Times Law Reports/2005/June/(2005) Times, 1 June/Holland v HM Advocate - (2005) Times, 1 June
Holland v HM Advocate(2005) Times, 1 June Privy Council -- Scots law -- criminal proceedings -- dock identification dangers in jury direction PRIVY COUNCIL Published 1 June 2005 Before Lord Bingham of Cornhill, Lord Hope of Craighead, Lord Rodger of Earlsferry, Baroness Hale of Richmond and Lord Carswell Judgment May 11, 2005 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 European 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 at his trial. Similarly, he did not gainsay the positive disadvantages of an identification carried out when the accused was sitting in the dock between security guards: the implication that the prosecution was asserting that he was the perpetrator was plain for all to see. When a witness was invited to identify the perpetrator in court, there had to be a considerable risk that his evidence would be influenced by seeing the accused sitting in the dock in that way. So a dock identification could be criticised in two complementary respects: not only did it lack the safeguards that were offered by an identification parade, but the accused's position in the dock positively increased the
risk of a wrong identification. Those criticisms were at their most compelling in a case where a witness who had failed to pick out the accused at an identification parade was invited to try to identify him in court. The prosecutor was then seeking to use evidence obtained in circumstances which carried a heightened risk of a false identification, when he knew that the witness had been unable to identify under the controlled conditions of an identification parade. By leading and relying on such evidence, the prosecutor was introducing into the trial that particular element of risk. The potential dangers of a dock identification in those circumstances derived from aspects of human psychology which were the same in similar societies. In that respect witnesses and juries in a Scottish court were no different from witnesses and juries in, say, an English or Canadian court. So, when the Advocate-Depute invited the witness to identify the accused in such a case, the Crown were deliberately introducing an adminicle of evidence which certain other systems generally excluded; precisely because of the heightened risk that the identification would be mistaken. Except perhaps in an extreme case, there was no basis, either in domestic law or under the Convention, for regarding such evidence as inadmissible per se. The safeguards: for example, the requirement for corroboration, the opportunity for counsel to contrast the failure to identify at the parade with the identification in the dock and to comment accordingly, were, of course, important. Their mere existence could not be used, however, to justify the abstract proposition that in all cases in Scots law an accused who had been convicted on the basis of a dock identification had necessarily had a fair trial. In Scots law, as in any other system, the actual circumstances of any given trial had to be considered before one could say that it was fair. In some cases, for instance, the dock identification evidence of one witness would have been confirmed by the evidence of witnesses who knew the accused. In other cases, there might be DNA evidence confirming the identification. Again, however, the available corroboration might consist in facts and circumstances which were open to more than one interpretation, or else it might take the form of a dock identification by another witness who had failed to identify at the identification parade. Similarly, in most trials counsel would have duly cross-examined the witness about the purported identification, but in some the cross-examination might have been perfunctory. In some trials defence counsel might have made a powerful submission to the jury on the point; in others
counsel might have made little, or even nothing, of it. The effectiveness of those and other potential safeguards in securing a fair trial depended on what actually happened in the individual case. One potentially important safeguard lay in the judge's directions to the jury. It was necessary, however, to distinguish between directions which a judge gave on the approach to be adopted in relation to eye-witness identification evidence in general and directions on the dangers of dock identification evidence, in particular. Attention had been drawn to the Lord Justice General's 1977 Practice Note (REF) and to a series of decisions in which the appeal court had given guidance on eye-witness identification in general. Important as those were in relation to that matter, they did not deal with the peculiar dangers of a dock identification where a witness had previously failed to identify at an identification parade. Nor was there anything in the excerpts from the Judicial Handbook to suggest that judges should give a direction of that kind. Doubtless, in practice, judges often did so. However, given the importance of the safeguard, judges should give an appropriate and authoritative direction in all cases of that kind. The general lines of such a direction were obvious, but, ideally, in any given case its precise form would reflect the particular circumstances. In the instant case the judge had not given the jury such a clear warning. It was also submitted for the appellant that, by failing to disclose information about outstanding charges against the victims of the robbery, relating to drug dealing from the house where they had been attacked, the prosecution had further infringed his rights under article 6.1. There was no doubt that, historically, in Scotland the Crown had been reluctant to provide the defence w