Francis Kelly v HMA
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Scottish Criminal Case Reports/2010/HER MAJESTY'S ADVOCATE Prosecutor against FRANCIS KELLY Accused - 2010 S.C.C.R. 86
HER MAJESTY'S ADVOCATE Prosecutor against FRANCIS KELLY Accused
2010 S.C.C.R. 86
First Diet Sheriff Court, Glasgow 13 November 2009 Evidence--Identification of accused--Dock identification--Witness identifying stand-in at VIPER parade--Crown proposing to call witness at trial in hope of obtaining dock identification--Whether evidence would be inadmissible as unfair Devolution issue--Evidence--Identification of accused--Dock identification--Witness identifying stand-in at VIPER parade--Crown proposing to call witness at trial in hope of obtaining dock identification--Whether compatible with right to fair trial--European Convention on Human Rights, art 6 Evidence--Identification of accused--VIPER parade--Pixcellation--Observations on practice The accused was charged on indictment with, inter alia, a breach of the peace. The incident had apparently been witnessed by two people, one of whom, F, had left the locus by the time the police arrived, but later gave a statement by telephone.. The accused was detained by two police officers unconnected with the case who were then informed by the officer investigating the case that the accused was the person involved in the incident. He was accordingly charged and appeared on petition. The Crown refused a request by the defence to hold an identification parade and the defence obtained an order from a sheriff that a parade should be held in which the acccused 'shall be one of those constituting the parade'. The accused had two prominent scars, and a VIPER parade was held using an image of him in which these scars had been pixcellated out. F did not identify the accused but picked out the image of another person, saying that the perpetrator looked like him, 'but I couldn't swear by it. I only know that he has a scar on his face and on his neck'. The accused lodged a devolution minute and one containing a plea in bar of trial on the grounds that it would be contrary to art 6 and oppressive for the Crown to rely on a dock identification by F. These issues were dealt with at a first diet. Held (1) that dock identification was not per se unfair and inadmissible, that whether a trial was fair in terms of art 6 had to be determined after the event and that it was not possible at this stage to say that the accused could not have a fair trial (para 30); (2) that there had not been prejudice so grave as to be incapable of being removed by an appropriate direction to the jury or other appropriate action by the trial judge to give the accused a fair trial (para 33); and (3) that as the matter of whether the accused received a fair trial could be reviewed in the appeal court or beyond, the court had no alternative but to refuse the minutes (para 34); and minutes refused.
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Opinion reserved on whether the parade was in compliance with the sheriff's order (para 28). Observed that it would have been appropriate to have held the parade using the accused's image representing his actual physical condition at the time when 2010 S.C.C.R. 86 at 87 it was taken and pixcellation of other stand-ins by adding similar scarring to their images, the court being very uneasy about the concept of an accused or suspect not being truly and accurately represented in a video image because certain of his features have been airbrushed or pixcellated out (para 29). Holland v HM Advocate (PC) [2005] UKPC D1; 2005 SCCR 417; 2005 SC (PC) 3; 2005 SLT 56 considered. Cases referred to in the opinion of the sheriff: E v HM Advocate 2002 SCCR 341; 2002 JC 215; (sub nom A J E v HM Advocate); 2002 SLT 715 Fox v HM Advocate 2002 SCCR 647 Hamilton v Byrne 1997 SCCR 547; 1997 SLT 1210 Holland v HM Advocate (PC) [2005] UKPC D1; 2005 SCCR 417; 2005 SC (PC) 3; 2005 SLT 56. Francis Kelly was charged on indictment in Glasgow Sheriff Court in the terms set out in the sheriff's judgment. He lodged minutes seeking dismissal of the indictment on the grounds that to proceed with the trial would be in breach of his right to a fair trial in terms of art 6 of the European Convention on Human Rights and would constitute oppression on the part of the Crown.
The minutes were heard on 6, 9 and 10 November 2009 by Sheriff Mitchell. For the prosecutor: Tollan PFD. For the accused: Lavery, Solicitor, Glasgow. On 13 November 2009 Sheriff Mitchell issued the following judgment.
Sheriff Mitchell Introduction [1] This is a pre-trial hearing in respect of two minutes lodged by the accused who has been indicted on two charges. The charges are in the following terms:
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'(1) [O]n 6 August 2009 at 103 Inglefield Street, Glasgow you Francis Kelly did conduct yourself in a disorderly manner, utter threats of violence, swear and commit a breach of the peace; you Francis Kelly, did commit this offence while on bail, having been granted bail on 19 December 2008 at Glasgow Sheriff Court and it will be proved in terms of section 96 of the Crime and Disorder Act 1998 that the aforesaid offence was racially aggravated; and (2) on 6 August 2009 at 103 Inglefield Street, Glasgow being a public place you Francis Kelly did have with you an article to which section 49 of the aftermentioned Act applies, namely a knife: contrary to the Criminal Law (Consolidation) (Scotland) Act 1995, section 49(1) you Francis Kelly did commit this offence while on bail, having been granted bail on 19 December 2008 at Glasgow Sheriff Court and it will be proved in terms of section 96 of the Crime and Disorder Act 1998 that the aforesaid offence was racially aggravated.'
[2] The minutes raise some interesting and concerning issues. Submissions were heard over the course of 6, 9 and 10 November 2009. The contention advanced on behalf of the accused, which was not accepted by the prosecutor, is that the prosecutor's case against the accused depends upon the identification of two civilian witnesses, namely Kamel Rabhi and Robert Friel, who are strangers to the accused. The prosecutor contends that there are other facts and circumstances upon which reliance can be placed and whilst that may or 2010 S.C.C.R. 86 at 88 may not be so, the case can be taken and considered upon the basis of the position advanced by the accused. [3] The first minute is a devolution minute. It is averred that it would be incompatible with the rights of the accused in terms of article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms for the Lord Advocate as prosecutor to seek to rely upon a 'dock' identification by the witness Robert Friel. [4] The second minute comprises an objection to the admissibility of evidence in terms of section 71(1) and 71(9) of the Criminal Procedure (Scotland) Act 1995. Objection is taken to any attempt by the prosecutor to ask the witness Robert Friel to 'identify the minuter'. Undisputed factual background [5] At the hearing it was not disputed that the prosecutor's case, as disclosed, is that both offences charged on the indictment were committed at approximately 3.45 pm on 6 August 2009 outside a garage at 103 Inglefield Street, Glasgow in presence of Mr Rabhi and Mr Friel. In disclosed statements both said that they were approached by a person and threatened: they saw the person had a knife. It was not in dispute that the police were contacted and that two police officers attended the locus about 4 pm. It was not in dispute that one of these officers, Craig Collier, took a statement from Mr Rabhi. He then took a statement by telephone from Mr Friel, who had left the locus.
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[6] It was not in dispute that two other officers, Jordan Kane and Kirsten McLatchie, responded to a call and went to Naveed's Store in Cathcart Road. They went there following upon a complaint about a man in a brown top, jeans and with a scar on his face who had a knife. It was not in dispute that this was a description similar to the information given in the report of the alleged incidents in Inglefield Street, which form the offences charged on the indictment. The parties were not agreed as to how far distant the locus of the offences libelled was from Naveed's Store in Cathcart Road, but both accepted that the distance between them was not considerable. [7] At all events, Jordan Kane and Kirsten McLatchie attended at Naveed's Store in Cathcart Road. They saw the accused nearby. He was detained in terms of section 50 of the Criminal Law (Consolidation) (Scotland) Act 1995 for the purposes of a weapon search. This was carried out with negative result. PC Collier contacted PC Kane by airphone and informed him that the person detained was the person who had been involved in the Inglefield Street incident. PC Collier told PC Kane that he had only a statement from one witness. The accused was detained in terms of section 14 of the 1995 Act in respect of the offences alleged in the indictment. [8] For the accused, Mr Lavery, Solicitor, Glasgow stated that PC Collier then telephoned PC Kane to say that Mr Friel had now given a statement identifying the accused. Mr Lavery pointed out that this was a gap and it was difficult to see how Mr Friel could have identified the accused over the telephone when the accused had not at any stage been viewed by Mr Friel subsequent to the alleged offences. Accused appears in court and his requests for an identification parade [9] Nevertheless, the accused was arrested and appeared in Glasgow Sheriff Court on petition on 7 August 2009. He was committed for further examination and remanded in custody. Mr Lavery emphasised that he had made it clear to the prosecutor from the outset that identification was the main point in issue in this case. By the time of full committal on 14 August 2009 no identification 2010 S.C.C.R. 86 at 89 parade had been held despite Mr Lavery's request for this to be done. Mr Lavery informed me that on 17 August 2009 an application by the accused for an identification parade in terms of section 290 of the 1995 Act was lodged. This called on 8 September 2009 and, despite opposition from prosecutor, was granted by Sheriff Deutsch. The prosecutor's reasons for not holding and opposing the holding of an identification parade [10] Initially, the procurator fiscal depute was unable to explain to the court why the prosecutor had decided not to hold an identification parade. However, on 10 November 2009 the prosecutor stated that the holding of an identification parade was at the prosecutor's discretion. She stated that it was considered by the prosecutor
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to be unnecessary and inappropriate to hold an identification parade in this case. The assessment had been made at the outset and the Crown decided not to hold one. When the defence applied to the court, the prosecutor's position was still that it was unnecessary and inappropriate to have an identification parade. Accordingly, the defence application had been opposed by the prosecutor before Sheriff Deutsch who had granted the application. Sheriff Deutsch's order [11] I have had sight of the order signed by Sheriff Deutsch on 8 September 2009. It states: 'The court having considered the foregoing petition and having heard the respondent in opposition to the foregoing petition, grants same and in terms thereof Orders the respondent to hold an identification parade in which the petitioner shall be one of those constituting the parade in relation to the offences referred to above with which the petitioner has been charged.' Why a VIPER parade was held [12] The procurator fiscal stated that on 17September 2009 the prosecutor instructed the police to hold an identification parade. It was explained that no specification was given by the procurator fiscal as to whether a traditional identification parade or a VIPER parade was to be held. It was explained that the default position was that a VIPER parade would be held unless otherwise specified. It was accepted that what it came to was that the prosecutor instructed the police to hold a VIPER parade. In obedience to the prosecutor's instruction the police made the necessary arrangements. The accused was videoed on 19 September 2009 for the purpose of preparing a video image. The witnesses Mr Rabhi and Mr Friel viewed the video image on 21 September 2009. Accused's solicitor not informed of VIPER parade arrangements by police [13] Mr Lavery stated that he was not informed by either the police or the prosecutor of the accused being required to attend for the purpose of being videoed. There is now a duty legal aid solicitor system in place for such identification parades. Instead of advising the accused's solicitor, Mr Lavery, the police contacted the duty solicitor, Mr Clark. Mr Lavery accepted that Mr Clark contacted him and that Mr Clark had attended at the identification parade. The accused [14] In order to give context to what follows, it is necessary to explain that as he presented in the dock of the court at the hearing before me, it was evident that the accused has two prominent scars on his face and neck. 2010 S.C.C.R. 86 at 90 The decision to hold a non-standard VIPER parade to pixcellate
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[15] The procurator fiscal depute stated that she had obtained information from the police officer in charge of this identification parade, namely DC Michael Mackinnon, and confirmed that Mr Clark was present at the VIPER parade and represented the accused. It was not in dispute that Mr Clark requested DC Mackinnon to pixcellate out these scars. DC Mackinnon was finding it difficult to find viable stand-in images for the parade and accordingly took the decision to carry out a 'non-standard VIPER parade'. VIPER is an acronym for Video Identification Parade Electronic Recording. I was informed that there is a company bearing that name involved in this type of work. Pixcellation, the Lord Advocate's Guidelines and the Assistant Chief Constable, Crime, Strathclyde Police [16] I am bound to confess that I was astonished to hear of this request to pixcellate out the accused's scars. And I am bound to confess I was even more astonished to learn that this request had been agreed to by the police officer in charge of the parade. However, Mr Lavery informed me that this was standard practice. After further research, the procurator fiscal depute produced the Lord Advocate's Guidelines to Chief Constables on the Conduct of Visual Identification Procedures. At p 11 there is a section headed 'Composition of a Video Identification Parade'. This section of the Lord Advocate's Guidelines is reproduced at Appendix I to this judgment. During the course of the hearing, I was given a copy of a memorandum by Mr Campbell Corrigan, Assistant Chief Constable, Crime, Strathclyde Police to divisional commanders and heads of departments dated 26 January 2009 which is reproduced at Appendix 2 to this judgment. Inter alia, it states:
'As you are aware, VIPER identification parades are increasingly being requested by the Crown Office and Procurator Fiscal Service (COPFS), in both solemn and summary proceedings. The increasing reliance by the Force on VIPER procedures results in a significant financial commitment. 'Following extensive consultation a decision has been taken to no longer undertake non-standard VIPER compilations including: · · Pixcellation procedures (covering of scars, tattoos, blemishes, etc) Replication procedures (creation of scars, tattoos, blemishes, etc).'
[17] Correspondence was produced to me relating to a separate case relating to a different accused, where, in a letter to a firm of solicitors dated 30 July 2009, the divisional procurator fiscal for Glasgow South Division made it clear that the memorandum from Strathclyde Police had not been discussed with COPFS. Whilst this is not relevant to the decision on the minutes lodged in this case, it is a matter of serious concern for this court to become aware that the Assistant Chief Constable of Strathclyde Police issued an instruction dated 26 January 2009, which appears effectively to instruct officers not to follow the Lord Advocate's Guidelines in relation to the conduct of visual identification parades. It is even more concerning that this was apparently done without authority from the Lord Advocate or even consultation with COPFS. This VIPER parade was held in accordance with Lord Advocate's Guidelines [18]
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For present purposes, it appears that Strathclyde Police subsequently had to revoke this policy change and that, at the time this identification parade was held, DC Mackinnon was acting in compliance with the Lord Advocate's Guidelines. It was common ground for me that the identification parade was 2010 S.C.C.R. 86 at 91 carried out in accordance with the Lord Advocate's Guidelines. However, it must be made clear that it was a pixcellated image of the accused which was viewed by both witnesses. What happened at the identification parade [19] It was not in dispute that at the identification parade Mr Rabhi identified the accused. Mr Friel did not identify the accused but did identify a stand-in at No 9. [20] The identification parade report shows that Mr Friel was asked, 'If the person you saw on 6 August 2009 and later referred to in your statement to the police appeared on the images shown, please tell me his number, picture, symbol.' Mr Friel replied, 'It looks like 9 but I couldn't swear by it. I only know he has a scar on his face and on his neck. He looks like 9.' The parade report instructs that where the witness makes a positive identification, the officer must show the image of the person identified again. Image 9 was returned to the screen and Mr Friel was asked, 'Is this the person you were referring to when you made the identification?' Mr Friel replied, 'Aye, if I seen the guy in the flesh I would know better, to be honest with you.' For completeness, the accused's pixcellated image was No 5. [21] Neither Mr Lavery nor the procurator fiscal depute was able to inform me whether either of the witnesses, Mr Rabhi or Mr Friel, knew that any of the images they viewed had been pixcellated. After his participation in the VIPER parade, Mr Friel was again interviewed. A statement was taken from him by a DC Buxton on 21 September 2009 at 16.35 hours. The statement states:
'I have already given a statement to the police. At about 16.25 hours on Monday, 29 September 2009 I attended at Govan Police Office when I viewed a video identification parade electronic recording... I saw the person to whom I referred in my statement. He was at position 9. I can identify him again.'
Submissions on behalf of the accused [22] Mr Lavery stressed that identification was the principal issue in this case. Mr Friel was a principal plank in the prosecutor's case and not only had he failed to identify the accused at the identification parade, but also he had identified a stand-in and, in a statement taken shortly thereafter, confirmed this position to another police officer (DC Buxton) and, moreover, asserted that he could identify this person again. [23]
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Mr Lavery submitted that it would be very prejudicial, unfair and downright dangerous for the prosecutor to ask any question of Mr Friel seeking to elicit a dock identification. Mr Friel's identification had been tested at the identification parade and afterwards he had confirmed the correctness of his identification to the police officer who had interviewed him at that time. Mr Lavery submitted that both minutes should be granted for the separate reasons contained therein. He referred extensively to the decision of the Judicial Committee of the Privy Council in Holland v HM Advocate (PC). He referred to the opinion of Lord Rodger of Earlsferry at paragraph 57 wherein his Lordship stated:
'I respectfully agree that, except in an extreme case, there is no basis, either in domestic law or in the Convention for regarding such evidence [ie of dock identification] as inadmissible per se.'
Mr Lavery submitted that this was such an extreme case. The potential dangers of dock identification were fully recognised and referred to by Lord 2010 S.C.C.R. 86 at 92 Rodger of Earlsferry between paragraphs 47 and 56. Under reference to paragraph 41, Mr Lavery pointed out that, in an extreme case, a judge could conclude that admitting dock identification evidence would inevitably render the trial unfair. This was, in his submission, such a case. Here the identification of the accused person as the perpetrator was the principal disputed issue at the trial and having regard to the history and what happened at the identification parade, it would be dangerous to allow evidence of dock identification by Mr Friel to be admitted at the trial. Moreover, as this was an extreme case, it was contrary to the accused's article 6(1) rights and the devolution minute should be sustained. [24] Mr Lavery, under reference to paragraphs 41 and 42 of the opinion of Lord Rodger of Earlsferry, stated that the Lord Advocate sought to rely upon the evidence of Mr Friel as 'a principal plank in the case against the accused'. He drew attention to paragraphs 47-55 (inclusive) and to the dangers of dock identification evidence, which were well recognised. Here there had been compliance with the Lord Advocate's Guidelines and with the terms of section 290(1) of the 1995 Act. Mr Friel had given a statement confirming his identification. He had not alleged that he had been upset or fearful at the identification parade or anything of that sort. The facts of this case could be distinguished from the facts in Holland, where there was significant other evidence. In Mr Lavery's submission this was an extreme case where the court would be entitled to refuse to admit the evidence of dock identification and where it would be a breach of the accused's article 6 rights for the matter to proceed to trial. Mr Lavery pointed out that the prosecutor by refusing to hold an identification parade and then opposing an identification parade being held at the instance of the accused had not followed the clear guidance set out in the case of Holland. Reference was made to the opinion of Lord Hope of Craighead at paragraph 6 wherein his Lordship stated:
'Particular care must of course be taken, where identification is likely to be a real issue in the case, to ensure that the way the evidence is obtained and presented is compatible with the accused's article 6(1) right to a fair trial. Guidance as to what is and what is not unfair is to be found in the Second Report of the Thomson Committee, 1975 (Cmnd) 6218.'
The court had ordered an identification parade and this had been held. Mr Friel did not identify the accused but did positively identify a stand-in, an identification which he confirmed to DC Buxton shortly thereafter and stated that he could identify him again. Mr Lavery stressed that when regard was had to the circumstances in which this case was handled by the police from the outset it was clear that there had been no attempt to clarify the identification at the material time. Neither Mr Rabhi nor Mr Friel saw the accused when he was detained by the police. No identification parade was held until the court ordered one. Taking account of all these circumstances and what was contained in Lord Rodger's opinion, and having regard to the real danger that the accused may be identified in court because he has scars, the devolution minute should be
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sustained. [25] So far as the other minute was concerned, although the minute did not go so far as to state oppression, it was submitted that this was clearly implied and that the minute was intended to be not only a challenge to admissibility but [also] a plea in bar of trial. Here it would be both oppressive and unfair to the accused to allow the trial to proceed when the case against the accused depended upon the Crown obtaining a dock identification of the accused from Mr Friel. It should have been obvious that this case was one which was 'crying 2010 S.C.C.R. 86 at 93 out' for identification to be checked. Reference was made in particular to paragraph 44 of Lord Rodger of Earlsferry's opinion, [where] on 11 May 2005 Lord Rodger had stated:
'Moreover [the advocate depute] told us that Scottish police forces are introducing the VIPER identification system, which is based on a library of moving computer images and which does away with the need 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 possible stage.'
But identifications had simply not been checked here at the earliest possible stage for reasons which were very difficult to understand. Mr Lavery referred to the decision of Lord Hamilton (as he then was) in Fox v HM Advocate at paragraph 7. Applying the test set out there the issue was whether there were special circumstances such as to satisfy the court that having regard to the principles of substantive justice and of fair trial to require an accused to face trial would be oppressive. Each case turned on its own circumstances and here there were exceptional and special circumstances. Mr Lavery submitted that no amount of cross-examination, however effective, and/or appropriate direction by the trial sheriff could remove the obvious danger of unfairness to the accused. Because of the way the prosecutor had approached this case and what happened at the identification parade, it was unfair and oppressive to allow evidence of dock identification to be admitted. There was a grave danger of unfairness and prejudice. If the prosecutor was allowed to lead the evidence of Mr Friel and he made a dock identification, the presiding sheriff would be left in an impossible situation in trying to properly direct the jury. It was unfortunately the case that in Glasgow there were people with scars; and brown T-shirts and jeans were not uncommon types of clothing. For all these reasons the second minute should be sustained. Submissions on behalf of the prosecutor [26] The procurator fiscal depute's submission was that the Crown were entitled to conclude that it was unnecessary and inappropriate to hold an identification parade. The prosecutor had a discretion as to whether to instruct the police to hold an identification parade. Here, a parade was not held in the discretion of the prosecutor and, similarly, a decision was taken to oppose the defence motion. Sheriff Deutsch had granted the order to hold an identification parade and one was held in compliance with section 290(1) of the 1995 Act and also in accordance with the Lord Advocate's Guidelines. The procurator fiscal depute submitted that the devolution minute submitted by the accused could not properly be considered at this stage. The issue was one for the appeal court to determine after considering all the relevant aspects of the trial. In this connection, the depute referred to paragraph 41 of the opinion of Lord Rodger of Earlsferry in Holland. She also went on to submit that whether this was an extreme case might be a matter for the judge at the trial. At all events, the procurator fiscal's submission was that contrary to Mr Lavery's contention, this was not an exceptional case. She contrasted the circumstances of the Holland case with the present circumstances and pointed out that Lord Rodger and the other judges held that the trial judge in Holland was
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right to reject the defence submission. Dock identification was competent as the decision in Holland made clear. It was permissible to lead evidence of dock identification where the witness had not identified at an identification parade. This was what the Crown sought to do in this particular case. There was no fundamental objection to 2010 S.C.C.R. 86 at 94 the practice of dock identification. In Holland the Board were concerned only with the issues in a case where identification was a live issue at the trial and the Crown witness who identified the accused in court had previously failed to pick him out an identification parade: see paragraph 46. At paragraph 57 Lord Rodger of Earlsferry had agreed that except perhaps in an extreme case there was no basis in either domestic law or in the Convention for regarding dock identification evidence as inadmissible in itself. For the prosecutor to seek to enquire of Mr Friel at the trial whether he could identify the perpetrator was not contrary to article 6(1): Holland. The safeguards against unfairness were fully dealt with by Lord Rodger at paragraphs 57 and 58. In any event, there was other evidence, namely that the accused was found near the locus by other officers and that he was dressed in a way which fitted with the descriptions given by both civilian witnesses. The second minute had given no notice of the contention of oppression and the procurator fiscal depute declined to make any further submission on that matter. She added that there was no unfairness by leading the evidence because of the safeguards referred to at paragraphs 57 and 58 to which she had earlier referred. The procurator fiscal depute submitted that the minutes should be refused. Discussion [27] Having considered the competing submissions advanced to me and all the information put before me, I am bound to express some disquiet at the way it appears this case was dealt with by the police and by the prosecutor. In 2005 Lord Rodger said in Holland at paragraph 44, 'In future, there should be even less reason than hitherto for not having identifications checked at the earliest possible stage.' The charges here have been prosecuted upon indictment. It was not disputed by the procurator fiscal depute that after the accused was detained neither of the civilian witnesses had had an opportunity to see him until the parade which took place following Sheriff Deutsch's order. I simply do not understand why it was considered to be unnecessary and inappropriate to hold an identification parade in this case. No reason was advanced to me for not having the identifications of witnesses checked at the earliest possible stage, particularly where the accused had been remanded in custody. [28] Whilst I was referred eventually to the Lord Advocate's Guidelines as contained in Appendix 1, no explanation was advanced as to any advice upon which the instructions therein contained were based. It is perfectly plain that, if a witness says the person concerned was wearing a red pullover, it would be wrong if the suspect or accused person was the only image wearing a red pullover. But it might well be appropriate, in order to assist the witness, that all images were depicted wearing a red pullover. But it does, in my respectful view, appear to be something of an affront to common sense to pixcellate out scars of the accused or suspect where a witness makes it clear that the scars are part of his memory of the perpetrator. It is clear from the memorandum from the Assistant Chief Constable, Crime, Strathclyde Police dated 26 January 2009 that it is technologically possible to pixcellate in as well as to pixcellate out. It would, of course, be inappropriate for a suspect or accused person to be the only person with a scar. It is not necessary for me to decide whether there has been compliance with the order made by Sheriff Deutsch in terms of section 290(1) of the 1995 Act. Accordingly, I shall reserve my view as to whether in the circumstances here it can be said that the prosecutor has held an identification parade in which the accused shall be one of those constituting the parade, when the images of him was with his scars pixcellated out. For completeness, I should add that it was not contended by the procurator fiscal depute that it 2010 S.C.C.R. 86 at 95
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was unnecessary and inappropriate to hold an identification parade because compliance with the Lord Advocate's Guidelines would have resulted in the pixcellation of the accused's scarring. The procurator fiscal depute did not make complaint about the pixcellation of the accused's scars. [29] I incline to the view that it would have been appropriate in this case to have held the VIPER parade with the accused's image representing his actual physical condition at the time when the image was taken and pixcellation of other stand-ins by adding similar scarring to their images. I am very uneasy about the concept of an accused or suspect not being truly and accurately represented in a video image because certain of his features have been, to use a colloquial term, airbrushed or pixcellated out. Decision [30] So far as the devolution minute is concerned, whilst I recognise that there was considerable non-identification evidence in Holland, I cannot regard this case as an extreme case of the type referred to by Lord Rodger of Earlsferry at paragraph 57 of his opinion. I reserve my position as to what my decision might have been as regards an exceptional case had the prosecutor's case depended upon an identification of the accused by Mr Friel; a true and accurate image of the accused had been shown to Mr Friel; he had identified the stand-in at No 9; and then made the statement which he did to DC Buxton. It respectfully seems to me that having regard to the opinions, expressed in Holland, particularly by Lord Rodger of Earlsferry, but also by Lord Hope of Craighead, dock identifications cannot be said to be unfair per se and are not inadmissible. Article 6(1) entitles the accused to a fair trial. Under reference to paragraphs 38-42, it is clear that the question of whether the accused had a fair trial has to be determined after the event. In my judgment, it is not possible in this case to determine at this stage that the accused could not have had a fair trial. The judge may very well be able to give adequate and sufficient directions so as to remove any risk of prejudice. [31] Moreover, it may be that in an appropriate case the trial judge has power to withdraw a particular charge from the jury's consideration on the basis that no reasonable jury, properly directed, could return a verdict of guilty. In E v HM Advocate Lord Justice Clerk Gill said at paragraphs 29-30:
'While this is not a court of review and while we are not at liberty under this provision to disturb a jury verdict merely because we disagree with it, we cannot now regard the issue of reasonable doubt as being at all times within the exclusive preserve of the jury. '...The court has to make a judgment on the evidence that the jury heard and assess the reasonableness of the verdict with the benefit of its collective knowledge and experience.'
In delivering the Apex Scotland Annual Lecture entitled, 'The Changing Role of the High Court Judge' in the Signet Library, Edinburgh on 12 September 2006, The Rt Hon Lord Cullen of Whitekirk referred to the passage in Lord Justice Clerk Gill's opinion and stated:
'That passage makes an important point as to the boundary between the province of juries and that of judges. While it relates to the appeal court, it is logical that it should apply also to the trial judge, in a situation where, exceptionally, it was clear that this ground would apply. If so, it follows that he would direct the jury to acquit.'
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[32] For all the above reasons the devolution minute cannot be sustained. 2010 S.C.C.R. 86 at 96 [33] The other minute relates principally to admissibility of evidence and, having regard to the opinions expressed in Holland, evidence of dock identification is not inadmissible per se. So far as the oppression point taken as a plea in bar of trial is concerned, I cannot hold that there has been prejudice so grave as to be incapable of being removed by an appropriate direction to the jury or by other appropriate action on the part of the trial judge so as to give the accused a fair trial. I simply refer to what I have said in the preceding paragraphs. I am entirely conscious that the mere fact that the prosecutor may have behaved prior to the trial in a way of which the judge or sheriff may disapprove, does not entitle the judge or sheriff to sustain a plea of oppression: Hamilton v Byrne; and see Renton and Brown's Criminal Procedure, paragraph 9-21 ,footnote 3 and other cases cited there. [34] In my judgment, it is possible for the accused to receive a fair trial and as the matter of whether he does can be reviewed in the appeal court or beyond, I have no alternative but to refuse these minutes as I cannot properly hold this to be an instance of the extreme case referred to by Lord Rodger of Earlsferry in his opinion in Holland. 2010 S.C.C.R. 86 COMMENTARY It is unfortunate, from the point of view of the law, albeit not of the accused, that the trial was abandoned. The appeal court will, however, at some stage have the opportunity of considering VIPER parades and the practice of pixcellation. It certainly seems odd, not to say remarkably generous on the part of the police, to remove the feature by which a witneess says he can identify the perpetrator, even if the course recommended by the sheriff would be more expensive. I'm not sure what would have happened in an old-fashioned parade with real people, but the situation can hardly be novel. I understand that consultations are being held by the police and the Crown on the problem of pixcellation. Note: The trial was abandoned after one witness stated that he did not see or hear anything.
Scottish Criminal Case Reports/2010/HER MAJESTY'S ADVOCATE Prosecutor against FRANCIS KELLY Accused - 2010 S.C.C.R. 86
HER MAJESTY'S ADVOCATE Prosecutor against FRANCIS KELLY Accused
2010 S.C.C.R. 86
First Diet Sheriff Court, Glasgow 13 November 2009 Evidence--Identification of accused--Dock identification--Witness identifying stand-in at VIPER parade--Crown proposing to call witness at trial in hope of obtaining dock identification--Whether evidence would be inadmissible as unfair Devolution issue--Evidence--Identification of accused--Dock identification--Witness identifying stand-in at VIPER parade--Crown proposing to call witness at trial in hope of obtaining dock identification--Whether compatible with right to fair trial--European Convention on Human Rights, art 6 Evidence--Identification of accused--VIPER parade--Pixcellation--Observations on practice The accused was charged on indictment with, inter alia, a breach of the peace. The incident had apparently been witnessed by two people, one of whom, F, had left the locus by the time the police arrived, but later gave a statement by telephone.. The accused was detained by two police officers unconnected with the case who were then informed by the officer investigating the case that the accused was the person involved in the incident. He was accordingly charged and appeared on petition. The Crown refused a request by the defence to hold an identification parade and the defence obtained an order from a sheriff that a parade should be held in which the acccused 'shall be one of those constituting the parade'. The accused had two prominent scars, and a VIPER parade was held using an image of him in which these scars had been pixcellated out. F did not identify the accused but picked out the image of another person, saying that the perpetrator looked like him, 'but I couldn't swear by it. I only know that he has a scar on his face and on his neck'. The accused lodged a devolution minute and one containing a plea in bar of trial on the grounds that it would be contrary to art 6 and oppressive for the Crown to rely on a dock identification by F. These issues were dealt with at a first diet. Held (1) that dock identification was not per se unfair and inadmissible, that whether a trial was fair in terms of art 6 had to be determined after the event and that it was not possible at this stage to say that the accused could not have a fair trial (para 30); (2) that there had not been prejudice so grave as to be incapable of being removed by an appropriate direction to the jury or other appropriate action by the trial judge to give the accused a fair trial (para 33); and (3) that as the matter of whether the accused received a fair trial could be reviewed in the appeal court or beyond, the court had no alternative but to refuse the minutes (para 34); and minutes refused.
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Opinion reserved on whether the parade was in compliance with the sheriff's order (para 28). Observed that it would have been appropriate to have held the parade using the accused's image representing his actual physical condition at the time when 2010 S.C.C.R. 86 at 87 it was taken and pixcellation of other stand-ins by adding similar scarring to their images, the court being very uneasy about the concept of an accused or suspect not being truly and accurately represented in a video image because certain of his features have been airbrushed or pixcellated out (para 29). Holland v HM Advocate (PC) [2005] UKPC D1; 2005 SCCR 417; 2005 SC (PC) 3; 2005 SLT 56 considered. Cases referred to in the opinion of the sheriff: E v HM Advocate 2002 SCCR 341; 2002 JC 215; (sub nom A J E v HM Advocate); 2002 SLT 715 Fox v HM Advocate 2002 SCCR 647 Hamilton v Byrne 1997 SCCR 547; 1997 SLT 1210 Holland v HM Advocate (PC) [2005] UKPC D1; 2005 SCCR 417; 2005 SC (PC) 3; 2005 SLT 56. Francis Kelly was charged on indictment in Glasgow Sheriff Court in the terms set out in the sheriff's judgment. He lodged minutes seeking dismissal of the indictment on the grounds that to proceed with the trial would be in breach of his right to a fair trial in terms of art 6 of the European Convention on Human Rights and would constitute oppression on the part of the Crown.
The minutes were heard on 6, 9 and 10 November 2009 by Sheriff Mitchell. For the prosecutor: Tollan PFD. For the accused: Lavery, Solicitor, Glasgow. On 13 November 2009 Sheriff Mitchell issued the following judgment.
Sheriff Mitchell Introduction [1] This is a pre-trial hearing in respect of two minutes lodged by the accused who has been indicted on two charges. The charges are in the following terms:
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'(1) [O]n 6 August 2009 at 103 Inglefield Street, Glasgow you Francis Kelly did conduct yourself in a disorderly manner, utter threats of violence, swear and commit a breach of the peace; you Francis Kelly, did commit this offence while on bail, having been granted bail on 19 December 2008 at Glasgow Sheriff Court and it will be proved in terms of section 96 of the Crime and Disorder Act 1998 that the aforesaid offence was racially aggravated; and (2) on 6 August 2009 at 103 Inglefield Street, Glasgow being a public place you Francis Kelly did have with you an article to which section 49 of the aftermentioned Act applies, namely a knife: contrary to the Criminal Law (Consolidation) (Scotland) Act 1995, section 49(1) you Francis Kelly did commit this offence while on bail, having been granted bail on 19 December 2008 at Glasgow Sheriff Court and it will be proved in terms of section 96 of the Crime and Disorder Act 1998 that the aforesaid offence was racially aggravated.'
[2] The minutes raise some interesting and concerning issues. Submissions were heard over the course of 6, 9 and 10 November 2009. The contention advanced on behalf of the accused, which was not accepted by the prosecutor, is that the prosecutor's case against the accused depends upon the identification of two civilian witnesses, namely Kamel Rabhi and Robert Friel, who are strangers to the accused. The prosecutor contends that there are other facts and circumstances upon which reliance can be placed and whilst that may or 2010 S.C.C.R. 86 at 88 may not be so, the case can be taken and considered upon the basis of the position advanced by the accused. [3] The first minute is a devolution minute. It is averred that it would be incompatible with the rights of the accused in terms of article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms for the Lord Advocate as prosecutor to seek to rely upon a 'dock' identification by the witness Robert Friel. [4] The second minute comprises an objection to the admissibility of evidence in terms of section 71(1) and 71(9) of the Criminal Procedure (Scotland) Act 1995. Objection is taken to any attempt by the prosecutor to ask the witness Robert Friel to 'identify the minuter'. Undisputed factual background [5] At the hearing it was not disputed that the prosecutor's case, as disclosed, is that both offences charged on the indictment were committed at approximately 3.45 pm on 6 August 2009 outside a garage at 103 Inglefield Street, Glasgow in presence of Mr Rabhi and Mr Friel. In disclosed statements both said that they were approached by a person and threatened: they saw the person had a knife. It was not in dispute that the police were contacted and that two police officers attended the locus about 4 pm. It was not in dispute that one of these officers, Craig Collier, took a statement from Mr Rabhi. He then took a statement by telephone from Mr Friel, who had left the locus.
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[6] It was not in dispute that two other officers, Jordan Kane and Kirsten McLatchie, responded to a call and went to Naveed's Store in Cathcart Road. They went there following upon a complaint about a man in a brown top, jeans and with a scar on his face who had a knife. It was not in dispute that this was a description similar to the information given in the report of the alleged incidents in Inglefield Street, which form the offences charged on the indictment. The parties were not agreed as to how far distant the locus of the offences libelled was from Naveed's Store in Cathcart Road, but both accepted that the distance between them was not considerable. [7] At all events, Jordan Kane and Kirsten McLatchie attended at Naveed's Store in Cathcart Road. They saw the accused nearby. He was detained in terms of section 50 of the Criminal Law (Consolidation) (Scotland) Act 1995 for the purposes of a weapon search. This was carried out with negative result. PC Collier contacted PC Kane by airphone and informed him that the person detained was the person who had been involved in the Inglefield Street incident. PC Collier told PC Kane that he had only a statement from one witness. The accused was detained in terms of section 14 of the 1995 Act in respect of the offences alleged in the indictment. [8] For the accused, Mr Lavery, Solicitor, Glasgow stated that PC Collier then telephoned PC Kane to say that Mr Friel had now given a statement identifying the accused. Mr Lavery pointed out that this was a gap and it was difficult to see how Mr Friel could have identified the accused over the telephone when the accused had not at any stage been viewed by Mr Friel subsequent to the alleged offences. Accused appears in court and his requests for an identification parade [9] Nevertheless, the accused was arrested and appeared in Glasgow Sheriff Court on petition on 7 August 2009. He was committed for further examination and remanded in custody. Mr Lavery emphasised that he had made it clear to the prosecutor from the outset that identification was the main point in issue in this case. By the time of full committal on 14 August 2009 no identification 2010 S.C.C.R. 86 at 89 parade had been held despite Mr Lavery's request for this to be done. Mr Lavery informed me that on 17 August 2009 an application by the accused for an identification parade in terms of section 290 of the 1995 Act was lodged. This called on 8 September 2009 and, despite opposition from prosecutor, was granted by Sheriff Deutsch. The prosecutor's reasons for not holding and opposing the holding of an identification parade [10] Initially, the procurator fiscal depute was unable to explain to the court why the prosecutor had decided not to hold an identification parade. However, on 10 November 2009 the prosecutor stated that the holding of an identification parade was at the prosecutor's discretion. She stated that it was considered by the prosecutor
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to be unnecessary and inappropriate to hold an identification parade in this case. The assessment had been made at the outset and the Crown decided not to hold one. When the defence applied to the court, the prosecutor's position was still that it was unnecessary and inappropriate to have an identification parade. Accordingly, the defence application had been opposed by the prosecutor before Sheriff Deutsch who had granted the application. Sheriff Deutsch's order [11] I have had sight of the order signed by Sheriff Deutsch on 8 September 2009. It states: 'The court having considered the foregoing petition and having heard the respondent in opposition to the foregoing petition, grants same and in terms thereof Orders the respondent to hold an identification parade in which the petitioner shall be one of those constituting the parade in relation to the offences referred to above with which the petitioner has been charged.' Why a VIPER parade was held [12] The procurator fiscal stated that on 17September 2009 the prosecutor instructed the police to hold an identification parade. It was explained that no specification was given by the procurator fiscal as to whether a traditional identification parade or a VIPER parade was to be held. It was explained that the default position was that a VIPER parade would be held unless otherwise specified. It was accepted that what it came to was that the prosecutor instructed the police to hold a VIPER parade. In obedience to the prosecutor's instruction the police made the necessary arrangements. The accused was videoed on 19 September 2009 for the purpose of preparing a video image. The witnesses Mr Rabhi and Mr Friel viewed the video image on 21 September 2009. Accused's solicitor not informed of VIPER parade arrangements by police [13] Mr Lavery stated that he was not informed by either the police or the prosecutor of the accused being required to attend for the purpose of being videoed. There is now a duty legal aid solicitor system in place for such identification parades. Instead of advising the accused's solicitor, Mr Lavery, the police contacted the duty solicitor, Mr Clark. Mr Lavery accepted that Mr Clark contacted him and that Mr Clark had attended at the identification parade. The accused [14] In order to give context to what follows, it is necessary to explain that as he presented in the dock of the court at the hearing before me, it was evident that the accused has two prominent scars on his face and neck. 2010 S.C.C.R. 86 at 90 The decision to hold a non-standard VIPER parade to pixcellate
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[15] The procurator fiscal depute stated that she had obtained information from the police officer in charge of this identification parade, namely DC Michael Mackinnon, and confirmed that Mr Clark was present at the VIPER parade and represented the accused. It was not in dispute that Mr Clark requested DC Mackinnon to pixcellate out these scars. DC Mackinnon was finding it difficult to find viable stand-in images for the parade and accordingly took the decision to carry out a 'non-standard VIPER parade'. VIPER is an acronym for Video Identification Parade Electronic Recording. I was informed that there is a company bearing that name involved in this type of work. Pixcellation, the Lord Advocate's Guidelines and the Assistant Chief Constable, Crime, Strathclyde Police [16] I am bound to confess that I was astonished to hear of this request to pixcellate out the accused's scars. And I am bound to confess I was even more astonished to learn that this request had been agreed to by the police officer in charge of the parade. However, Mr Lavery informed me that this was standard practice. After further research, the procurator fiscal depute produced the Lord Advocate's Guidelines to Chief Constables on the Conduct of Visual Identification Procedures. At p 11 there is a section headed 'Composition of a Video Identification Parade'. This section of the Lord Advocate's Guidelines is reproduced at Appendix I to this judgment. During the course of the hearing, I was given a copy of a memorandum by Mr Campbell Corrigan, Assistant Chief Constable, Crime, Strathclyde Police to divisional commanders and heads of departments dated 26 January 2009 which is reproduced at Appendix 2 to this judgment. Inter alia, it states:
'As you are aware, VIPER identification parades are increasingly being requested by the Crown Office and Procurator Fiscal Service (COPFS), in both solemn and summary proceedings. The increasing reliance by the Force on VIPER procedures results in a significant financial commitment. 'Following extensive consultation a decision has been taken to no longer undertake non-standard VIPER compilations including: · · Pixcellation procedures (covering of scars, tattoos, blemishes, etc) Replication procedures (creation of scars, tattoos, blemishes, etc).'
[17] Correspondence was produced to me relating to a separate case relating to a different accused, where, in a letter to a firm of solicitors dated 30 July 2009, the divisional procurator fiscal for Glasgow South Division made it clear that the memorandum from Strathclyde Police had not been discussed with COPFS. Whilst this is not relevant to the decision on the minutes lodged in this case, it is a matter of serious concern for this court to become aware that the Assistant Chief Constable of Strathclyde Police issued an instruction dated 26 January 2009, which appears effectively to instruct officers not to follow the Lord Advocate's Guidelines in relation to the conduct of visual identification parades. It is even more concerning that this was apparently done without authority from the Lord Advocate or even consultation with COPFS. This VIPER parade was held in accordance with Lord Advocate's Guidelines [18]
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For present purposes, it appears that Strathclyde Police subsequently had to revoke this policy change and that, at the time this identification parade was held, DC Mackinnon was acting in compliance with the Lord Advocate's Guidelines. It was common ground for me that the identification parade was 2010 S.C.C.R. 86 at 91 carried out in accordance with the Lord Advocate's Guidelines. However, it must be made clear that it was a pixcellated image of the accused which was viewed by both witnesses. What happened at the identification parade [19] It was not in dispute that at the identification parade Mr Rabhi identified the accused. Mr Friel did not identify the accused but did identify a stand-in at No 9. [20] The identification parade report shows that Mr Friel was asked, 'If the person you saw on 6 August 2009 and later referred to in your statement to the police appeared on the images shown, please tell me his number, picture, symbol.' Mr Friel replied, 'It looks like 9 but I couldn't swear by it. I only know he has a scar on his face and on his neck. He looks like 9.' The parade report instructs that where the witness makes a positive identification, the officer must show the image of the person identified again. Image 9 was returned to the screen and Mr Friel was asked, 'Is this the person you were referring to when you made the identification?' Mr Friel replied, 'Aye, if I seen the guy in the flesh I would know better, to be honest with you.' For completeness, the accused's pixcellated image was No 5. [21] Neither Mr Lavery nor the procurator fiscal depute was able to inform me whether either of the witnesses, Mr Rabhi or Mr Friel, knew that any of the images they viewed had been pixcellated. After his participation in the VIPER parade, Mr Friel was again interviewed. A statement was taken from him by a DC Buxton on 21 September 2009 at 16.35 hours. The statement states:
'I have already given a statement to the police. At about 16.25 hours on Monday, 29 September 2009 I attended at Govan Police Office when I viewed a video identification parade electronic recording... I saw the person to whom I referred in my statement. He was at position 9. I can identify him again.'
Submissions on behalf of the accused [22] Mr Lavery stressed that identification was the principal issue in this case. Mr Friel was a principal plank in the prosecutor's case and not only had he failed to identify the accused at the identification parade, but also he had identified a stand-in and, in a statement taken shortly thereafter, confirmed this position to another police officer (DC Buxton) and, moreover, asserted that he could identify this person again. [23]
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Mr Lavery submitted that it would be very prejudicial, unfair and downright dangerous for the prosecutor to ask any question of Mr Friel seeking to elicit a dock identification. Mr Friel's identification had been tested at the identification parade and afterwards he had confirmed the correctness of his identification to the police officer who had interviewed him at that time. Mr Lavery submitted that both minutes should be granted for the separate reasons contained therein. He referred extensively to the decision of the Judicial Committee of the Privy Council in Holland v HM Advocate (PC). He referred to the opinion of Lord Rodger of Earlsferry at paragraph 57 wherein his Lordship stated:
'I respectfully agree that, except in an extreme case, there is no basis, either in domestic law or in the Convention for regarding such evidence [ie of dock identification] as inadmissible per se.'
Mr Lavery submitted that this was such an extreme case. The potential dangers of dock identification were fully recognised and referred to by Lord 2010 S.C.C.R. 86 at 92 Rodger of Earlsferry between paragraphs 47 and 56. Under reference to paragraph 41, Mr Lavery pointed out that, in an extreme case, a judge could conclude that admitting dock identification evidence would inevitably render the trial unfair. This was, in his submission, such a case. Here the identification of the accused person as the perpetrator was the principal disputed issue at the trial and having regard to the history and what happened at the identification parade, it would be dangerous to allow evidence of dock identification by Mr Friel to be admitted at the trial. Moreover, as this was an extreme case, it was contrary to the accused's article 6(1) rights and the devolution minute should be sustained. [24] Mr Lavery, under reference to paragraphs 41 and 42 of the opinion of Lord Rodger of Earlsferry, stated that the Lord Advocate sought to rely upon the evidence of Mr Friel as 'a principal plank in the case against the accused'. He drew attention to paragraphs 47-55 (inclusive) and to the dangers of dock identification evidence, which were well recognised. Here there had been compliance with the Lord Advocate's Guidelines and with the terms of section 290(1) of the 1995 Act. Mr Friel had given a statement confirming his identification. He had not alleged that he had been upset or fearful at the identification parade or anything of that sort. The facts of this case could be distinguished from the facts in Holland, where there was significant other evidence. In Mr Lavery's submission this was an extreme case where the court would be entitled to refuse to admit the evidence of dock identification and where it would be a breach of the accused's article 6 rights for the matter to proceed to trial. Mr Lavery pointed out that the prosecutor by refusing to hold an identification parade and then opposing an identification parade being held at the instance of the accused had not followed the clear guidance set out in the case of Holland. Reference was made to the opinion of Lord Hope of Craighead at paragraph 6 wherein his Lordship stated:
'Particular care must of course be taken, where identification is likely to be a real issue in the case, to ensure that the way the evidence is obtained and presented is compatible with the accused's article 6(1) right to a fair trial. Guidance as to what is and what is not unfair is to be found in the Second Report of the Thomson Committee, 1975 (Cmnd) 6218.'
The court had ordered an identification parade and this had been held. Mr Friel did not identify the accused but did positively identify a stand-in, an identification which he confirmed to DC Buxton shortly thereafter and stated that he could identify him again. Mr Lavery stressed that when regard was had to the circumstances in which this case was handled by the police from the outset it was clear that there had been no attempt to clarify the identification at the material time. Neither Mr Rabhi nor Mr Friel saw the accused when he was detained by the police. No identification parade was held until the court ordered one. Taking account of all these circumstances and what was contained in Lord Rodger's opinion, and having regard to the real danger that the accused may be identified in court because he has scars, the devolution minute should be
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sustained. [25] So far as the other minute was concerned, although the minute did not go so far as to state oppression, it was submitted that this was clearly implied and that the minute was intended to be not only a challenge to admissibility but [also] a plea in bar of trial. Here it would be both oppressive and unfair to the accused to allow the trial to proceed when the case against the accused depended upon the Crown obtaining a dock identification of the accused from Mr Friel. It should have been obvious that this case was one which was 'crying 2010 S.C.C.R. 86 at 93 out' for identification to be checked. Reference was made in particular to paragraph 44 of Lord Rodger of Earlsferry's opinion, [where] on 11 May 2005 Lord Rodger had stated:
'Moreover [the advocate depute] told us that Scottish police forces are introducing the VIPER identification system, which is based on a library of moving computer images and which does away with the need 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 possible stage.'
But identifications had simply not been checked here at the earliest possible stage for reasons which were very difficult to understand. Mr Lavery referred to the decision of Lord Hamilton (as he then was) in Fox v HM Advocate at paragraph 7. Applying the test set out there the issue was whether there were special circumstances such as to satisfy the court that having regard to the principles of substantive justice and of fair trial to require an accused to face trial would be oppressive. Each case turned on its own circumstances and here there were exceptional and special circumstances. Mr Lavery submitted that no amount of cross-examination, however effective, and/or appropriate direction by the trial sheriff could remove the obvious danger of unfairness to the accused. Because of the way the prosecutor had approached this case and what happened at the identification parade, it was unfair and oppressive to allow evidence of dock identification to be admitted. There was a grave danger of unfairness and prejudice. If the prosecutor was allowed to lead the evidence of Mr Friel and he made a dock identification, the presiding sheriff would be left in an impossible situation in trying to properly direct the jury. It was unfortunately the case that in Glasgow there were people with scars; and brown T-shirts and jeans were not uncommon types of clothing. For all these reasons the second minute should be sustained. Submissions on behalf of the prosecutor [26] The procurator fiscal depute's submission was that the Crown were entitled to conclude that it was unnecessary and inappropriate to hold an identification parade. The prosecutor had a discretion as to whether to instruct the police to hold an identification parade. Here, a parade was not held in the discretion of the prosecutor and, similarly, a decision was taken to oppose the defence motion. Sheriff Deutsch had granted the order to hold an identification parade and one was held in compliance with section 290(1) of the 1995 Act and also in accordance with the Lord Advocate's Guidelines. The procurator fiscal depute submitted that the devolution minute submitted by the accused could not properly be considered at this stage. The issue was one for the appeal court to determine after considering all the relevant aspects of the trial. In this connection, the depute referred to paragraph 41 of the opinion of Lord Rodger of Earlsferry in Holland. She also went on to submit that whether this was an extreme case might be a matter for the judge at the trial. At all events, the procurator fiscal's submission was that contrary to Mr Lavery's contention, this was not an exceptional case. She contrasted the circumstances of the Holland case with the present circumstances and pointed out that Lord Rodger and the other judges held that the trial judge in Holland was
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right to reject the defence submission. Dock identification was competent as the decision in Holland made clear. It was permissible to lead evidence of dock identification where the witness had not identified at an identification parade. This was what the Crown sought to do in this particular case. There was no fundamental objection to 2010 S.C.C.R. 86 at 94 the practice of dock identification. In Holland the Board were concerned only with the issues in a case where identification was a live issue at the trial and the Crown witness who identified the accused in court had previously failed to pick him out an identification parade: see paragraph 46. At paragraph 57 Lord Rodger of Earlsferry had agreed that except perhaps in an extreme case there was no basis in either domestic law or in the Convention for regarding dock identification evidence as inadmissible in itself. For the prosecutor to seek to enquire of Mr Friel at the trial whether he could identify the perpetrator was not contrary to article 6(1): Holland. The safeguards against unfairness were fully dealt with by Lord Rodger at paragraphs 57 and 58. In any event, there was other evidence, namely that the accused was found near the locus by other officers and that he was dressed in a way which fitted with the descriptions given by both civilian witnesses. The second minute had given no notice of the contention of oppression and the procurator fiscal depute declined to make any further submission on that matter. She added that there was no unfairness by leading the evidence because of the safeguards referred to at paragraphs 57 and 58 to which she had earlier referred. The procurator fiscal depute submitted that the minutes should be refused. Discussion [27] Having considered the competing submissions advanced to me and all the information put before me, I am bound to express some disquiet at the way it appears this case was dealt with by the police and by the prosecutor. In 2005 Lord Rodger said in Holland at paragraph 44, 'In future, there should be even less reason than hitherto for not having identifications checked at the earliest possible stage.' The charges here have been prosecuted upon indictment. It was not disputed by the procurator fiscal depute that after the accused was detained neither of the civilian witnesses had had an opportunity to see him until the parade which took place following Sheriff Deutsch's order. I simply do not understand why it was considered to be unnecessary and inappropriate to hold an identification parade in this case. No reason was advanced to me for not having the identifications of witnesses checked at the earliest possible stage, particularly where the accused had been remanded in custody. [28] Whilst I was referred eventually to the Lord Advocate's Guidelines as contained in Appendix 1, no explanation was advanced as to any advice upon which the instructions therein contained were based. It is perfectly plain that, if a witness says the person concerned was wearing a red pullover, it would be wrong if the suspect or accused person was the only image wearing a red pullover. But it might well be appropriate, in order to assist the witness, that all images were depicted wearing a red pullover. But it does, in my respectful view, appear to be something of an affront to common sense to pixcellate out scars of the accused or suspect where a witness makes it clear that the scars are part of his memory of the perpetrator. It is clear from the memorandum from the Assistant Chief Constable, Crime, Strathclyde Police dated 26 January 2009 that it is technologically possible to pixcellate in as well as to pixcellate out. It would, of course, be inappropriate for a suspect or accused person to be the only person with a scar. It is not necessary for me to decide whether there has been compliance with the order made by Sheriff Deutsch in terms of section 290(1) of the 1995 Act. Accordingly, I shall reserve my view as to whether in the circumstances here it can be said that the prosecutor has held an identification parade in which the accused shall be one of those constituting the parade, when the images of him was with his scars pixcellated out. For completeness, I should add that it was not contended by the procurator fiscal depute that it 2010 S.C.C.R. 86 at 95
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was unnecessary and inappropriate to hold an identification parade because compliance with the Lord Advocate's Guidelines would have resulted in the pixcellation of the accused's scarring. The procurator fiscal depute did not make complaint about the pixcellation of the accused's scars. [29] I incline to the view that it would have been appropriate in this case to have held the VIPER parade with the accused's image representing his actual physical condition at the time when the image was taken and pixcellation of other stand-ins by adding similar scarring to their images. I am very uneasy about the concept of an accused or suspect not being truly and accurately represented in a video image because certain of his features have been, to use a colloquial term, airbrushed or pixcellated out. Decision [30] So far as the devolution minute is concerned, whilst I recognise that there was considerable non-identification evidence in Holland, I cannot regard this case as an extreme case of the type referred to by Lord Rodger of Earlsferry at paragraph 57 of his opinion. I reserve my position as to what my decision might have been as regards an exceptional case had the prosecutor's case depended upon an identification of the accused by Mr Friel; a true and accurate image of the accused had been shown to Mr Friel; he had identified the stand-in at No 9; and then made the statement which he did to DC Buxton. It respectfully seems to me that having regard to the opinions, expressed in Holland, particularly by Lord Rodger of Earlsferry, but also by Lord Hope of Craighead, dock identifications cannot be said to be unfair per se and are not inadmissible. Article 6(1) entitles the accused to a fair trial. Under reference to paragraphs 38-42, it is clear that the question of whether the accused had a fair trial has to be determined after the event. In my judgment, it is not possible in this case to determine at this stage that the accused could not have had a fair trial. The judge may very well be able to give adequate and sufficient directions so as to remove any risk of prejudice. [31] Moreover, it may be that in an appropriate case the trial judge has power to withdraw a particular charge from the jury's consideration on the basis that no reasonable jury, properly directed, could return a verdict of guilty. In E v HM Advocate Lord Justice Clerk Gill said at paragraphs 29-30:
'While this is not a court of review and while we are not at liberty under this provision to disturb a jury verdict merely because we disagree with it, we cannot now regard the issue of reasonable doubt as being at all times within the exclusive preserve of the jury. '...The court has to make a judgment on the evidence that the jury heard and assess the reasonableness of the verdict with the benefit of its collective knowledge and experience.'
In delivering the Apex Scotland Annual Lecture entitled, 'The Changing Role of the High Court Judge' in the Signet Library, Edinburgh on 12 September 2006, The Rt Hon Lord Cullen of Whitekirk referred to the passage in Lord Justice Clerk Gill's opinion and stated:
'That passage makes an important point as to the boundary between the province of juries and that of judges. While it relates to the appeal court, it is logical that it should apply also to the trial judge, in a situation where, exceptionally, it was clear that this ground would apply. If so, it follows that he would direct the jury to acquit.'
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[32] For all the above reasons the devolution minute cannot be sustained. 2010 S.C.C.R. 86 at 96 [33] The other minute relates principally to admissibility of evidence and, having regard to the opinions expressed in Holland, evidence of dock identification is not inadmissible per se. So far as the oppression point taken as a plea in bar of trial is concerned, I cannot hold that there has been prejudice so grave as to be incapable of being removed by an appropriate direction to the jury or by other appropriate action on the part of the trial judge so as to give the accused a fair trial. I simply refer to what I have said in the preceding paragraphs. I am entirely conscious that the mere fact that the prosecutor may have behaved prior to the trial in a way of which the judge or sheriff may disapprove, does not entitle the judge or sheriff to sustain a plea of oppression: Hamilton v Byrne; and see Renton and Brown's Criminal Procedure, paragraph 9-21 ,footnote 3 and other cases cited there. [34] In my judgment, it is possible for the accused to receive a fair trial and as the matter of whether he does can be reviewed in the appeal court or beyond, I have no alternative but to refuse these minutes as I cannot properly hold this to be an instance of the extreme case referred to by Lord Rodger of Earlsferry in his opinion in Holland. 2010 S.C.C.R. 86 COMMENTARY It is unfortunate, from the point of view of the law, albeit not of the accused, that the trial was abandoned. The appeal court will, however, at some stage have the opportunity of considering VIPER parades and the practice of pixcellation. It certainly seems odd, not to say remarkably generous on the part of the police, to remove the feature by which a witneess says he can identify the perpetrator, even if the course recommended by the sheriff would be more expensive. I'm not sure what would have happened in an old-fashioned parade with real people, but the situation can hardly be novel. I understand that consultations are being held by the police and the Crown on the problem of pixcellation. Note: The trial was abandoned after one witness stated that he did not see or hear anything.
