Wishart v Corrins
| Jurisdiction | Scotland |
| Judge | Sheriff Principal DCW Pyle,Sheriff SF Murphy,Sheriff AL MacFadyen |
| Judgment Date | 01 December 2020 |
| Court | Sheriff Appeal Court |
| Docket Number | No 3 |
[2021] SAC (Crim) 1
Sheriff Principal DCW Pyle, Sheriff SF Murphy QC and Sheriff AL MacFadyen
Gubinas v HM Advocate [2017] HCJAC 59; 2018 JC 45; 2017 SLT 1017; 2017 SCCR 463; 2017 SCL 828
Hunter v Cottam 2011 SCCR 130
Shuttleton v Orr sub nom Shuttleton v Procurator Fiscal, Glasgow [2019] HCJAC 12; 2019 JC 98; 2019 SLT 719; 2019 SCCR 185
Justiciary — Evidence — Productions — Closed-circuit television footage — CCTV certificate incorrectly completed — CCTV footage played at trial without objection — Whether CCTV footage provenance proven by certificate — Criminal Procedure (Scotland) Act 1995 (cap 46), sec 283
Justiciary — Evidence — Productions — Closed-circuit television footage — CCTV certificate incorrectly completed — Parole evidence led about CCTV footage at trial — Whether parole evidence sufficient to prove provenance of CCTV footage
Marcus Wishart was charged in the sheriffdom of Tayside, Central and Fife at Kirkcaldy on a summary complaint at the instance of Sineidin Corrins, procurator fiscal there, with contraventions of secs 170(2) and (3) of the Road Traffic Act 1988. On 7 February 2020, the appellant was convicted after trial. The appellant thereafter appealed against conviction by way of stated case to the Sheriff Appeal Court.
Section 283 of the Criminal Procedure (Scotland) Act 1995 (cap 46) provides that a certificate purporting to be signed by a person responsible for the operation of a video surveillance system and certifying: (a) the location of the camera; (b) the nature and extent of the person's responsibility for the system; and (c) that visual images (and any sounds) recorded on a particular device are images (and sounds) recorded by the system of or relating to events which occurred at a place, date, and time specified in the certificate, shall be sufficient evidence of the matters contained in the certificate. In terms of subsecs (2) and (2A) in summary proceedings such a certificate, in order to rely upon subsec (1), must be served on the other party not less than 14 days before the trial diet. The second party has seven days from the date of that service to give notice that he does not accept the evidence contained in the certificate.
The appellant appeared on a summary complaint alleging contraventions of sec 170(2) and (3) of the 1988 Act. The allegation against him was that he had collided with a parked car at a leisure centre car park before driving away, not providing his name and address at the time, and not reporting the accident within 24 hours. There were no direct eyewitnesses but there was closed-circuit television footage which showed the appellant's vehicle apparently collide with the parked car. There was a certificate for the CCTV footage which had been timeously served and to which no counter-notice was served. The certificate, a pro forma, had not had the correct information inserted into various fields. The certificate was produced to the court during the trial. The CCTV footage was played by the Crown at trial without objection. Witnesses spoke to what the CCTV footage appeared to show and there was some evidence led of its seizure. At the end of the Crown case there was a submission made on behalf of the appellant of no case to answer. It was submitted that the provenance of the CCTV footage had not been properly evidenced because the certificate was deficient in several aspects and that without the CCTV footage there was insufficient evidence. The Crown noted that no counter-notice had been served on it in response to the CCTV certificate. The submission of no case to answer was repelled. The justice of the peace held that the necessary details were contained in the certificate. No defence evidence was led and the appellant was convicted. The appellant applied for a case to be stated to the Sheriff Appeal Court. The questions stated for the Sheriff Appeal Court were whether or not the sheriff had been entitled to repel the submission of no case to answer and whether or not there had been a sufficiency of evidence to convict the appellant of the charges.
On appeal it was argued for the appellant that the certificate was deficient such that the CCTV images were not proved or otherwise admitted into the evidence and thus could not be considered by the court, and that there was otherwise insufficient evidence of the provenance of the CCTV footage.
The respondent accepted that there was no obligation on the defence to draw attention to any deficiencies in the certificate, but noted that the CCTV footage had been led at trial without objection; that the certificate provided all the information required by sec 283 of the 1995 Act; and that even without the certificate there was sufficient evidence of the provenance of the CCTV footage in the evidence of the witnesses.
Held that: (1) in the absence of objection taken at trial, the CCTV footage became real evidence in the case and the justice had been entitled to view it and decide what it showed (paras 21–29); (2) although the compiler had not inserted the correct information into the certificate, that did not invalidate the document as a certificate, provided that the information required by sec 283 of the 1995 Act was contained somewhere in the document and, in all the circumstances, all of the necessary information had been contained within the document, such that it amounted to a certificate (paras 30–36); (3) even had the provenance of the CCTV images not been established by the sec 283 certificate, there had been sufficient evidence of provenance from the parole evidence led (paras 37–44); and appeal refused.
Gubinas v HM Advocate 2018 JC 45 discussed and Hunter v Cottam2011 SCCR 130distinguished.
The appeal called before the Sheriff Appeal Court, comprising Sheriff Principal DCW Pyle, Sheriff SF Murphy QC and Sheriff AL MacFadyen, for a hearing, on 1 December 2020.
Eo die the court refused the appeal for the reasons set forth in the opinion of the Court which was subsequently delivered by Sheriff AL MacFadyen—
Opinion of the Court—
[1] The appellant was convicted at the justice of the peace court at Kirkcaldy of contravening sec 170(2) and (4) and sec 170(3) and (4) of the Road Traffic Act 1988 (cap 52) as the driver of a motorvehicle which had been involved in an accident causing damage to another car on a road or other public place, namely the car park at Kirkcaldy Leisure Centre, Esplanade, Kirkcaldy on 14 September 2018, by failing to stop and give the necessary, relevant information to any person having reasonable grounds for so requiring; and, having failed to do so, by failing to report the accident to the police as soon as reasonably practicable and in any case within 24 hours. In refusing this appeal by stated case, we indicated that we would set out our reasons in writing.
[2] The conviction rested on proof of the occurrence of an accident, namely the collision between two motorvehicles. There were no eyewitnesses. There was however closed-circuit television (‘CCTV’) footage contained on a disc which, when taken with other evidence, proved that a collision occurred between the appellant's van and a parked car in a car park.
[3] That footage was produced by the Crown and played at the trial without objection from the defence. Witnesses watched it, were asked questions and gave evidence about it. CCTV images are real evidence. In a criminal trial the provenance of real evidence must be established. One of the methods of that establishment, unique to CCTV images, is by way of a party lodging a certificate authorised by the sec 283 of the Criminal Procedure (Scotland) Act 1995 (cap 46).
[4] Section 283(1) and (2) of the 1995 Act are in the following terms:
‘Evidence as to time and place of video surveillance recordings
(1) For the purposes of any criminal proceedings, a certificate purporting to be signed by a person responsible for the operation of a video surveillance system and certifying–
(a) the location of the camera;
(b) the nature and extent of the person's responsibility for the system; and
(c) that visual images (and any sounds) recorded on a particular device are images (and sounds), recorded by the system, of (or relating to) events which occurred at a place specified in the certificate at a time and date so specified,
shall, subject to subsection (2) below, be sufficient evidence of the matters contained in the certificate.
(2) A party proposing to rely on subsection (1) above (“the first party”) shall, not less than 14 days before the diet, serve on the other party (“the second party”) a copy of the certificate and, if the second party serves on the first party, not more than seven days after the date of service of the copy certificate on him, a notice that he does not accept the evidence contained in the certificate, subsection (1) above shall not apply in relation to that evidence.’
The Crown timeously served on the appellant a copy of what purported to be a certificate under that section in respect of the CCTV footage. No counter-notice under sec 283(2) was served by him on the Crown. The notice was produced without objection at the trial.
[5] The appellant made a submission of no case to answer under sec 160 of the 1995 Act. The part of the submission relevant to this appeal was to the effect that the provenance of the...
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