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 Haleof Richmond and Lord Carswell
Judgment May 11, 2005
When, in Scottish criminal proceedings, a witness made a dock identification of the accused, havingpreviously failed to identify him at an identification parade, the judge should give an appropriate andauthoritative direction to the jury about the dangers inherent in that identification if the accused was to beregarded as having had a fair trial.
Under article 6.1 of the European Convention of Human Rights, the accused's agents and counsel wereentitled to have disclosed to them information about the previous convictions of, or outstanding chargesagainst 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 againstdecisions 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 LordHamilton) dated June 16, 2004 dismissing his appeal from his conviction on April 22, 2002 at Glasgow HighCourt (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 wereleft 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 saidto have infringed the accused's article 6 rights, the question always was whether admitting the evidence hadresulted in the accused not having a fair trial in the circumstances of the particular case.
Page 1
While one could not exclude the possibility that, in an extreme case, the judge could conclude that admittingdock identification evidence would inevitably render the trial unfair, normally the requirements of article 6would not raise any issue of admissibility.
Similarly, while there might occasionally come a time in the course of a trial when the judge could concludethat the dock identification evidence had made the trial unfair, in most cases it would be impossible to reacha 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 therelevant aspects of the trial.
Two factors which would weigh in favour of the conclusion that an accused had indeed had a fair trial wouldbe the fact that he was legally represented and that the rights of the defence had been respected, with theaccused's representative being able to challenge the admissibility of the evidence, to cross-examine thewitness 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 identificationevidence. The significance of the contested evidence in the context of the prosecution case as a wholewould also be relevant.
In particular, had it been one of the principal planks in the case against the accused or was there asubstantial body of other evidence pointing to his guilt? Since decisions were thus liable to depend verymuch on the circumstances of the individual case, they were likely to afford only limited guidance insubsequent cases.
Moreover, the Board were concerned only with the issues in a case where identification had been a liveissue at the trial and the Crown witnesses who identified the accused in court had previously failed to pickhim 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 accusedshould not, generally, be left to implication.
The Advocate-Depute had accepted that identification parades offered safeguards which were not availablewhen 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 accusedwas sitting in the dock between security guards: the implication that the prosecution was asserting that hewas 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 hisevidence 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 safeguardsthat were offered by an identification parade, but the accused's position in the dock positively increased the
Page 2
risk of a wrong identification.
Those criticisms were at their most compelling in a case where a witness who had failed to pick out theaccused 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 riskof a false identification, when he knew that the witness had been unable to identify under the controlledconditions of an identification parade.
By leading and relying on such evidence, the prosecutor was introducing into the trial that particular elementof risk.
The potential dangers of a dock identification in those circumstances derived from aspects of humanpsychology which were the same in similar societies. In that respect witnesses and juries in a Scottish courtwere 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 weredeliberately introducing an adminicle of evidence which certain other systems generally excluded; preciselybecause 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, forregarding such evidence as inadmissible per se.
The safeguards: for example, the requirement for corroboration, the opportunity for counsel to contrast thefailure to identify at the parade with the identification in the dock and to comment accordingly, were, ofcourse, important.
Their mere existence could not be used, however, to justify the abstract proposition that in all cases in Scotslaw 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 beforeone could say that it was fair.
In some cases, for instance, the dock identification evidence of one witness would have been confirmed bythe evidence of witnesses who knew the accused. In other cases, there might be DNA evidence confirmingthe identification.
Again, however, the available corroboration might consist in facts and circumstances which were open tomore than one interpretation, or else it might take the form of a dock identification by another witness whohad failed to identify at the identification parade.
Similarly, in most trials counsel would have duly cross-examined the witness about the purportedidentification, 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
Page 3
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 actuallyhappened in the individual case.
One potentially important safeguard lay in the judge's directions to the jury. It was necessary, however, todistinguish between directions which a judge gave on the approach to be adopted in relation to eye-witnessidentification 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 ofdecisions 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 dockidentification 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 adirection of that kind. Doubtless, in practice, judges often did so.
However, given the importance of the safeguard, judges should give an appropriate and authoritativedirection in all cases of that kind. The general lines of such a direction were obvious, but, ideally, in any givencase 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 chargesagainst the victims of the robbery, relating to drug dealing from the house where they had been attacked, theprosecution 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 withdetails of the previous convictions of witnesses in advance of trial. In more recent years the practice of theCrown had been somewhat modified so as to permit disclosure of previous convictions where the defenceagents could show that they would be relevant to the proposed defence.
Although the new approach constituted a significant advance on the traditional stance of the Crown, it stillrequired procurators-fiscal to decide whether the circumstances were such that, in the public interest, thewitnesses' previous convictions should be revealed to the accused's representatives. That procedure wasopen to the kind of criticism expressed by the European Court of Human Rights in Rowe and Davis v UnitedKingdom (Application No 28901/95) (The Times March 1, 2000, (2000) 30 EHRR 1, 30).
Although it was open to the defence to apply to the court for an order for production, the new scheme placedprocurators-fiscal and Crown counsel in the invidious position of having to judge the relevance of previousconvictions to a defence, the lines of which the accused's representatives were generally under no obligationto reveal.
In reality, however, the scheme was more deeply flawed since it was obvious that a reasonably competentdefence agent or counsel, considering how to approach the examination or cross-examination of a witness,
Page 4
would wish to know whether the witness had any previous convictions and, if so, their nature. Indeed it wasprecisely the kind of thing he would want to know.
What use, if any, the agent or counsel chose to make of the information was a matter for him and he mightwell not be able to decide until he actually had it.
But, at the very least, the information would help in assessing the strengths and weaknesses of the witness.
Therefore, information about the previous convictions of any witnesses to be led at the trial would be likely tobe of material assistance to the proper preparation or presentation of the accused's defence.
Under article 6.1 the accused's agents and counsel were accordingly entitled to have that informationdisclosed so that they could prepare his defence. Since in that way both sides would have access to thatinformation at trial, the accused's right to equality of arms would be respected. The observations to thecontrary effect in HM Advocate v Ashrif (1988 SLT 567) should not be followed.
Of course, in the instant case the defence agents did not ask for details of previous convictions but, rather,for information about any outstanding criminal charges that the victim faced. In particular, they wished toknow whether he had been indicted or was due to be indicted in the near future.
Again, for the same kinds of reasons, that was information which would be likely to be of material assistanceto the proper preparation or presentation of the accused's defence. So, in principle, in terms of article 6.1 theCrown should disclose it.
As a rule, there could be no good reason not to disclose that the witness had been charged. Similarly, insolemn cases, where the witness had been indicted, the defence agents could be told. Where no decisionhad yet been taken about indicting the witness, the defence agents should be told that.
Details of previous convictions were computerised and procurators-fiscal could readily obtain the necessaryinformation. Details of outstanding charges, especially in summary proceedings, might well be much moredifficult to discover, if, for example, a different office was dealing with the matter.
So, while the duty of those handling the Crown case would be to disclose any outstanding charges of whichthey knew, a general duty to search for outstanding charges would be unduly burdensome.
If Crown officials were asked about a particular witness, they need only take such steps to search for anyoutstanding charges as were appropriate, having regard to any indications given in the defence request.
Lord Hope delivered a concurring opinion. Lord Bingham, Baroness Hale and Lord Carswell agreed.
Solicitors: Drummond Miller, WS, Edinburgh, for Browns Glasgow; Crown Office, Edinburgh.
Copyright © Times Newspapers Ltd and Reed Elsevier (UK) Ltd 2005
Session Cases/2005/Holland v HM Advocate - 2005 SC (PC) 3
Page 5
2005 SC (PC) 3
Holland v HM Advocate
PRIVY COUNCIL
LORD BINGHAM OF CORNHILL, LORD HOPE OF CRAIGHEAD, LORD RODGER OF EARLSFERRY,BARONESS HALE OF RICHMOND, LORD CARSWELL
11 MAY 2005
Justiciary- Evidence- Dock identification- Witnesses failing to identify accused at identification parade-Whether dock identification self-incrimination- Whether fair trial- European Convention on Human Rights andFundamental Freedoms, Art 6
Justiciary- Procedure- Dock identification- Witnesses failing to identify accused at identification parade-Crown declining to disclose whether witnesses had outstanding criminal charges against them- Crown notdisclosing statement made by police to witness at identification parade- Judge s charge to jury- Whetherdock identification self-incrimination- Whether fair trial- European Convention on Human Rights andFundamental Freedoms, Art 6(1)
Alison Stirling
The appellant was charged, inter alia, with two charges of assault and robbery. Charge two related to anincident at a house, and charge three related to shop premises. The eye-witnesses in respect of charge twowere Mr Lynn, Miss Gilchrist and Mr Gilchrist, and the eye-witness in respect of charge three was MrSimpson. Mr Lynn, Miss Gilchrist and Mr Simpson failed to identify the appellant at an identification parade.Miss Gilchrist gave a precognition to the Crown in which she stated that the police had commented adverselyon her selection at the identification parade. That information was not disclosed to the appellant. Before thetrial the appellant sought information from the Crown regarding whether Mr Lynn had outstanding criminalcharges against him and, in particular, whether he had been indicted or was due to be indicted in the nearfuture. The Crown declined to disclose any such information to the appellant. At trial Miss Gilchrist and MrSimpson positively identified the appellant in the dock. The appellant was convicted. After the trial Mr Lynnpleaded guilty to a charge of dealing in heroin from the house in charge two. It transpired that both Mr Lynnand Miss Gilchrist had appeared on petition on drugs charges weeks before the incident in charge two. Theappellant appealed on the ground that the prosecution conducted in the name of the Lord Advocate hadinfringed his Art 6 right to a fair trial because (1) the Crown relied on evidence from witnesses who identifiedhim when he was sitting in the dock during his trial, and (2) the Crown had failed to disclose certain evidenceto him. The day beforethe appeal the Crown disclosed to the appellant Miss Gilchrist statement about thepolice officer remark to her at the identification parade. The appeal court considered the appeal in twostages. The appeal court rejected the ground relating to dock identification. A differently constituted appealcourt subsequently rejected the ground relating to the alleged failure to disclose information. The appealcourt refused leave to appeal to the Judicial Committee of the Privy Council. The Judicial Committee grantedspecial leave to appeal. The appellant argued that (1) dock identification evidence was so unfair andunreliable that it was incompatible with a fair trial under Art 6(1), and (2) the procedure of dock identificationcompelled the appellant to assist the Crown case against himself by exhibiting himself, contrary to his Art6(1) right against self-incrimination. He also argued that the failure to disclose the outstanding chargesagainst Mr Lynn and Miss Gilchrist, and the failure to disclose the remark after the identification paradeinfringed his rights under Art 6(1).
Held that: (1) there was no infringement of the appellant Art 6(1) right against self-incrimination (paras 1, 2,
Page 6
36, 37, 87, 88); (2) the proper approach was to consider whether, having regard to all the elements of theproceedings, including the way in which the identification evidence was obtained, the accused had a fair trialin terms of Art 6 and that issue would generally be for the appeal court to determine after considering all therelevant aspects of the trial (paras 1, 2, 5, 38, 39, 41, 87, 88); (3) the question whether the trial as a wholewas fair could only be decided by the same court considering all its relevant strengths and weaknesses,including any breaches of specific safeguards in Art 6, together (paras 1, 2, 43, 87, 88); (4) by leading andrelying on dock identification evidence where a witness failed to pick out an accused at an identificationparade, the prosecutor was introducing into the trial a heightened risk of false identification but suchevidence was not inadmissible per se (paras 1, 2, 5, 9, 38, 4749, 57, 87, 88); (5) the judge directions to thejury were an important safeguard in securing a fair trial, and accordingly judges should give an appropriateand authoritative direction of the dangers of dock identification where a witness previously failed to identify atan identification parade (paras 1, 2, 58, 87, 88); (6) information about the previous convictions of anywitnesses to be led at the trial would be likely to be of material assistance to the proper preparation orpresentation of the defence and under Art 6(1) the defence was accordingly entitled to have that informationdisclosed along with information about any outstanding criminal charges faced by the witnesses of which theCrown were aware, and the failure to provide information about the outstanding charges against Mr Lynn andMiss Gilchrist infringed the appellant Art 6(1) right (paras 1, 2, 7275, 87, 88); (7) the Crown had infringed theappellant Art 6(1) right by failing to disclose the remark which the police officer had made to Miss Gilchristafter the identification parade (paras 1, 2, 76, 87, 88); (8) the two Crown failures to disclose information wereproperly to be seen not as separate and isolated infringements of Art 6(1), but as infringements that eachhad a bearing on Miss Gilchrist dock identification, which was one of the central elements of the prosecutioncase, and about which the trial judge had given no proper warning, and taking all the relevant factorstogether, the failures to disclose information and the reliance on dock identifications were incompatible withthe appellant core Art 6 right since they resulted in an unfair trial (paras 1, 2, 84, 85, 87, 88); and appealallowed and case remitted to the appeal court to decide whether to grant the Crown authority to bring a newprosecution.
Observed (per Lord Hope of Craighead) where the Crown sets out to prove that a particular person is theperpetrator of a crime the identification of the accused as its perpetrator must not be left to implication: if thisrule is to be applied correctly the accused, in whose favour the rule has been devised as a matter of fairness,must accept that witnesses for the Crown may be asked during the trial to confirm that he is the person towhom they are referring in their evidence (paras 8, 9). HM Advocate v Ashrif 1988 SLT 567 commentedupon.
Cases referred to
Advocate (HM) v Ashrif 1988 SLT 567; 1988 SCCR 197; Barnes v Chief Constable, Durham [1997] V.2Cr App R 505; Beattie v Scott 1990 JC 320; 1991 SLT 110; 1990 SCCR 296; Bruce v HM Advocate 1936JC 93; 1936 SLT 577; Edwards v UK (1992) V.15 EHRR 417; Farmer v HM Advocate 1991 SCCR 986;Hogg v Clark 1959 JC 7; 1959 SLT 109; Holland v HM Advocate 2003 SLT 1119; 2003 SCCR 616;Holland v HM Advocate 2004 SLT 762; 2004 SCCR 452; Leggate v HM Advocate 1988 JC 127; 1988SLT 665; 1988 SCCR 391; McLeod v HM Advocate (No 2) 1998 JC 67; 1998 SLT 233; 1998 SCCR 77;Maan, Petr 2001 SLT 408; 2001 SCCR 172; Moorov v HM Advocate 1930 JC 68; 1930 SLT 596; Roweand Davis v UK (2000) V.30 EHRR 1; Schenk v Switzerland (1988) V.13 EHRR 242; Stewart v HMAdvocate 1980 SLT 245; Tani v Finland App No 20593/92, unreported; Teixeira de Castro v Portugal(1998) V.28 EHRR 101; Wilson v Brown 1947 JC 81; 1947 SLT 276; 1947 SLT (Notes) 21
James Holland was charged along with a co-accused on an indictment at the instance of the RightHonourable Colin David Boyd QC, Her Majesty Advocate, the libel of which set forth, inter alia, twocharges of assault and robbery. He pled not guilty and the case came to trial before Lord Menziesand a jury in the High Court of Justiciary at Glasgow. On 22 April 2002 he was convicted.
Page 7
The appellant appealed to the High Court of Justiciary, raising devolution issues in terms of para1(d) and (e) of sch 6 to the Scotland Act 1998 (cap 46) on the ground that the prosecutionconducted in the name of the Lord Advocate had infringed his Art 6 Convention rights because (1)the Crown relied on dock identifications, and (2) the Crown had failed to disclose certaininformation to the defence.
The appeal in respect of the dock identification was heard before the High Court of Justiciary,commencing on 8 July 2003. At advising on 21 August 2003, the court (Lord Justice-Clerk (Gill),Lord Osborne and Lord Abernethy) rejected that ground of appeal.
The appeal in respect of failure to disclose information was heard subsequently. At advising on 16June 2004, the court (Lord Justice-Clerk (Gill), Lord Penrose and Lord Hamilton) rejected thesecond ground of appeal.
On 24 June 2004 the High Court of Justiciary refused leave to appeal to the Judicial Committee ofthe Privy Council. On 28 July 2004 the Judicial Committee granted special leave to appeal.
The cause called before their Lordships in the Judicial Committee of the Privy Council, comprisingLord Bingham of Cornhill, Lord Hope of Craighead, Lord Rodger of Earlsferry, Baroness Hale ofRichmond and Lord Carswell, for a hearing on 7 and 8 March 2005, together with Sinclair v HMAdvocate 2005 SC (PC) 28. The court allowed the appeal for reasons delivered on 11 May 2005
Her Majesty Advocate, Respondent; Brailsford QC, Armstrong QC, Grahame; Crown Agent
11 May 2005
Lord Bingham of Cornhill
[1] I have had the opportunity of reading in draft the opinions of my noble and learned friends Lord Hope ofCraighead and Lord Rodger of Earlsferry. I am in complete agreement with them, and for the reasons thatthey give would make the orders which Lord Rodger proposes.
Lord Hope of Craighead
[2] I have had the advantage of reading in draft the opinion of my noble and learned friend Lord Rodger ofEarlsferry. For the reasons which he has given, with which I am in full agreement, I would allow the appealand make the order which he proposes. I should however like to add these brief observations on the use ofdock identification evidence.
[3] There is no doubt that Scotland is unique among the jurisdictions in the United Kingdom in thesignificance that it attaches to dock identification. But in the appeal court, as the Lord Justice-Clerk (Gill)records in his opinion (Holland v HM Advocate (2003), para 25), counsel for the appellant submitted thatScots law on this point compared unfavourably with all other comparable jurisdictions. The Advocate-deputesubmitted, on the other hand, that there were numerous other jurisdictions in which dock identifications wereallowed. The Lord Justice-Clerk said that counsel for the appellant had failed to satisfy him that Scots lawwas unique among all other comparable jurisdictions in this respect ((2003), para 31).
Page 8
[4] No attempt was made to deploy any comparative material on this issue during the hearing before theBoard. In a letter which was submitted after the hearing the Deputy Crown Agent said that theAdvocate-depute submissions to the appeal court were based on a document about the use of dockidentifications in other European jurisdictions which had been obtained from Eurojust, and their Lordshipshave been shown a copy of that document. As the appellant counsel have pointed out, however, it is difficultto make reliable comparisons as the practices of inquisitorial systems differ markedly from the Scottishsystem with regard to the gathering and adducing of evidence. The most that can be taken from the briefdescriptions contained in this document is that, while dock identifications are used in a number of Europeansystems, these systems vary in their approach to evidence of identification generally and in the weight that isto be attached to dock identifications in particular.
[5] I do not think that this material assists one way or the other in resolving the issue which lies at the heart ofthis case, which is whether dock identification evidence is incompatible with the Art 6(1) Convention right to afair trial. As the jurisprudence of the European Court to which Lord Rodger refers makes clear, it is not itspractice to address issues about the admissibility of evidence in the abstract or to deal with them as issues ofprinciple (see especially Schenk v Switzerland, para 46). So I would reject any suggestion that the use ofdock identification evidence in solemn proceedings must always be regarded as incompatible with theaccused Art 6(1) Convention right to a fair trial, even if Scots law is indeed unique in the importance which itattaches to such evidence. It all depends upon the facts of the case whether the use of this kind of evidencecould be said in the particular circumstances to have been unfair.
[6] Looking at the point more generally, I see no reason why Scots law should be diverted from its currentpractice in the use of dock identification evidence even if it were the case that all other comparablejurisdictions regard this as unacceptable. It is pre-eminently a matter for each jurisdiction to determine itsown rules of evidence. Particular care must of course be taken, where identification is likely to be a real issuein the case, to ensure that the way the evidence is obtained and presented is compatible with the accusedArt 6(1) Convention right to a fair trial. Guidance as to what is and what is not unfair is to be found in theSecond Report of the Thomson Committee in 1975. In para 134 of its report the committee recommendedthat it ought not to be competent for the Crown to ask a witness who had viewed an identification parade andhad failed to identify the accused on that occasion to identify the accused in court. But in para 133 thecommittee also recommended that it should be competent for the prosecutor to ask a witness who confirmsthat he did identify the accused at the parade whether the accused in the dock is that person. This showsthat the committee was content to accept that there was no fundamental objection to the practice of dockidentification as such.
[7] In Bruce v HM Advocate a number of witnesses who were asked to speak to certain facts in connectionwith the indictment spoke of the accused James Bruce. But they were not asked directly to identify in courtthe person to whom they were referring in their evidence. Lord Wark said that, as a matter of practice, theidentification of the accused by witnesses who are speaking to the facts should, in every case, be a matter ofcareful and express question on the part of the prosecutor (p 95; see also Wilson v Brown where witnessessaid that they knew the licence holder but were not asked to identify the accused as that person). In Stewartv HM Advocate (p 251) Lord Justice-General Emslie reaffirmed what he described as the general rule ofpractice, that where the Crown sets out to prove that a particular person is the perpetrator of a crime theidentification of the accused as its perpetrator must not be left to implication.
[8] If this rule is to be applied correctly, the accused in whose favour, after all, the rule has been devised as amatter of fairness must accept the fact that witnesses for the Crown may be asked from time to time duringthe trial to confirm that he is the person to whom they are referring in their evidence. This includes witnesseswho were responsible for the conduct of any identification parade as well as those in whose case, becausethey knew the accused, the holding of a parade was thought to be unnecessary. The general rule and thepractice of asking witnesses to confirm that the person in the dock, or which of them if more than one, is theperson to whom they are referring go hand in hand. It would not be possible to abandon the practice without
Page 9
departing from the rule too.
[9] The decision in this case demonstrates the limits beyond which the practice of dock identification cannotbe taken without risk to the accused Art 6(1) Convention right to a fair trial. But it should not be taken as asignal 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.
Lord Rodger of Earlsferry
[10] The appellant is James Holland who went to trial along with his co-accused, Stephen Foy, at the HighCourt at Glasgow in April 2002. On 22 April the appellant was convicted, inter alia, of two charges of assaultand 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 sec 19 of the Firearms Act 1968 (cap 27) (charge 4); andattempting to pervert the course of justice by giving the police a false name, also on 15 September 2001(charge 5).
[11] The appellant appealed against his conviction of charges 2 and 3 on the ground, inter alia, that theprosecution conducted in the name of the Lord Advocate had infringed his Art 6 Convention rights, first,because the Crown relied on evidence from witnesses who identified him when he was sitting in the dockduring 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 sch 6 to the Scotland Act 1998. Theappeal court considered the appeal in two stages. In the first (Holland v HM Advocate (2003)), the LordJustice-Clerk (Gill), Lord Osborne and Lord Abernethy rejected the ground relating to the dock identificationand in the second (Holland v HM Advocate (2004)), the Lord Justice-Clerk, Lord Penrose and Lord Hamiltonrejected the ground relating to the alleged failure to disclose the information. In the result they refused theappeal against conviction. On 24 June 2004 the appeal court refused leave to appeal to the Board on thedevolution issues, but on 28 July 2004 the Board granted special leave to appeal.
[12] To set the scene, it is necessary to explain the circumstances in a little more detail. I gratefully adopt thetrial judge narrative of the events giving rise to the assault and robbery charges, as they emerged inevidence at the trial. Crimes
[13] The complainers in charge 2, a Miss Gilchrist and a Mr Lynn, lived together and were both disabled. Atabout 9 pm on 4 September 2001 they were at home, expecting Miss Gilchrist son, Jamie, to return fromcoaching football for younger children. There was a knock at the front door and, when Miss Gilchrist openedit, she saw three men. One of them had a gun and another had a knife. She screamed and they grabbed herby the hair and pushed her back into the flat. She was dragged to the living room where her hair was againgrabbed and she was forced to her knees, while her assailant put his hand over her nose and mouth. Sheexplained that she suffered from asthma and lung disease and that he would kill her, but her assailantcontinued to keep his hand over her nose and mouth. He was wearing latex gloves. One of the otherassailants, whom Miss Gilchrist identified as the appellant, was also wearing latex gloves and held a gun atMr Lynn head. The men tied Miss Gilchrist hands and wrists tightly in front of her body. They also tied MrLynn hands behind his back. The men demanded money and jewellery, pulling a ring from Miss Gilchristfinger, grabbing and pulling a chain from around her neck and taking one from around Mr Lynn neck. Theywere unable to remove all the rings on Miss Gilchrist fingers and appeared to be preparing to use a kitchenknife to chop off her fingers when Jamie Gilchrist returned home and knocked on the living room window.This caused all three men to run out of the house taking the jewellery with them.
Page 10
[14] The incident in charge 3 occurred some five days later. The complainer, Mr Simpson, was the managerof the RS McColl shop at Rankin Gate, Carluke. Shortly after 8.00am on 9 September he arrived to open theshop. When he had opened some of the shutters at the front, Mr Simpson noticed two men loitering outside.He thought that they were customers waiting for the shop to open and he indicated that they should wait forfive or six minutes. Mr Simpson then went to the back area of the shop. While he was there, the two mencame running through the back door. They were wearing latex gloves. One was carrying a gun. Putting hisarm round Mr Simpson, he put the gun to his left temple. The men forced Mr Simpson upstairs into thecigarette room and pushed him to his knees. He was terrified. The men ordered him to open the safe and hedid so. They then began pulling change from the bottom part of the safe. The men put cigarettes, cash andtelephone cards into black bin bags. They then forced Mr Simpson to lie in front of the safe, held the gun tothe back of his head and obtained the key to the cigarette room. Having locked Mr Simpson in, the men ranoff.
[15] In the witness box Mr Simpson identified the appellant and his co-accused, Mr Foy, as the two men whohad robbed him. After that evidence had been led, Mr Foy pleaded guilty to charge 3, his pleas of not guiltyto two other charges on the indictment being accepted by the Advocate-depute. Pre-trial procedures
[16] Following the incident when he had the air pistol in Tollcross Road on 15 September 2001, the appellantwas first detained and then charged with offences relating to incidents on that date. He appeared on petitionin the sheriff court at Glasgow in that connexion on 17 September 2001 when he was committed for furtherexamination. He appeared again on a fresh, slightly amended, petition in relation to those matters on 21September when he was fully committed. On the same day, along with Mr Foy, the appellant appeared on adifferent petition in the same court. This petition contained charges relating to the incidents which eventuallyformed the subject-matter of charges 2 and 3 on the indictment. In the case of the assault and robbery onMiss Gilchrist and Mr Lynn, the petition was based on Miss Gilchrist having identified the appellant frompolice photographs that were shown to her. Similarly, in the case involving Mr Simpson, he had given adescription of one of his assailants and had identified the appellant from police photographs. On 21September the appellant and Mr Foy were committed for further examination in respect of these matters andbail was refused.
[17] The procurator fiscal directed that an identification parade should be held in respect of both accused.This duly took place on 26 September. Mr Lynn, who has poor sight, attended, as did Miss Gilchrist, JamieGilchrist and Mr Simpson. Mr Lynn could not identify anyone. Jamie Gilchrist identified the appellant. MissGilchrist and Mr Simpson each picked out two (different) stand-ins. Despite this setback for the Crown, on 28September 2001 the appellant and Mr Foy were fully committed in respect of both robberies.
[18] The Crown proceeded to precognosce the witnesses. Miss Gilchrist said to the precognoscer that, afterthe identification parade, a policeman had told her that she had not done too well. In due course, theprecognition and draft charges were submitted to Crown counsel. In the accompanying summary, theprocurator fiscal drew attention to the potential problems as to the sufficiency of evidence for the two chargesof assault and robbery. About the charge concerning Mr Lynn and Miss Gilchrist the procurator fiscal saidthis:
There were three perpetrators involved in this incident. The witness Allison Gilchrist identified the accusedHolland from photographs as being one of the three robbers (the one wearing the grey fleece and carryingthe knife). She is confident (or, at least, expressed confidence at precognition) that she would be able toidentify the one with the grey fleece again if she were to see him in the flesh. Unfortunately, she failed to pickout the accused Holland at the identification parade held on 26 September 2001. She picked out twostand-ins at the parade. She has stated at precognition that she was put off by the fact that members of theparade were laughing during the parade and she now thinks that she got things wrong. It is rather concerningthat, at precognition, she stated that the police had told her after the parade that she didnt do too well.Clearly the police have no business to be saying such things to witnesses who have just viewed an
Page 11
identification parade (and no doubt, if I made enquiries, I would be met with complete police denials thatanything of the sort was said to the witness). On the basis of the precognition Crown counsel instructed thatthe appellant and Mr Foy should be indicted for trial in the High Court. In due course they were indicted fortrial on 11 February 2002 but, in the event, the trial did not take place until April. When the indictment wasserved, the Crown did not tell the appellant agents about what the police officer had said to Miss Gilchristafter the identification parade.
[19] At some stage in the course of preparing for the trial, the appellant told his agents that there was arumour in prison circles that Mr Lynn, who was on the Crown witness list, had outstanding drugs chargesagainst him. So, on 29 January 2002, on the instructions of senior counsel, the appellant agents wrote to theCrown Office to enquire whether Mr Lynn had outstanding criminal charges against him and, in particular,whether he had been indicted or was due to be indicted in the near future. On 7 February the Crown Officereplied, asking the appellant agents to provide them with the basis on which the request was being madeand its relevance to the appellant defence. On 22 February the appellant agents replied, saying that theirenquiries suggested that Mr Lynn might have been the target of a robbery because of criminal activity on hispart and associations he had made in that regard. They further believed that he had an association with theappellant co-accused (Mr Foy). They believed that evidence of Mr Lynn conduct and character might castdoubt on their client involvement in the matters in hand. Finally, on 6 March the Crown Office official repliedthat he was not in a position to disclose any such information to the appellant agents.
[20] Faced with this refusal, the appellant agents and counsel did not seek an order from the High Court forthe disclosure of the information. Evidence at trial
[21] When the trial began and the Advocate-depute was about to call Miss Gilchrist to give evidence, seniorcounsel for the appellant objected on the ground that the Advocate-depute intended to ask questions thatwere designed to see whether Miss Gilchrist would identify the appellant, sitting in the dock, as one of theperpetrators of the assault and robbery in charge 2. The same applied to Mr Simpson in charge 3. Seniorcounsel lodged a devolution minute to the effect that the act of the prosecutor in leading and relying on suchevidence was incompatible with the appellant Art 6 Convention rights and so was ultra vires in terms of sec57(2) of the Scotland Act 1998. The trial judge repelled senior counsel objection and the trial proceeded.
[22] Miss Gilchrist gave evidence in which she identified the appellant as the man who had had the gunduring the incident. She also identified Mr Foy as one of those involved in the incident, although he had notbeen charged with that offence. Towards the end of her examination in chief the Advocate-depute asked herabout picking out the two stand-ins at the identification parade. Miss Gilchrist said:
Well, I wasnt too sure because I was in a state and there was people laughing on the parade and the policewere telling them to be quiet. About three times the police told them to be quiet. They were laughing and Iam quite self-conscious and I thought they were laughing at me, so I was really I couldnt do it. I really justpicked out who I thought it was but I wasnt absolutely positive at the time. I just picked out who looked quitelike them, but I wasnt too sure. She went on to say that the man she had picked out in court was definitely inmy house. Definitely. Senior counsel then cross-examined Miss Gilchrist to the effect that she had not saidanything at the time about being frightened or scared. Miss Gilchrist also said that her identification wasmore likely to be accurate in court, when she saw the men in front of her face, than at the parade 22 daysafter the event. Senior counsel pointed out to Miss Gilchrist that in court she had identified Mr Foy who wasnot charged with the offence. She replied, Well, I dont know who has been charged with it. I am just tellingyou who was in my house. She rejected any suggestion that she might have been mistaken. Inre-examination she confirmed that the man with the spectacles in court (the appellant) was definitely the onewith the gun.
[23] When he gave evidence, Jamie Gilchrist, who had already identified the appellant at the identification
Page 12
parade, again identified him in the dock as being one of the three men who ran out of the building as hearrived. In cross-examination he said that it was possible that he could be mistaken but that the appellantlooked very much like the man. In re-examination he said that he was sure of his identification of theappellant.
[24] Because of his defective sight, Mr Lynn was not asked if he could identify any of the robbers.
[25] There is no transcript of the evidence of Mr Simpson but it is not disputed that he identified the appellantand Mr Foy as the two robbers. He was asked about the identification parade and said that the appellant wasthe man whom he had picked out on that occasion. It was put to him that he was wrong about that. He alsosaid that no-one had told him at the parade that he had [not?] picked the right man.
[26] None of the officers who conducted the identification parade was called as a witness.
[27] In seeking a conviction of the appellant on charge 2, the Advocate-depute relied on the dockidentification by Miss Gilchrist and Jamie Gilchrist of the appellant as one of the participants. TheAdvocate-depute also relied on the evidence, led in relation to charge 4, that on 15 September 2001, some11 days after the assault and robbery in charge 2, the appellant was in possession of an air pistol which MissGilchrist, Mr Lynn and Jamie Gilchrist all said was similar to the weapon used in that assault and robbery.
[28] So far as charge 3 was concerned, the Crown relied, of course, on the evidence of Mr Simpsonidentifying the appellant as one of the perpetrators. The Advocate-depute also relied on Mr Simpsonevidence that the air pistol found in the possession of the appellant on 15 September, some six days afterthe assault and robbery on Mr Simpson, was similar to the weapon which he said had been used. Forcorroboration of Mr Simpson evidence, the Crown invoked the principle in Moorov v HM Advocate. Here theincidents in charges 2 and 3 were both assaults and robberies; they occurred within a few days of oneanother; the places where they occurred were in the same general geographical area; and there werestriking similarities (the holding of the gun to the victim left temple, forcing the victim to the floor, the use oflatex gloves) between the two incidents. In these circumstances, if the jury accepted the evidence of MrSimpson as truthful and reliable, they could find corroboration of it in evidence which they accepted,indicating that the appellant had been one of the perpetrators of the assault and robbery in charge 2. Equally,of course, Mr Simpson evidence was potentially available as corroboration of the evidence of Miss Gilchristand Jamie Gilchrist on charge 2. Judge charge to the jury
[29] In his charge to the jury the judge began with the usual general directions and then gave directions onthe legal meaning of the charges which they had to consider. He continued:
Now, having explained to you the legal meaning of each of the charges which James Holland faces, let megive you some words of warning about the evidence of identification of the accused, particularly in relation tocharges 2 and 3. This is a warning which is to a large extent not particular to the circumstances of this case.It is a warning which I give in all trials which involve identification evidence. In giving it I do not mean tosuggest to you that you should believe or disbelieve any particular witnesses: that is a matter for you. What Iam inviting you to do is to take particular care in assessing the identification evidence.
The critical issue, ladies and gentlemen, in this trial in relation to charges 2 and 3 in particular is the quality ofthe identification evidence. That is something you must decide on.
Now, the Crown asks you to accept the evidence of Alison Gilchrist, Jamie Gilchrist and Stuart Simpson as
Page 13
credible and reliable evidence pointing to the accused as the perpetrator of the crimes in charges 2 and 3.And the defence invites you not to accept their identifications as reliable, and to conclude that this is a caseof mistaken identity.
It for you to decide if that evidence sufficiently links the accused with the perpetration of the crimes incharges 2 and 3. You would have to be satisfied beyond reasonable doubt that the accused has beenidentified as the perpetrator of the crime in charge 2 and as the perpetrator of the crime as charged in charge3. And the evidence for that would have to come from two independent sources, both credible and reliable. Ifyou were not satisfied, the Crown would have failed to prove one of the essential facts by corroboratedevidence, and you would have to acquit the accused of whichever charge you were considering.
Errors can occur in identification. Sometimes we think we have recognised somebody we have seen before;sometimes we are right, sometimes we are wrong. Some people are better at it than others. Mistakes aboutidentification have been made in court cases in the past; but it doesnt follow from that that any mistake hasbeen made here. It for you to assess the soundness of the eyewitness identification. But you will need totake special care in assessing that evidence. You may wish to take account and consider several factors.First, what opportunity did the witness have to observe the person concerned? Was it a fleeting glimpse?Was there time for reliable observations to be made? And was the person clearly visible? What was the stateof the lighting? Was the person previously known to the witness, or was he a stranger? Was the personsomeone with some easily distinguishable feature or not? How positive have the identifications been? Andhave the memories of the witnesses been affected in any way?
To regard the identification evidence as acceptable, it not necessary that you should conclude that thewitness in question has made a 100 per cent, absolutely certain identification; but you need to be satisfiedthat you can rely on the substance of what the witness said.
The task of assessment is not an easy one: it is certainly one which has to be approached with great careand circumspection. Up to this point, the trial judge was giving the standard directions on identificationsuggested in the Judicial Handbook and ending with a sentence taken from Lord Cullen charge to the jury inFarmer v HM Advocate (p 987DE).
[30] The judge then went on to deal with the evidence given by the eyewitnesses. He reminded the jury ofMiss Gilchrist dock identification and also reminded them that, at the identification parade, she had notidentified the appellant but had identified two stand-ins. He reminded the jury of the explanation which shehad given of that. He went on:
But in assessing that, ladies and gentlemen, remember that in her evidence she denied saying to the policethat she would know the one with the grey fleece, but that she couldnt identify the other; and you have heardthe evidence of PC Angus McDougall, who spoke to the fact that he had taken a statement from her that day,and he read out to you what she had said; although remember also that that statement was given within onehour of the incident, and that could go either way: that is a matter for you. It might mean that her recollectionwas clearer, or because she was very upset at the time it might be that you wouldnt be swayed by what shesaid at the time. It a matter for you. The trial judge then went over Jamie Gilchrist evidence, before saying:
So, ladies and gentlemen, you may think that you have two witnesses giving positive identification of theaccused James Holland in court. That is a matter for you. What I am urging you and directing you to do is totake particular care in assessing and weighing up this material. As I said, the task of assessment is not aneasy one, and it is certainly one which has to be approached with great care and circumspection.
Page 14
[31] When he came to charge 3, the trial judge said:
Turning to charge 3, ladies and gentlemen, you have got the evidence on that charge of identification, whichcame from Stuart Simpson, the store manager. According to my recollection and I repeat, it yours that countshe identified Mr Holland in court as one of the two men. And he thought that he had picked him out at theidentification parade. In fact and it not, I think, disputed by the Crown he did not pick Mr Holland out in theidentification parade. And he accepted in cross-examination that he could possibly be mistaken, although hesaid in re-examination, as I recollect him, that he was sure of his identification of the two men in court today.
Now, all the words of caution that I gave you about identification evidence in relation to charge 2 also applyto this evidence in relation to charge 3. I do not mean to suggest that Mr Simpson is mistaken in thisidentification of the accused in court, nor that he is correct in it: that is a matter for you to decide. You mustremember all the points relied on by Miss Scott in her speech to you, including the general point that what isknown as a dock identification, that is pointing to an accused in court, is in her submission not fair andtherefore not to be relied upon. All I require of you is to approach all the evidence of identification with greatcare and circumspection.
[32] In the light of the judge charge, by a majority, the jury found the appellant guilty of charge 2 and,unanimously, found him guilty of charges 3, 4 and 5. Post-trial developments
[33] On 21 June 2002 Mr Lynn and Miss Gilchrist appeared at the High Court at Glasgow on charges ofdealing in heroin at 11 Western Avenue, Rutherglen, between 19 January and 1 June 2001. Mr Lynnpleaded guilty to a restricted charge covering the period from 19 April to 1 June 2001. The court was told thathe had more than £3,000 hidden in a safe in the house, that he had £1,096 in his trouser pocket and sums of£600 and £188 hidden behind an electric cable in the road. He had been found with 10 bags of heroin andwas later caught selling a bag of heroin to an addict. The Crown accepted Miss Gilchrist plea of not guilty.Since then the appellant agents have established that Mr Lynn and Miss Gilchrist appeared on petition onthese charges on 12 July 2001, some weeks before the incident in charge 2.
[34] On 7 July 2003, the day before the first hearing in the appeal court, the Advocate-depute who was toconduct the appeal told senior counsel for the appellant that he had come across certain information amongthe Crown papers regarding the identification parade in which Miss Gilchrist took part. He gave her aphotocopy of part of the summary attached to the Crown precognition. The passage about the police officerremark quoted in para 18 was taken from this photocopy. Dock identification evidence
[35] Before the Board, senior counsel challenge to the dock identification evidence was put in two ways: first,that such evidence was so unfair and unreliable that it was incompatible with a fair trial under Art 6(1);secondly, that the procedure of dock identification compelled the petitioner to assist the Crown case againsthim by exhibiting himself, contrary to his Art 6(1) Convention right against self-incrimination. These aresweeping submissions and, as the Lord Justice-Clerk pointed out (Holland v HM Advocate (2003), para 30),if they were accepted, they would mean that dock identification was always unfair to the accused. Rightagainst self-incrimination
[36] I begin with the second of these submissions, which in my view is devoid of merit. Section 92(1) of theCriminal Procedure (Scotland) Act 1995 (cap 46) provides that, in general, no part of a trial shall take placeoutwith the presence of the accused. This requirement that the accused should usually be presentthroughout his trial is designed to promote his interests by ensuring that he can see and hear all theevidence against him and observe how the proceedings are conducted. It also gives him an opportunity toalert his solicitor or counsel to any matters that may be relevant to his defence. Section 92(1) thereforeconfers an important right on the accused one that is not so fully guaranteed by many other systems. Clearly,
Page 15
however, by abusing sec 92(1) and refusing to be present, the accused might prevent his trial from goingahead. So, where necessary, appropriate steps can be taken to ensure that he comes to court and remainsin court during the trial. That does nothing to alter the fact that sec 92(1) is conceived in the interest of theaccused. The requirement for him to be present involves no conceivable breach of Art 6(1) of theConvention: rather, it is designed to promote the values protected by that Article.
[37] Of course, one side-effect of the accused right to be present when witnesses give their evidence is thatthey can see him in the dock. Any potential dangers in witnesses identifying the accused sitting in the dockas the perpetrator of the crime do not arise, however, out of the legal requirement for him to be present incourt: they would apply equally if he were present voluntarily. Notably, the quality of the witnessesidentification of the accused is not affected one way or the other by the fact that he is compelled to bepresent. In these circumstances, given the purpose of sec 92(1), there is no basis for saying that the fact thata witness may identify the accused when he is present in court means that his Art 6(1) Convention rightagainst self-incrimination has been infringed. It might well be very different if, when in the dock, the accusedcould be required to assist the prosecution witnesses by, say, standing up, or turning round, or showing partof his body. But nothing like that is permitted. In Beattie v Scott (p 301D) Lord Justice-General Hopeemphatically declared that, when a case comes to trial, the interests of the accused person demand that theCrown should prove its case against him without any assistance whatever on his part. In the present case,there was, of course, no question of the appellant being asked to do anything to assist the Crown in provingtheir case against him. In these circumstances there was no infringement of his Art 6(1) right againstself-incrimination. Evidence and a fair trial under Article 6(1)
[38] I turn now to senior counsel principal submission on this aspect of the appeal. In the appellant writtencase and, it appears, in the appeal court this submission was formulated very broadly to the effect thatevidence derived from the witness identifying the accused in the dock was, by its very nature, so unfair as tobe incompatible with his Art 6(1) rights in all cases. That broad submission cannot be accepted.
[39] It is trite that the Convention does not concern itself with the law of evidence as such. In particular, itdoes not lay down that certain forms of evidence should be regarded as inadmissible. Such questions are leftto the national legal systems. What Art 6 does is guarantee a fair trial and so, when the introduction of someform of evidence is said to have infringed the accused Art 6 rights, the question always is whether admittingthe evidence has resulted in the accused not having a fair trial in the circumstances of the particular case.So, for instance, in Teixeira de Castro v Portugal (para 34) the European Court of Human Rights observed:
The Court reiterates that the admissibility of evidence is primarily a matter for regulation by national law andas a general rule it is for the national courts to assess the evidence before them. The Court task under theConvention is not to give a ruling as to whether statements of witnesses were properly admitted as evidence,but rather to ascertain whether the proceedings as a whole, including the way in which evidence was taken,were fair. Statements to a similar effect are to be found in many earlier authorities, including Edwards v UK(para 34). In Schenk v Switzerland (para 46), where the applicant complained about the use of an unlawfulrecording of a telephone conversation, the Court again noted that Art 6 simply guarantees the right to a fairtrial and that the admissibility of evidence was primarily a matter for regulation under national law. The Courtadded:
The Court therefore cannot exclude as a matter of principle and in the abstract that unlawfully obtainedevidence of the present kind may be admissible. It has only to ascertain whether Mr Schenk trial as a wholewas fair. The Court went on to note that the rights of the defence were respected: the applicant had theopportunity of challenging the authenticity of the recording and of opposing its use. The defence had beenable to secure an investigation of the background of the relevant witness and could have examined him incourt. In addition, the Court attached weight to the fact that the recording was not the only evidence on whichthe applicant conviction was based and that the domestic court had expressly said that it had relied onevidence, other than the recording, which pointed to the applicant guilt.
Page 16
[40] In Tani v Finland the applicant had been convicted of murder. He complained to the EuropeanCommission of Human Rights that one of the prosecution witnesses had identified him when he was broughtinto a room where the witness was being questioned. For identification purposes he ought to have beenplaced in a room along with others of similar appearance. The Commission reminded itself that the task ofthe Convention organs when considering a complaint under Art 6 was to ascertain whether the proceedings,considered as a whole, including the way in which evidence was taken and submitted, were fair. TheCommission noted that the applicant conviction was based on an assessment of a significant amount ofcorroborative circumstantial evidence; that the identification in question had not played any decisive role inthe applicant conviction; that the applicant was assisted by counsel throughout the proceedings and that hehad been able to question the witness in the proceedings before the domestic court. Having assessed allelements of the domestic proceedings, the Commission rejected the application as manifestly ill-founded.
[41] These authorities show that the proper approach is to consider whether, having regard to all theelements of the proceedings, including the way in which the identification evidence was obtained, theaccused had a fair trial in terms of Art 6. While one cannot 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 Art 6 will not raise any issue of admissibility. So the trial judge was right toreject the objection to Miss Gilchrist evidence in this case. Similarly, while there might occasionally come atime in the course of a trial when the judge could conclude that the dock identification evidence had madethe trial unfair, in most cases it will be impossible to reach a view on that matter until the judge has given hisdirections to the jury and they have returned their verdict. In effect, therefore, the issue will generally be forthe appeal court to determine after considering all the relevant aspects of the trial.
[42] Two factors which will weigh in favour of the conclusion that an accused did indeed have a fair trial willbe the fact that he was legally represented and that the rights of the defence were respected, with theaccused representative being able to challenge the admissibility of the evidence, to cross-examine thewitness and then to address the jury on the weaknesses of the evidence. It will also be important to considerany directions which the judge gave to the jury about the identification evidence. The significance of thecontested evidence in the context of the prosecution case as a whole will also be relevant. In particular, wasit one of the principal planks in the case against the accused or was there a substantial body of otherevidence pointing to his guilt? Since decisions are thus liable to depend very much on the circumstances ofthe individual case, they are likely to afford only limited guidance in subsequent cases.
[43] In the present case the appeal court found it convenient to split the hearing of the appeal into two parts,with the alleged breaches relating to the identification evidence being considered by the Lord Justice-Clerkand two judges in the first part and those relating to non-disclosure being considered by the LordJustice-Clerk and two different judges in the second. It is clear from the judgments that the court would haverejected both grounds of appeal, irrespective of whether they had considered the points separately ortogether. But the ultimate question is whether the trial as a whole was fair and that question can only bedecided by the same court considering all its relevant strengths and weaknesses, including any breaches ofspecific safeguards in Art 6, together. It follows that, although the issues relating to identification andnon-disclosure were argued in sequence at the hearing before the Board, in deciding whether the appellantcan be said to have had a fair trial, the Board must consider all the relevant elements together.
[44] As I have explained, in this case the police did not hold an identification parade at the time when theappellant and Mr Foy were charged. It was only after they had appeared on petition that the procurator fiscalinstructed that a parade should be held. The Advocate-depute was unable to explain why no identificationparade had been held initially, but he repudiated any suggestion that the police were now holding fewerparades than in the past. Moreover, he told us that Scottish police forces are introducing the VIPERidentification system, which is based on a library of moving computer images and which does away with theneed to find suitable stand-ins for an identification parade. It is also less stressful for witnesses. In future,there should therefore be even less reason than hitherto for not having identifications checked at the earliest
Page 17
possible stage.
[45] In the present case the Board are concerned with a trial conducted under solemn procedure. In theirSecond Report (para 46.12) the committee appointed by the Secretary of State for Scotland and the LordAdvocate to examine trial and pre-trial procedures (the Thomson Committee) discussed identificationevidence and concluded, albeit reluctantly, that a distinction should indeed be drawn between solemn andsummary proceedings. That distinction has also been recognised in England where, despite the firmly-rootedhostility to dock identifications in the Crown Court, for practical reasons they are permitted in driving cases inthe magistrates court (Barnes v Chief Constable, Durham, pp 512, 513). So in this case the Board areconsidering the position in solemn proceedings only.
[46] Moreover, the Board are concerned only with the issues in a case where, as here, identification is a liveissue at the trial and the Crown witnesses who identify the accused in court have previously failed to pick himout at an identification parade. Therefore the appeal does not touch the use of dock identification in othercases, eg where the witness knows the accused or identification is not in dispute. Nor, of course, does it castany doubt on the requirement that a Crown witness identification of the accused should not, generally, be leftto implication (Bruce v HM Advocate; Stewart v HM Advocate, p 251). Lastly, this case is not concerned withquestioning by defence counsel, especially in cases involving several accused, which is designed to showthat counsel client was not the person to whom the witness was referring. Identification evidence and Article6
[47] In the hearing before the Board the Advocate-depute, Mr Armstrong QC, who dealt with this aspect ofthe appeal, accepted that identification parades offer safeguards which are not available when the witness isasked to identify the accused in the dock at his trial. An identification parade is usually held much nearer thetime of the offence when the witness recollection is fresher. Moreover, placing the accused among a numberof stand-ins of generally similar appearance provides a check on the accuracy of the witness identification byreducing the risk that the witness is simply picking out someone who resembles the perpetrator. Similarly, theAdvocate-depute did not gainsay the positive disadvantages of an identification carried out when theaccused is sitting in the dock between security guards: the implication that the prosecution is asserting thathe is the perpetrator is plain for all to see. When a witness is invited to identify the perpetrator in court, theremust be a considerable risk that his evidence will be influenced by seeing the accused sitting in the dock inthis way. So a dock identification can be criticised in two complementary respects: not only does it lack thesafeguards that are offered by an identification parade, but the accused position in the dock positivelyincreases the risk of a wrong identification.
[48] These criticisms are at their most compelling in a case like the present where a witness who has failedto pick out the accused at an identification parade is invited to try to identify him in court. The prosecutor isthen seeking to use evidence obtained in circumstances which carry a heightened risk of a falseidentification, when he knows that the witness was unable to identify under the controlled conditions of anidentification parade. By leading and relying on such evidence, the prosecutor is introducing into the trial thisparticular element of risk.
[49] The potential dangers of a dock identification in these circumstances derive from aspects of humanpsychology which are the same in similar societies. In this respect witnesses and juries in a Scottish courtare no different from witnesses and juries in, say, an English or Canadian court. So, when theAdvocate-depute invites the witness to identify the accused in such a case, the Crown are deliberatelyintroducing an adminicle of evidence which certain other systems generally exclude precisely because of theheightened risk that the identification will be mistaken. The issue in any given case is whether, by doing so,the Crown have rendered the accused trial unfair in terms of Art 6.
[50] Not surprisingly, the dangers of dock identification have been as obvious to Scottish authors and official
Page 18
bodies as to those in other parts of the world. Indeed, as long ago as 1833, in his Practice of the CriminalLaw of Scotland (p 628), Alison recognised that a dock identification of the accused was open to theobservation that his being in that situation helped them to believe he was the same.
[51] In 1975 the Thomson Committee recorded that many of those who gave evidence to them had beenvery critical of the procedure for identifying the accused in court (para 46.03). Much of the criticism wasdirected at the practice of the accused being put into such a prominent position, in the dock between twouniformed policemen. Most of the committee witnesses thought that the procedure could result in prejudiceto the accused. The committee accepted this criticism and agreed that (para 46.09) in many cases such anarrangement may cast doubts upon the fairness and accuracy of the identification. The committeerecommended that, where identification was in issue, the Crown should be required to arrange for anidentification parade to be held for each witness who would be called on to identify the accused (para 46.11).They further recommended that it should not be competent for the Crown at the trial to lead evidence ofidentification other than evidence of identification at such a parade. The committee expressly recommendedthat (para 46.13) in any case in which a witness has viewed an identification parade and has failed to identifythe accused, it shall not be competent for the Crown to ask that witness to identify the accused in court.
[52] These recommendations were not adopted, but for present purposes the importance of the report lies inthe committee recognition of the risks in a dock identification in such cases risks which the committee clearlyconsidered to be so significant as to justify a blanket ban on the use of such evidence.
[53] In 1976 the report of the Departmental Committee on Evidence of Identification in Criminal Caseschaired by Lord Devlin was published. It recommended (chap 8.7) that the discretion of the trial judge toadmit dock identification evidence should be limited and regulated by statute. In particular identification at anidentification parade or in some similar fashion should generally be a precondition to identification in courtand, where a dock identification was permitted, the judge should be required by statute to warn the juryabout the weakness of such evidence in a situation in which there has to be a confrontation and not a pickingout.
[54] Following the publication of that report, the Secretary of State and Lord Advocate set up a working partychaired by Sheriff Principal Bryden to examine its implications for Scottish criminal procedure. In their reportthe working party considered the question of dock identification and came down against recommending anyreform along the lines proposed by the Thomson Committee.
[55] The working party began by acknowledging that (para 3.02): The fallibility of eyewitness evidence onidentification is now generally accepted. This perception of the nature of eyewitness identification evidenceforms the backdrop against which they considered the particular issue of dock identification evidence. Havingsummarised the observations which they had received, the working party said this (para 5.12):
We found this question particularly difficult to resolve. On the one hand, we recognised that, in the interestsof fairness to the accused, dock identificationswere undesirable because of the conspicuous position of theperson to be identified. There is clearly a danger that a person might make an identification in court because,simply by seeing him in the dock, he had become convinced that he was the offender. Because of thisconsideration, we were in sympathy with the Devlin Committee suggestion that the witness should previouslyhave had to take the initiative in picking out the accused in a situation where he was not conspicuous. Theworking party then marshalled the counter-arguments and eventually expressed their conclusion in this way(para 5.16):
Taking all this into account, we have concluded that, although dock identification can be criticised, it wouldbe more undesirable to make it always conditional upon prior identification at a parade. We see it as vital to
Page 19
preserve the importance of identification on oath; and the recommendation that identification at a parade bemade a condition precedent of dock identification seems to us to erode this. We feel that it is of paramountimportance to protect the witness right to change his mind at the time of the trial, and the jury right to havesuch evidence placed before it: cross-examination can bring out the value (or lack of it) to be attached tosuch evidence in the particular circumstances. We were reluctant to differ from the recommendations of theThomson Committee in this respect, but in the course of our detailed consideration of this question we cameto the conclusion that the implementation of the Thomson Committee recommendation would require inpractice numerous exceptions to be made, and we found it impossible to formulate a recommendation whichwould be flexible enough for the purpose. We therefore decided against proscribing dock identificationswhere these have not been preceded by an identification outwith the court. Where an identification paradehas been held at which a witness identified the accused, and the basis of the identification has been notedand can be established in court, then a leading question should be permitted, such as Is that the man youidentified at the identification parade on [date] as the man who on [24 April] [snatched your handbag] in [theCanongate, Edinburgh]? It could be left to the cross-examiner to raise the question of mistaken identify andgive the witness the opportunity of correcting any mistake. Again, what matters for present purposes is theclear recognition by the working party of the danger associated with dock identifications. This is over andabove the fallibility of eyewitness identification evidence in general.
[56] I would understand the Lord Justice-Clerk to be acknowledging this same increased risk when he said(Holland v HM Advocate (2003), para 39), that dock identification can in some cases be a less satisfactoryform of identification than identification made at an identification parade, or on some other occasion shortlyafter the relevant event. Having regard to the safeguards afforded by the laws of evidence and procedure,the Lord Justice-Clerk concluded that dock identifications could not be said to be unfair per se and shouldnot be inadmissible (para 33).
[57] I respectfully agree that, except perhaps in an extreme case, there is no basis, either in domestic law orin the Convention, for regarding such evidence as inadmissible per se. The safeguards to which the LordJustice-Clerk draws attention the requirement for corroboration, the opportunity for counsel to contrast thefailure to identify at the parade with the identification in the dock andto comment accordingly are, of course,important. Their mere existence cannot be used, however, to justify the abstract proposition that in all casesin Scots law an accused who has been convicted on the basis of a dock identification has necessarily had afair trial. In Scots law, as in any other system, the actual circumstances of any given trial have to beconsidered before one can say that it was fair. In some cases, for instance, the dock identification evidenceof one witness will have been confirmed by the evidence of witnesses who knew the accused. In othercases, there may be DNA evidence confirming the identification. In others again, however, the availablecorroboration may consist in facts and circumstances which are open to more than one interpretation, or elseit may take the form of a dock identification by another witness who failed to identify at the identificationparade. Similarly, in most trials counsel will have duly cross-examined the witness about the purportedidentification, but in some the cross-examination may have been perfunctory. In some trials defence counselmay have made a powerful submission to the jury on the point; in others counsel may have made little, oreven nothing, of it. The effectiveness of these and other potential safeguards in securing a fair trial dependson what actually happened in the individual case.
[58] One potentially important safeguard lies in the judge directions to the jury. Indeed the Lord Justice-Clerksaw it as the most important (Holland v HM Advocate (2003), para 37). It is necessary, however, todistinguish between directions which a judge gives on the approach to be adopted in relation to eyewitnessidentification evidence in general and directions on the dangers of dock identification evidence, in particular.The Lord Justice-Clerk referred to the Lord Justice-General 1977 Practice Note and to a series of decisionsin which the appeal court have given guidance on eyewitness identification in general. Important as these arein relation to that matter, they do not deal with the peculiar dangers of a dock identification where a witnesspreviously failed to identify at an identification parade. Nor is there anything in the excerpts from the JudicialHandbook to suggest that judges should give a direction of this kind. Doubtless, in practice, judges often doso. In my respectful view, however, given the importance of the safeguard, judges should give an appropriate
Page 20
and authoritative direction in all cases of this kind. The general lines of such a direction are obvious, but,ideally, in any given case its precise form will reflect the particular circumstances.
[59] Applying the approach which I have outlined to the circumstances of this case, one can immediately seethat the appellant had the benefit of counsel, who first objected to the admission of the dock identificationevidence and then cross-examined the witnesses about their identifications, including the point that they hadfailed to identify the appellant at the identification parade. Furthermore, although there is no transcript of thespeech which senior counsel for the appellant made to the jury, the passage which I have quoted in para 31from the judge charge to the jury shows that she made submissions to the effect that the evidence was notfair and that the jury should not rely on it. It is therefore clear that, in this respect, the rights of the defencewere fully respected.
[60] So far as corroboration of the identification by Miss Gilchrist is concerned, there was the identification ofthe appellant by her son, who had picked him out at the identification parade. In addition there was the airpistol which had been found in the appellant possession some eleven days later and which looked like thepistol used in the attack on Mr Lynn and Miss Gilchrist. But there was evidence also that air pistols tended tolook the same. So far as charge 3 is concerned, the principal corroboration of the dock identificationevidence of Mr Simpson was to be found in the identification evidence of Miss Gilchrist and Jamie Gilchriston charge 2. In addition there was the evidence that the air pistol found in the appellant possession wassimilar to the weapon used in the attack on Mr Simpson.
[61] It is important to recall that, as the judge directed the jury, the critical issue in the trial, in relation tocharges 2 and 3 in particular, was the quality of the identification evidence.
[62] Finally, while the judge gave the jury the usual directions on the need for care in relation to identificationevidence, he merely told them that they should remember senior counsel general point that a dockidentification is in her submission not fair and therefore not to be relied upon. All I require of you is toapproach all the evidence of identification with great care and circumspection. Whether deliberately or not,the way that this particular direction was formulated might be thought to suggest that the judge wasdistancing himself from senior counsel submissions on the point. At the very least, neither by associatinghimself with her submissions nor otherwise did the judge clearly warn the jury of the particular risks of a dockidentification in a case where the witness had previously failed to identify the appellant at the identificationparade.
[63] These factors will have to be reconsidered in the context of senior counsel further submission that thetrial was unfair in terms of Art 6 because of two distinct failures by the Crown to disclose relevant informationto the defence. Failure to disclose outstanding charges
[64] Senior counsel submitted that, by failing to disclose the information about the charges against Mr Lynnand Miss Gilchrist relating to drug dealing from the house where they were attacked, the prosecution hadinfringed the appellant rights under Art 6(1) of the Convention. The parties accepted that the requirements ofArt 6(1) in this regard had been correctly identified by the European Court of Human Rights in Edwards v UK(para 36):
The Court considers that it is a requirement of fairness under paragraph 1 of Article 6 (art. 6-1), indeed onewhich is recognised under English law, that the prosecution authorities disclose to the defence all materialevidence for or against the accused. In McLeod v HM Advocate (No 2) a court of five judges applied thatguidance when considering the duty of the Crown to make disclosure under Scots law. I put the positionshortly (p 79FG):
Page 21
Our system of criminal procedure therefore proceeds on the basis that the Crown have a duty at any time todisclose to the defence information in their possession which would tend to exculpate the accused. I addedthat the court would order the production of documents if satisfied that their production would be likely to beof material assistance to the proper preparation or presentation of the accused defence (p 80EF). LordHamilton said that the duty was to disclose information that is significant to an indicated line of defence or islikely to be of real importance to any undermining of the Crown case or to any casting of reasonable doubton it, (p 83AC).
[65] Before the Board the Advocate-depute, Mr Brailsford QC, who argued this part of the appeal, acceptedthese formulations of the Crown duty of disclosure. Similarly, senior counsel for the appellant accepted thatthey accurately described the duty of the Crown in terms of Art 6(1). The problem, she said, was not the waythat the duty had been formulated in McLeod but the way in which it had subsequently been interpreted andapplied by the Crown and, in her experience, by the judges. If she had not applied to the court for an orderfor disclosure in this case, it was because, in her experience, it would have been unlikely to be granted.
[66] There is no doubt that, historically, in Scotland the Crown have been reluctant to provide the defencewith details of the previous convictions of witnesses in advance of trial. In part, at least, this reluctance isprobably a hangover from a time when the Crown regarded all the information which they gathered wheninvestigating a case as confidential. This could be and was justified on the ground that it preventedunnecessary and undesirable diffusion of discreditable information about individuals. Moreover, in practicethis approach was not thought to be liable to prejudice the defence since, at the trial, the prosecutor, actingas a minister of justice, would put forward everything that needed to be revealed in the interests of both theprosecution and the defence. On the other side, the defence were free to precognosce the relevantwitnesses and to build up their case in preparation for the trial. But, since at the trial the prosecutor wouldcorrect any false impression about a witness previous convictions, there was no need for the defence to betold about them in advance.
[67] In more recent years the practice of the Crown has been somewhat modified so as to permit disclosureof previous convictions where the defence agents can show that they would be relevant to the proposeddefence. In 2002, when the question of disclosure arose in this case, the Book of Regulations for theProcurator Fiscal Service described the position in this way:
Defence solicitors may be supplied with copies of the criminal records of their clients if they so request inconnection with any matter relating to bail. In relation to any request for the criminal record of a witness, thedefence should be asked to state the basis upon which the previous convictions are sought in relation toeach witness and, in particular, the relevance of any previous convictions to the proposed defence.Thereafter, procurators fiscal should consider, having regard to the relevant authority, whether the previousconvictions requested ought to be disclosed. In cases of doubt or difficulty or of particular complexity, therequest for disclosure should be reported for the instructions of Crown Counsel. The report should includecopies of any schedules of previous convictions of the witnesses requested and should detail the basis uponwhich the previous convictions are sought and, in particular, the relevance of the previous convictions to theproposed defence.
If any witness gives false evidence regarding their criminal record, it is the duty of the Crown to ensure thatthe court is made aware of the true position.
[68] It is a tribute to the traditions of fairness among prosecutors in Scotland that the system which I havedescribed has caused surprisingly little difficulty in practice. Presumably, this is part of the reason why, aslate as 1988, in HM Advocate v Ashrif the appeal court came down firmly against permitting defence agentsto recover the previous convictions of Crown witnesses. In that case the accused had sought to recover theprevious convictions not from the prosecution, but from the Scottish Criminal Record Office. Moreover, the
Page 22
decision of the appeal court turned in part on their view of the competency of such a motion in the sheriffcourt. Nevertheless, the Lord Justice-Clerk (Ross) also observed (p 569):
In my opinion, there are very sound reasons why a diligence in these terms should not be granted. If accessis to be given to such criminal records of a witness, it could not be confined to solicitors acting for accusedpersons but would also be available to accused persons who were appearing on their own behalf. This mightthen result in an accused getting full information of all offences of which the witness had been convictedeven though these were not relevant and even though they had occurred many years before. If that were tobe the position, the result might well be that members of the public would be slow to come forward to giveevidence if they knew that their past record was liable to become public and in particular to be disclosed toan accused person to whom they might be known. This difficulty was recognised by the Thomson Committeewho stated their ultimate conclusion in para 27.07 as follows: While we have some sympathy with the viewthat the defence should be able to use previous convictions in the same way as the Crown, bearing in mindthe general public interest, we are not persuaded that it is desirable that the previous convictions ofwitnesses should be disclosed to the accused person or his solicitor.
[69] More recently, under the influence of Art 6(1) of the Convention, the weaknesses of this approach havebecome apparent. In Maan, Petr the accused was charged on indictment with assault. He lodged a specialdefence of self-defence and gave notice of an intention to attack the character of the complainer and theother two Crown witnesses. He sought to recover the previous convictions of the complainer and thesewitnesses, as well as those relating to a third witness who had been cited for the defence. The Crownresisted the motion and relied on HM Advocate v Ashrif. Adopting the general approach in McLeod v HMAdvocate (No 2), Lord Macfadyen declined to follow Ashrif and ordered production of the previousconvictions of all four witnesses. He said (para 27):
In my opinion, provided the witnesses previous convictions are relevant to a legitimate attack on character orto their credibility, the material sought would plainly be relevant to his defence. It is therefore material whichthe petitioner is prima facie entitled to have disclosed to him. Moreover, in my view he is prima facie entitledto have it disclosed to him in advance of the trial. His right is to have disclosed to him material necessary forthe proper preparation as well as the proper presentation of his defence. Possession of information about thewitnesses relevant criminal records would enable the petitioner counsel or solicitor to make properpreparation for the cross-examination of the witnesses in question. Lack of that information in advance wouldnot wholly preclude the contemplated lines of cross-examination, but would make embarking on them amuch more uncertain course. Matters of credibility and character depend very much on the impressionsmade on the jury, and cross-examination might well be less effective if embarked upon without knowledge ofthe detail of the witnesses records. An impression unfairly unfavourable to the petitioner might be made onthe jury if cross-examination were embarked upon on his behalf, appeared to be unsuccessful, then wasfollowed by re-examination which showed that the cross-examiner had been ill-informed.
[70] As Lord Macfadyen shows, it is in principle wrong that at trial the prosecutor should have officialinformation about witnesses previous convictions which has been withheld from the defence. Thepresentation of the defence case is liable to be less effective if the accused counsel and agents do not havethe information in advance of the trial. Reflecting a shift in the position of the Crown, in presenting hisargument before the Board the Advocate-depute did not seek to justify this situation by reference to thesupposed practical difficulties identified in Ashrif which, it is fair to say, have not been experienced in otherjurisdictions where previous convictions have long been supplied to the defence. Nor did he advance anyother reason why the public interest required that this information should be withheld.
[71] Although the approach recommended in the Book of Regulations constitutes a significant advance onthe traditional stance of the Crown, it still requires procurators fiscal to decide whether the circumstances aresuch that, in the public interest, the witnesses previous convictions should be revealed to the accusedrepresentatives. That procedure is open to the kind of criticism expressed by the European Court in Rowe
Page 23
and Davis v UK (p 30). Having explained that it is not the role of the European Court to decide whether or notnon-disclosure on public interest grounds was strictly necessary, the Court continued:
62. Instead the European Court task is to ascertain whether the decision-making procedure applied in eachcase complied, as far as possible, with the requirements of adversarial proceedings and equality of arms andincorporated adequate safeguards to protect the interests of the accused.
63. During the applicants trial at first instance the prosecution decided, without notifying the judge, towithhold certain relevant evidence on grounds of public interest. Such a procedure, whereby the prosecutionitself attempts to assess the importance of concealed information to the defence and weigh this against thepublic interest in keeping the information secret, cannot comply with the above-mentioned requirements ofarticle 6(1).
[72] Although it is open to the defence to apply to the Court for an order for production, the schemeenvisaged by the Book of Regulations places procurators fiscal and Crown counsel in the invidious positionof having to judge the relevance of previous convictions to a defence, the lines of which the accusedrepresentatives are generally under no obligation to reveal. In reality, however, the scheme is more deeplyflawed since it is obvious that a reasonably competent defence agent or counsel, considering how toapproach the examination or cross-examination of a witness, would wish to know whether the witness hadany previous convictions and, if so, their nature. Indeed it is precisely the kind of thing he would want toknow. What use, if any, the agent or counsel chooses to make of the information is a matter for him and hemay well not be able to decide until he actually has it. But, at the very least, the information will help inassessing the strengths and weaknesses of the witness. Therefore, information about the previousconvictions of any witnesses to be led at the trial would be likely to be of material assistance to the properpreparation or presentation of the accused defence. Under Art 6(1) the accused agents and counsel areaccordingly entitled to have that information disclosed so that they can prepare his defence. Since in this wayboth sides will have access to this information at trial, the accused right to equality of arms will be respected.The observations to the contrary effect in HM Advocate v Ashrif should not be followed.
[73] Of course, in the present case the defence agents did not ask for details of previous convictions of MrLynn but, rather, for information about any outstanding criminal charges that he faced. In particular, theywished to know whether he had been indicted or was due to be indicted in the near future. Again, for thesame kinds of reasons, this is information which would be likely to be of material assistance to the properpreparation or presentation of the accused defence. So, in principle, in terms of Art 6(1) the Crown shoulddisclose it. As a rule, there could be no good reason not to disclose that the witness had been charged.Similarly, in solemn cases, where the witness has been indicted, the defence agents can be told. Where nodecision has yet been taken about indicting the witness, the defence agents should be told that.
[74] Details of previous convictions are computerised and procurators fiscal can readily obtain the necessaryinformation. Details of outstanding charges, especially in summary proceedings, may well be much moredifficult to discover, if, for example, a different office is dealing with the matter. So, while the duty of thosehandling the Crown case will be to disclose any outstanding charges of which they know, a general duty tosearch for outstanding charges would be unduly burdensome. If Crown officials are asked about a particularwitness, they need only take such steps to search for any outstanding charges as are appropriate, havingregard to any indications given in the defence request.
[75] At first sight, the letters from Crown Office in this case might give the impression that, without furtherspecification, the officials would not have known whether there were any charges against Mr Lynn. That isplainly not the case, however. Mr Lynn had appeared on petition on 12 July 2001 and so his trial would havehad to begin within twelve months of that date. He and Miss Gilchrist were indeed indicted to a sitting of theHigh Court in July 2002 and High Court indictments are handled under the direction of Crown Office.
Page 24
Therefore, as the Advocate-depute conceded, in February 2002 officials in Crown Office would either haveknown, or have readily been able to discover, that there were outstanding charges against Mr Lynn (andMiss Gilchrist) relating to drug dealing from the very house where the assault had taken place. The officialssimply chose not to disclose that information, apparently on the view that the defence agents had not shownthat it was necessary for the proper preparation of the appellant defence. That was, however, an untenableconclusion since, quite plainly, a reasonably competent agent or counsel preparing the defence would havewished to know that, in another context, the Crown were alleging that, shortly before, both the complainershad been involved in drug dealing from the very house where they were attacked. Such information wouldhelp to complete the picture both of the complainers and of their milieu. In that sense, it was highly relevantto the preparation of the defence and should have been disclosed, whether or not the defence agents askedfor it and whether or not they sought a court order. Moreover, the information was not any the less relevantbecause in the end counsel might choose not to refer to it at trial. The agents and counsel were entitled tohave the information on which to reach their own independent judgment on how best to proceed. In thesecircumstances I am satisfied that, by failing to provide the defence with information about the outstandingcharges against Mr Lynn and Miss Gilchrist, the Crown infringed the appellant Art 6(1) Convention right.Failure to disclose remark after the identification parade
[76] Both before the appeal court and again before the Board, the Crown accepted that they had infringedthe appellant Art 6(1) Convention right by failing to tell the defence about the remark which the police officerhad made to Miss Gilchrist after the identification parade. Did the appellant have a fair trial in terms of Article6(1)?
[77] It is now necessary to consider whether, taken as a whole, the appellant trial was fair in terms of Art6(1).
[78] The fact that he was represented by counsel and a solicitor who could investigate the case on his behalf,who could, and did, object to the admission of evidence, who examined and cross-examined the witnessesand who made submissions to the jury is a positive feature, pointing towards the trial being fair.
[79] On the other hand, the appellant rights under Art 6(1) were breached by the Crown failure to disclose theoutstanding charges against Mr Lynn and Miss Gilchrist as well as by their failure to tell the defence what thepolice officer had said to Miss Gilchrist after the identification parade. In the appeal court both the LordJustice-Clerk and Lord Hamilton considered that, on any view, these failures had not resulted in anysubstantial prejudice to the appellant (Holland v HM Advocate (2004), paras 4144 and 5459 respectively).
[80] So far as the failure to disclose the outstanding charges is concerned, at the trial the Advocate-deputecalled Mr Lynn sister, Anne Lynn, as a witness. She gave evidence that Mr Lynn and Miss Gilchrist weredrug dealers and were involved in prostitution. The Advocate-depute did not suggest to Miss Lynn that herevidence on this point was untruthful and senior counsel did not take the matter any further. The LordJustice-Clerk considered that Miss Lynn evidence put the defence in the best possible position since theinformation came from a source within the family and had emerged without defence counsel having to runthe risk that, by questioning the complainers about their involvement in drugs, she would have exposed theappellant to questioning about his own (significant) previous convictions.
[81] Senior counsel made the point, however, that, if she had known about the outstanding charges and hadbeen able to put them to the complainers, this would have reinforced Miss Lynn evidence and so would havehelped, for instance, to undermine the credibility of Miss Gilchrist who had claimed not to know what wasmeant by gear. She accepted that cross-examination on the outstanding charges would have come withinthe terms of sec 266(4)(b) of the Criminal Procedure (Scotland) Act 1995, but submitted that in thecircumstances she might well have been able to persuade the judge to exercise his wide discretion to refuseany application by the Advocate-depute to cross-examine the appellant on his previous convictions (Leggate
Page 25
v HM Advocate, p 145).
[82] Clearly, if the appellant convictions had been revealed to the jury, this might well have been a disastrousconsequence, to adopt the Lord Justice-Clerk description. But, given what Miss Lynn said in evidence andMiss Gilchrist claim that she did not know what was meant by gear, I am unable to say thatcross-examination of the complainers about the outstanding drugs charges would inevitably have led to theCrown being permitted to cross-examine the appellant on his previous convictions. Information about theoutstanding charges might therefore have played a useful part in the defence effort to undermine thecredibility of the Crown principal witness on charge 2. At least, that possibility cannot be excluded. Onecannot tell, for sure, what the effect of such cross-examination would have been. But, applying the testsuggested by Lord Justice-General Clyde in Hogg v Clark (p 10) I cannot say that the fact that counsel wasunable to cross-examine in this way might not possibly have affected the jury (majority) verdict on charge 2and hence their verdict on charge 3.
[83] Similarly, it is hard to make any precise assessment of the significance of the Crown failure to disclosethe remark made to Miss Gilchrist after the identification parade. One can be sure, however, that, if thedefence had been aware of it, senior counsel would have deployed it in her cross-examination of MissGilchrist. It would have been one more reason for suggesting to her and ultimately to the jury that her dockidentification of the appellant was not to be trusted. By withholding the information, the Crown deprived thedefence of the opportunity to advance this additional argument on the crucial issue of identification. Again, Icannot say that this might not possibly have affected the jury verdict.
[84] The two Crown failures to disclose information are therefore properly to be seen not as separate andisolated infringements of Art 6(1), but as infringements that each had a bearing on Miss Gilchrist dockidentification of the appellant, which was one of the central elements of the prosecution case at the trial. Forthe reasons which I have already given, the dock identifications by Miss Gilchrist and Mr Simpson, who hadfailed to pick out the appellant at the identification parade, carried with them significant risks of mistake, overand above the risks of mistake which go with any eyewitness identification evidence. Unfortunately, the trialjudge gave the jury no proper warning about those additional risks.
[85] At the trial the Crown also relied, by way of corroboration, on Jamie Gilchrist evidence and on theappellant possession of an air pistol which resembled the one used in the assaults and robberies. None theless, as the trial judge told the jury, the critical issue in relation to charges 2 and 3 was the quality of theidentification evidence. Taking all the relevant factors together, I have reached the conclusion that in thiscase the failures of the Lord Advocate representatives to disclose information to the defence and theAdvocate-depute reliance on the dock identifications of Miss Gilchrist and Mr Simpson were incompatiblewith the appellant core Art 6 Convention right since, taken together, they resulted in an unfair trial. Since aconviction resulting from an unfair trial cannot stand, the appellant conviction of charges 2 and 3 must bequashed.
[86] I would accordingly propose that, in the exercise of the Board powers under Art 4(1)(a) of the JudicialCommittee (Powers in Devolution Cases) Order 1999 (SI 1999/1320), the appeal should be allowed, theverdict of the jury set aside and the appellant conviction of charges 2 and 3 on the indictment quashed.Thereafter the case should be remitted to the appeal court to decide whether to grant the Crown authority tobring a new prosecution in terms of sec 119 of the Criminal Procedure (Scotland) Act 1995 (cap 46).
Baroness Hale of Richmond [87] I am in complete agreement with the opinion of my noble and learned friendLord Rodger of Earlsferry and for the reasons that he gives would make the orders which he proposes.
Lord Carswell [88] I have had the advantage of reading in draft the opinion of my noble and learned friend
Page 26
Lord Rodger of Earlsferry. For the reasons which he has given I too would allow the appeal and make theorder which he proposes.
The Court allowed the appeal and remitted the case to the High Court of Justiciary to decide whether to grantthe Crown authority to bring a new prosecution.
Copyright 2004 Scottish Council of Law Reporting
Scottish Case Digests/2005/Holland v HM Advocate - 2005 Scot (D) 1/5
2005 Scot (D) 1/5
Holland v HM Advocate
[2005] UKPC D1
Privy Council
Lord Bingham of Cornhill, Lord Hope of Craighead, Lord Rodger of Earlsferry, Baroness Hale ofRichmond and Lord Carswell
11 May 2005
Criminal evidence and procedure - Devolution issue - Right to fair trial - Dock identification - CriminalProcedure (Scotland) Act 1995, s 92(1) - European Convention on Human Rights, art 6(1).
The petitioner was charged with, inter alia, two offences of assault and robbery. The victims of the firstoffence were L and G. The victim of the second offence was S. At an identification parade, L, who had poorsight, could not identify anyone; G's son, J, who had arrived on the scene before the robbers had left,identified the petitioner; and G and S each picked out two different stand-ins. At the trial, G, J and S madedock identifications of the petitioner. L was not asked to do so because of his poor sight. The petitioner wasconvicted. He appealed, on the grounds that dock identification evidence was so unfair and unreliable that itwas incompatible with a fair trial under art 6(1) of the European Convention on Human Rights; that theprocedure of dock identification had compelled him to assist the Crown case against him by exhibitinghimself, contrary to his art 6(1) right against self-incrimination; and that the Crown had failed to disclosecertain information to the defence.
The appeal would be allowed.
(1) The right of the petitioner against self-incrimination, guaranteed by art 6(1), had not been infringed by theprocedure of dock identification. Section 92(1) of the Criminal Procedure (Scotland) Act 1995 provided that,in general, 'no part of a trial shall take place outwith the presence of the accused'. That requirement that theaccused should usually be present throughout his trial was designed to promote his interests, and involvedno conceivable breach of art 6(1). Of course, one side effect of the accused's right to be present whenwitnesses gave their evidence was that they could see him in the dock. Any potential dangers in witnessesidentifying the accused in the dock as the perpetrator of the crime did not arise, however, out of the legalrequirement for him to be present in court: they would apply equally if he were present voluntarily. Moreover,the quality of the witnesses' identification of the accused was not affected one way or the other by the factthat he was compelled to be present.
Page 27
(2) There was no basis, except perhaps in an extreme case, either in domestic law or under the Convention,for regarding dock identifications as inadmissible per se. However, the mere existence of safeguards such asthe requirement for corroboration, and the opportunity for counsel to contrast a failure to identify at anidentification parade with identification in the dock and to comment accordingly, could not be used to justifythe abstract proposition that in all cases in Scots law an accused who had been convicted on the basis of adock identification had necessarily had a fair trial. In Scots law, as in any other system, the actualcircumstances of any given trial had to be considered before it could be said that it was fair. In the instantcase, the judge had not clearly warned the jury of the particular risks of a dock identification in a case wherethe witness had previously failed to identify the accused at an identification parade. The advocate depute'sreliance on the dock identifications, together with the failures of the Lord Advocate's representatives todisclose information to the defence, had rendered the petitioner's trial unfair within the terms of art 6(1).Accordingly, in the exercise of the Board's powers under art 4(1)(a) of the Judicial Committee (Powers inDevolution Cases) Order 1999, the petitioner's conviction would be quashed, and the case would be remittedto the appeal court to decide whether to grant the Crown authority to bring a new prosecution in terms ofs 119 of the 1995 Act.
Kate O'Hanlon, Barrister.
Holland v HM Advocate
[2005] UKPC D1, (2005) Times, 1 June, 2005 SCCR 417, 18 BHRC 500, [2005] 4 LRC 445, [2005] All ER(D) 193 (May)
Court: PC
Judgment Date: 11/05/2005
Case HistoryAnnotations Case Name Citations Court Date Signal
-- Holland v HM Advoc-ate
[2005] UKPC D1, (2005)Times, 1 June, 2005SCCR 417, 18 BHRC500, [2005] 4 LRC 445,[2005] All ER (D) 193(May)
PC 11/05/2005
Reversing Holland v HM Advoc-ate
2004 SLT 762, 2004SCCR 452
HC ofJustici-ary (Sc)
16/06/2004
Reversing Holland v HM Advoc-ate
2003 SLT 1119, 2003SCCR 616
HC ofJustici-ary (Sc)
21/08/2003
Cases referring to this caseAnnotations: All Cases Court: ALL COURTSSort by: Judgment Date (Latest First)Treatment Case Name Citations Court Date Signal
Applied Allison v HM Advocate(Scotland)
[2010] UKSC 6, (2010)Times, 17 February,2010 SC (UKSC) 19,
SC 10/02/2010
Page 28
2010 SLT 261, 2010SCCR 277, [2010] AllER (D) 103 (Feb)
Considered McInnes v HM Advoc-ate (Scotland)
[2010] UKSC 7, 2010SC (UKSC) 28, 2010SLT 266, 2010 SCCR286, [2010] All ER (D)101 (Feb)
SC 10/02/2010
Considered HM Advocate v Kelly 2010 SCCR 86 Sh Ct 13/11/2009
Considered McDonald v HM Ad-vocate
[2008] UKPC 46, (2008)Times, 5 November,2010 SC (PC) 1, 2008SLT 993, 2008 SCCR954, [2008] All ER (D)253 (Oct)
PC 16/10/2008
Considered McInnes v HM Advoc-ate
[2008] HCJAC 53, 2009JC 6, 2008 SCCR 869
HC ofJustici-ary (Sc)
26/09/2008
Considered Fraser v HM Advocate [2008] HCJAC 26, 2008SCCR 407
HC ofJustici-ary (Sc)
06/05/2008
Applied Pipersburgh v R
[2008] UKPC 11, 72WIR 108, [2008] 4 LRC345, [2008] All ER (D)334 (Feb)
PC 22/02/2008
Cases considered by this caseAnnotations: All CasesCourt: ALL COURTSSort by: Judgment Date (Latest First)
Treatment Case Name Citations Court Date Signal
Applied McLeod v HM Advoc-ate
1998 JC 67, 1998 SLT233, 1998 SCCR 77
HC ofJustici-ary (Sc)
19/12/1997
Catchwords & Digest
CRIMINAL LAW, EVIDENCE AND PROCEDURE - APPEAL FROM SCOTLAND TO PRIVY COUNCIL -DEVOLUTION ISSUE - RIGHT TO FAIR TRIAL - DOCK IDENTIFICATION - CRIMINAL PROCEDURE(SCOTLAND) ACT 1995, S 92(1) - EUROPEAN CONVENTION ON HUMAN RIGHTS, ART 6(1).The petitioner was charged with, inter alia, two offences of assault and robbery. The victims of the firstoffence were L and G. The victim of the second offence was S. At an identification parade, L, who had poorsight, could not identify anyone; G's son, J, who had arrived on the scene before the robbers had left,identified the petitioner; and G and S each picked out two different stand-ins. At the trial, G, J and S madedock identifications of the petitioner. L was not asked to do so because of his poor sight. The petitioner wasconvicted.He appealed, on the grounds that dock identification evidence was so unfair and unreliable that it wasincompatible with a fair trial under art 6(1) of the European Convention on Human Rights; that the procedureof dock identification had compelled him to assist the Crown case against him by exhibiting himself, contraryto his art 6(1) right against self-incrimination; and that the Crown had failed to disclose certain information tothe defence.
Page 29
Held - The appeal would be allowed. (1) The right of the petitioner against self-incrimination, guaranteed byart 6(1), had not been infringed by the procedure of dock identification. Section 92(1) of the CriminalProcedure (Scotland) Act 1995 provided that, in general, 'no part of a trial shall take place outwith thepresence of the accused'. That requirement that the accused should usually be present throughout his trialwas designed to promote his interests, and involved no conceivable breach of art 6(1). Of course, one sideeffect of the accused's right to be present when witnesses gave their evidence was that they could see him inthe dock. Any potential dangers in witnesses identifying the accused in the dock as the perpetrator of thecrime did not arise, however, out of the legal requirement for him to be present in court: they would applyequally if he were present voluntarily. Moreover, the quality of the witnesses' identification of the accusedwas not affected one way or the other by the fact that he was compelled to be present.(2) There was no basis, except perhaps in an extreme case, either in domestic law or under the Convention,for regarding dock identifications as inadmissible per se. However, the mere existence of safeguards suchas the requirement for corroboration, and the opportunity for counsel to contrast a failure to identify at anidentification parade with identification in the dock and to comment accordingly, could not be used to justifythe abstract proposition that in all cases in Scots law an accused who had been convicted on the basis of adock identification had necessarily had a fair trial. In Scots law, as in any other system, the actualcircumstances of any given trial had to be considered before it could be said that it was fair. In the instantcase, the judge had not clearly warned the jury of the particular risks of a dock identification in a case wherethe witness had previously failed to identify the accused at an identification parade. The advocate depute'sreliance on the dock identifications, together with the failures of the Lord Advocate's representatives todisclose information to the defence, had rendered the petitioner's trial unfair within the terms of art 6(1).Accordingly, in the exercise of the Board's powers under art 4(1)(a) of the Judicial Committee (Powers inDevolution Cases) Order 1999, the petitioner's conviction would be quashed, and the case would be remittedto the appeal court to decide whether to grant the Crown authority to bring a new prosecution in terms of s119 of the 1995 Act.
Scottish Case Digests/2004/Holland v HM Advocate - 2004 Scot (D) 27/6
2004 Scot (D) 27/6
Holland v HM Advocate
Appeal Court, High Court of Justiciary
Lord Justice Clerk (Gill), Lord Penrose, Lord Hamilton
16 June 2004
Criminal - Appeal - Duty of Crown to disclose material information to defence - Armed robbery - Failure byCrown to disclose involvement of complainers in drug dealing and remark made by police officer followingunsuccessful identification parade - Whether miscarriage of justice.
The appellant was convicted of, inter alia, two charges of armed robbery. The first robbery was committed ina flat. The two occupiers of the flat, G and L, were the complainers. At the trial the Crown relied, inter alia, onthe identification of the appellant in court by G. The second robbery was committed at shop premises and theCrown relied, inter alia, on the identification of the appellant by the shop manager. The defence was that theidentification evidence was unreliable, especially since both of the complainers had failed to identify theappellant in identification parades. In this appeal the appellant advanced two grounds of appeal, both basedupon alleged breaches by the Crown of its duty to disclose material information to the defence. The firstalleged breach was the failure to inform the defence that G and L were facing charges for drug offences. Thesecond alleged breach was the failure to disclose a remark that G reported having been made to her by a
Page 30
police officer following the identification parade, namely that she had not done too well. Before the trial thedefence had sought information from the Crown about outstanding criminal charges against L but thatrequest had been refused. The Crown submitted that there was no general obligation to disclose informationregarding the character of a Crown witness as that would not generally exculpate an accused and that thedefence request for information had not explained why the material sought was material or relevant. TheCrown also submitted that the defence had clearly had information regarding L's drug dealing but hadchosen not to ask L or G about it. Attacking the character of the complainers would have risked opening upreference to the appellant's character and his criminal record. The Crown conceded that the failure to notifythe defence of the reported police remark was a breach of its obligation of disclosure but argued that in thecircumstances there had been no miscarriage of justice.
The appeal would be refused.
Both grounds of appeal failed. In relation to the failure to disclose the drug dealing charges pending againstthe complainers, the Crown was not in breach of its obligation. There was no reason why it would have beenimmediately apparent to the Crown that the pending prosecution of L and G was material to the defence ofthe appellant on a charge of having robbed them. Furthermore, when the Crown asked the defence agents toexplain why they considered the information sought to be material, it received no satisfactory answer. TheCrown was therefore entitled to refuse to disclose the information sought. In any event, even if the Crownwas in breach of its obligation, in the circumstances there was no miscarriage of justice. The defence hadgrounds to suspect that L and G were engaged in drug dealing and could have attempted to recover thenecessary information by petition to the court or asked G and L about drug dealing, but had taken neither ofthese steps. In relation to the second charge, the failure to disclose the remark had not caused a miscarriageof justice. The jury was aware of G's misidentifications at the identification parade. In any case even withoutG's evidence there was still ample evidence to convict the appellant. Accordingly the appeal would berefused.
For an earlier appeal based on the question of dock identification, see Holland v HM Advocate 2003 Scot (D)19/8, 2003 SCCR 616, 2003 SLT 1119.
M E Scott, QC, Latif (instructed by Drummond Miller, WS) for the appellant
Turnbull, QC, Advocate Depute (instructed by Crown Agent) for the respondent
Caroline Dale-Risk, LLB, Dip LP, MPhil
Holland v HM Advocate
2004 SLT 762, 2004 SCCR 452
Court: HC of Justiciary (Sc)
Judgment Date: 16/06/2004
Case HistoryAnnotations Case Name Citations Court Date Signal
-- Holland v HM Advoc-ate
[2005] UKPC D1, (2005)Times, 1 June, 2005SCCR 417, 18 BHRC
PC 11/05/2005
Page 31
500, [2005] 4 LRC 445,[2005] All ER (D) 193(May)
Reversing Holland v HM Advoc-ate
2004 SLT 762, 2004SCCR 452
HC ofJustici-ary (Sc)
16/06/2004
Reversing Holland v HM Advoc-ate
2003 SLT 1119, 2003SCCR 616
HC ofJustici-ary (Sc)
21/08/2003
Catchwords & Digest
CRIMINAL LAW, EVIDENCE AND PROCEDURE - APPEAL - DUTY OF CROWN TO DISCLOSEMATERIAL INFORMATION TO DEFENCE - ARMED ROBBERY - FAILURE BY CROWN TO DISCLOSEINVOLVEMENT OF COMPLAINERS IN DRUG DEALING AND REMARK MADE BY POLICE OFFICERFOLLOWING UNSUCCESSFUL IDENTIFICATION PARADE - WHETHER MISCARRIAGE OF JUSTICEThe appellant was convicted of, inter alia, two charges of armed robbery. The first robbery was committed ina flat. The two occupiers of the flat, G and L, were the complainers. At the trial the Crown relied, inter alia, onthe identification of the appellant in court by G. The second robbery was committed at shop premises and theCrown relied, inter alia, on the identification of the appellant by the shop manager. The defence was that theidentification evidence was unreliable, especially since both of the complainers had failed to identify theappellant in identification parades. In this appeal the appellant advanced two grounds of appeal, both basedupon alleged breaches by the Crown of its duty to disclose material information to the defence. The firstalleged breach was the failure to inform the defence that G and L were facing charges for drug offences. Thesecond alleged breach was the failure to disclose a remark that G reported having been made to her by apolice officer following the identification parade, namely that she had not done too well. Before the trial thedefence had sought information from the Crown about outstanding criminal charges against L but thatrequest had been refused. The Crown submitted that there was no general obligation to disclose informationregarding the character of a Crown witness as that would not generally exculpate an accused and that thedefence request for information had not explained why the material sought was material or relevant. TheCrown also submitted that the defence had clearly had information regarding L's drug dealing but hadchosen not to ask L or G about it. Attacking the character of the complainers would have risked opening upreference to the appellant's character and his criminal record. The Crown conceded that the failure to notifythe defence of the reported police remark was a breach of its obligation of disclosure but argued that in thecircumstances there had been no miscarriage of justice.Held - The appeal would be refused. Both grounds of appeal failed. In relation to the failure to disclose thedrug dealing charges pending against the complainers, the Crown was not in breach of its obligation. Therewas no reason why it would have been immediately apparent to the Crown that the pending prosecution of Land G was material to the defence of the appellant on a charge of having robbed them. Furthermore, whenthe Crown asked the defence agents to explain why they considered the information sought to be material, itreceived no satisfactory answer. The Crown was therefore entitled to refuse to disclose the informationsought. In any event, even if the Crown was in breach of its obligation, in the circumstances there was nomiscarriage of justice. The defence had grounds to suspect that L and G were engaged in drug dealing andcould have attempted to recover the necessary information by petition to the court or asked G and L aboutdrug dealing, but had taken neither of these steps. In relation to the second charge, the failure to disclose theremark had not caused a miscarriage of justice. The jury was aware of G's misidentifications at theidentification parade. In any case even without G's evidence there was still ample evidence to convict theappellant. Accordingly the appeal would be refused.
Holland v HM Advocate
Page 32
2003 SLT 1119, 2003 SCCR 616
Court: HC of Justiciary (Sc)
Judgment Date: 21/08/2003
Case HistoryAnnotations Case Name Citations Court Date Signal
-- Holland v HM Advoc-ate
[2005] UKPC D1, (2005)Times, 1 June, 2005SCCR 417, 18 BHRC500, [2005] 4 LRC 445,[2005] All ER (D) 193(May)
PC 11/05/2005
Reversing Holland v HM Advoc-ate
2004 SLT 762, 2004SCCR 452
HC ofJustici-ary (Sc)
16/06/2004
Reversing Holland v HM Advoc-ate
2003 SLT 1119, 2003SCCR 616
HC ofJustici-ary (Sc)
21/08/2003
Cases referring to this caseAnnotations: All Cases Court: ALL COURTSSort by: Judgment Date (Latest First)Treatment Case Name Citations Court Date Signal
Considered Murphy v HM Advoc-ate
[2007] HCJAC 57, 2007SLT 1079, 2007 SCCR532
HC ofJustici-ary (Sc)
09/10/2007
Catchwords & Digest
CRIMINAL LAW, EVIDENCE AND PROCEDURE - IDENTIFICATION OF ACCUSED - DOCKIDENTIFICATION - COMPLAINERS MAKING DOCK IDENTIFICATION AFTER FAILING TO PICK OUTACCUSED IN IDENTIFICATION PARADE - WHETHER DOCK IDENTIFICATION UNFAIR ANDUNRELIABLE - WHETHER PROCEDURE COMPELLING ACCUSED TO PROVIDE EVIDENCE AGAINSTHIMSELF - WHETHER CONTRARY TO RIGHT TO FAIR TRIAL - SUFFICIENCY OF IDENTIFICATIONEVIDENCE - EUROPEAN CONVENTION ON HUMAN RIGHTS, ART 6The appellant was convicted, inter alia, of two charges of assault and robbery. In respect of the first chargeone of the complainers (G) attended an identification parade at which she picked out two stand-ins. Inrelation to the second charge the complainer (S) also attended an identification parade and identified twostand-ins. At the trial counsel objection was taken to either G or S being asked whether they could identifytheir assailant in court. The trial judge repelled the objections and the complainers identified the appellant asbeing one of the robbers. G also picked out the co-accused as being one of the robbers, although he was notcharged with the robbery. The appellant was convicted and appealed. This hearing was concerned with twogrounds of appeal. The first was that the trial judge erred in repelling the objection to the proposed dockidentification (a) because such identification was unfair and unreliable per se, and (b) because it had theeffect of compelling the accused to assist the Crown by providing evidence against himself contrary to thelaw of Scotland and to the accused's right to a fair trial in terms of art 6 of the European Convention onHuman Rights. The second ground was that (i) in the circumstances the trial judge should have excluded theproposed dock identifications of G and S; and (ii) even if it was properly admitted, the trial judge should indue course have withdrawn the case from the jury, in terms of s 106(3)(b) of the Criminal Procedure
Page 33
(Scotland) Act 1995, on the basis that the evidence was such that no reasonable jury, properly directed,could convict on these charges. The Crown submitted that the practice of dock identification had beenrepeatedly recognised without its fairness having been doubted and argued that there were adequatesafeguards to ensure that the accused had a fair trial.Held - The appeal so far as based on these two grounds would be refused.(1) While dock identification could in some cases be said to be a less satisfactory form of identification thanidentification made at an identification parade, or on some other occasion shortly after the relevant event, itcould not be said to be unfair per se. Rather it was a competent and important part of criminal procedure.There might be good reason for either the failure to hold an identification parade or for a witness failing toidentify the accused at an identification parade and the Crown should not be prevented by an inflexible rulefrom having the accused identified in court. While a witness might be influenced by the accused'sconspicuous position in the dock, experience showed that in many cases the witness would be able toidentify the accused wherever he was sitting. Furthermore important safeguards were provided by the lawsof evidence and procedure, including the law of corroboration, the opportunity given to the defence to foundon an earlier failure to identify and, most importantly, the judge's charge.(2) The submission that dock identification involved the accused's being compelled to exhibit himself foridentification and thereby to assist the Crown case was unsound. There was a material distinction betweenthe case where the accused was made to give active assistance to the prosecution at his trial and the casewhere his participation in the trial was passive only. There was active assistance, and therefore amiscarriage of justice, where the accused was made to assist in the identification process. However it couldnot be said that an accused person was compelled to assist the Crown case by the mere fact that hispresence in court made it possible for a witness to identify him. Nor could such passive assistance beregarded as depriving the accused of his protection against self-incrimination and so infringing his rightsunder art 6 of the Convention. Accordingly the first ground of appeal failed.(3) The trial judge had not erred in repelling the objection to the proposed dock identifications, nor in failing tosustain the appellant's submission that the dock identifications were such that no reasonable jury would beentitled to convict. On the facts so far as known to the trial judge when the objection was taken, there wasnothing to compel him to the conclusion that the admission of the evidence would be so irremediably unfairthat he had no option but to exclude it. Moreover on basis of the evidence in this case, the trial judge couldnot have concluded that no reasonable jury could convict on these charges. Clear and strong directions hadbeen given on the need to take special care in the assessment of identification evidence. Accordingly nomiscarriage of justice had occurred on this ground.
Page 34
Recommended
