarriage of justice had occurred. The first ground of appeal should be allowed, and the convictions quashed.

Ground of appeal 3 (the esto basis): “intent to rape”

[8] In relation to the second charge, the jury were being asked to apply their minds to the same question as that contained in a charge of rape or attempted rape. But the sheriff had not defined the actus reus – i.e. what in legal terms “sexual intercourse” meant. That was a misdirection of some materiality, aggravated by the fact that the sheriff did not give a specific direction that those words could be deleted (although admittedly a general direction about deletion was given at page 26 of the charge).

Ground of appeal 6: no reasonable jury, section 106(3)(b)

[9] Miss L had acknowledged that she had a...