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APPEAL COURT, HIGH COURT OF JUSTICIARY
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Lord Kingarth
Lord Eassie
Lord Marnoch
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2008 HCJAC 47
Appeal No: XC63/06
OPINION OF THE COURT
delivered by LORD EASSIE
In
NOTE OF APPEAL AGAINST
CONVICTION
by
SHEHZADA HANIF
Appellant:
against
HER MAJESTY'S ADVOCATE
Respondent:
_______
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Act: Shead; McClure Collins
Alt: D.A.C. Young, Advocate
Depute; Crown Agent
7 November 2008
[[1] On 12 January 2006 at a sitting of the High Court of
Justiciary in Glasgow the appellant was found guilty by
the jury of a charge of assault and attempted robbery. The terms of the libel were:
"On
23 February 2005 at Brights Newsagent's,
378 Victoria Road, Crosshill, Glasgow you did assault
Sukwant Kaur and Verawale Kaur, both employees there, and did present
a handgun at them, place them in a state of fear and alarm for their safety,
demand money and credit cards from them, demand that they open the till there,
repeatedly bang said handgun on the counter, attempt to force open said till
and thereafter force said Verawale Kaur to open said till, all with intent
to rob them".
[2] The principal
issue at the trial was the identification of the appellant as the
perpetrator. Both of the two female
employees mentioned in the charge gave evidence. In general terms each described how at about
19.40 hours on the day in question, as they were preparing to close the
shop, a man came into the shop, greeted them by saying "Hi girls" and then
demanded money. He produced a gun,
repeated his demands and banged the till.
The first of the employees, Sukwant Kaur however pressed the panic
button which set off an alarm within the shop (and also at the police station). Thereupon the man left. According to the two witnesses, the man was
wearing a "pull on" hat and had a scarf around the lower part of his face. However, in the course of making his demands,
the scarf fell away revealing that lower part of the face. Both witnesses were clear that the
perpetrator was an Asian, and thought that he was aged in his 40's because he
was greying at the temple.
[3] Sukwant Kaur
was the first of the two employees to give evidence. In the course of her examination in chief the
trial advocate depute, having taken from her the matters summarised in the
preceding paragraph, then proceeded to seek a dock identification by asking
these questions (transcript page 11 line 22ff);
"And you would recognise that person
again? - Probably, yeah.
Would you like to have a look round
the Court and see if there's anyone that you recognise?"
[4] At this point
counsel for the now appellant interposed an objection in these terms:
"My Lord, before the witness does
that, I would ask that a formal objection to that question be recorded at this
stage, but I don't seek to advance any argument in relation to that objection
now, but the Crown is aware of the position which I take".
Thereafter Sukwant Kaur identified the appellant, seated
in the dock, as the man to whom she had been referring as the perpetrator of
the offence. In addition
Sukwant Kaur then identified items of clothing, particularly a tweed
jacket, which had been recovered by the police from the appellant's house in
light of descriptions given to the police by Sukwant Kaur and her
sister-in-law, Verawale Kaur, of the perpetrator's clothing, as that being
worn by the male who had assaulted them with the intention of robbing them.
[5] In the course
of what from the transcript appears as an ably conducted cross examination,
defence counsel not only highlighted various matters reflecting on the
reliability of this witness' identification but also brought out that at an
initial stage in the police investigation, Verawale Kaur (referred to in
the evidence as Vera) had been invited to view a book containing a number of
photographs in the presence of the witness Sukwant Kaur and had identified
from those photographs one photograph of the appellant as being a photograph of
the perpetrator of the incident. And,
that having been done, in the course of an answer to the cross examiner Sukwant Kaur
said that she had said something, at the viewing of the photographs, to the
effect that she associated herself with her sister-in-law's
identification. The relevant passage is
at page 32 of the transcript:
"Within a short time of that
happening, you saw a photograph which your sister-in-law, Vera, pointed to in
your presence. - Yeah.
Would that be right? - Yeah.
And since then you've never been
asked to participate in any form of identification procedure? - No.
In those circumstances, isn't it
possible that you are identifying this man who sits here today because he was
the man in the photograph which Vera pointed to at the police station, and not
because he was in the shop? - No. I said something like I had seen him.
You don't think that's right? - What do you mean?
You don't think it's right that you
identify him because you saw him in the book of photographs - I don't think so,
no.
You don't think so, but you're not
entirely sure about it - No. I'm not
saying 100% but I'm pretty sure."
The evidence of the police officer who showed the photographs
on this particular aspect is recorded by the trial judge in his report in these
terms:
"DC Logan had attended at the shop
and taken the two witnesses to the police office. He wished to show them photographs of
potential suspects whose descriptions might match those given to him by the two
girls. They did view them together, but
only because the younger girl was too upset to view them alone. Vera looked at the book while her sister (sic) sat beside her. She was asked to point out any
resemblance. Vera identified a
photograph as very similar to the man who had been in the store before and had
committed the robbery. The other girl
looked and said 'Yes, that's him'. This
identification gave the officer something to go on, although it was not a good
photograph. He did however have a better
one of the accused and he cause (sic) it to be included in a sheet along with
eleven similar other ones. Vera
positively identified that picture and signed it".
[6] Sukwant Kaur's
evidence was followed by that of her sister-in-law, Vera. Since at base this aspect of the appeal is
directed to the admissibility of Sukwant Kaur's dock identification, and
no issue is taken, or was indeed argued before the trial judge respecting
Vera's evidence, her evidence has not been transcribed. Vera too made a clear dock
identification; and confirmed the
clothing identification. The reference
in the penultimate sentence of the passage from the trial judge's report which
we have just quoted is to what was described in the discussion before us as the
"emulator board", namely an assembly of the photographs of 12 people, one
of whom is the police suspect. The
minutes record that a similar, formal objection was taken to Vera's dock
identification but nothing was argued before us to suggest that there was any
flaw in the admission of the evidence of Vera in its entirety, or that any
specific direction required to be given thereanent.
[7] We therefore approach
matters on the basis presented to us, namely that Vera's identification is not
challenged; and if the appeal is to
succeed as respects this branch, it has to be that Sukwant Kaur's dock
identification should have been held by the trial judge to have been inadmissible
and that he should have directed the jury accordingly, thereby removing that
identification as a source of corroboration of Vera's identification of the
appellant as being the perpetrator.
[8] Reverting to
what took place at the trial, at the close of the Crown case defence counsel
sought to advance his objection to the admissibility of Sukwant Kaur's
dock identification on the dual bases that (i) the evidence was inadmissible at
common law as having been unfairly obtained and (ii) its admission as evidence
was incompatible with the appellant's "convention rights" [scilicet Article 6 ECHR] in which respect counsel sought to
have received a devolution minute. In
doing so counsel recognised the hurdle that, in terms of section 79A of
the Criminal Procedure (Scotland) Act 1995, as amended, objections to the
admissibility of evidence should be raised at the Preliminary Hearing and that
he required to persuade the trial judge that the objection "could not
reasonably have been raised before [the commencement of the trial]". Counsel explained to the trial judge that
while the question of the dock identification had been considered by him at an
appropriate time in advance of the Preliminary Hearing he concluded that the
point at issue could not suitably be advanced at least at that stage in the
proceedings. But in the event,
additional information had subsequently come into his possession which, he
would submit, would justify the trial judge in excluding the dock
identification made by Sukwant Kaur from the jury's consideration - with,
he said, the consequence that the only other identification evidence - that of
Vera Kaur - would lack corroboration.
[9] The pieces of
additional information to which defence counsel referred were thereafter explained
by him as being, in summary:
(i)
that until Sukwant Kaur gave evidence, it was unclear as to whether
the now appellant was known or unknown to her;
(and in that respect, clarification could not readily be obtained
because the legal aid regime did not permit precognition save with special
sanction);
(ii)
similarly, until she gave evidence, counsel was unaware that
Sukwant Kaur had given some form of verbal confirmation of
Vera Kaur's identification from the photographs shown to the two ladies in
each other's presence, no mention of this having been made in her statement or
the police officer's statement; and
(iii)
counsel was unaware that the procurator fiscal had instructed the
holding of an identification parade but the relevant police officer (DC Logan)
had responded to the effect that in his view an identification parade would not
be appropriate.
[10] In the light
of these matters, particularly the failure to hold the identification parade instructed
by the Crown, there was serious difficulty about Sukwant Kaur's dock
identification, where the appellant was not only sitting in the dock but also
the only Asian male in the courtroom.
[11] The Advocate
depute conducting the trial opposed the application thus made by defence
counsel on what might shortly be described as procedural grounds, namely that
the objection to the admissibility of the dock identification by
Sukwant Kaur had not been advanced at the Preliminary Hearing. Any discussion between the Advocate depute
and the trial judge of the substantive issue was, at best, marginal. The trial judge refused the motion by defence
counsel without giving any reason.
[12] Before us,
counsel for the appellant dwelled on the trial judge's refusal of the motion
advanced by the defence on the procedural ground indicated without, as it was
put by counsel, giving proper consideration of the requirement to ensure a fair
trial, both in terms of domestic law and as further reflected in Article 6
ECHR, which, he said, had to over-ride the procedural provisions of
section 79A of the 1995 Act.
The trial judge ought, at the least, to have considered the substance of
the objection, which it was indicated - assuming it to be sound - would have
led to a "no case to answer" submission and, it was said, the acquittal of the
appellant. Further, said counsel for the
appellant, the fact that the trial judge refused to hear a substantive argument
in itself constituted a miscarriage of justice since, said counsel, the
impartial observer would conclude that justice, in accordance with the rules of
natural justice, had not been seen to be done.
[13] As respects
the submission which we have recorded in the last sentence of the preceding
paragraph, to the effect that there was a breach of the principles of natural
justice in not hearing the submission of defence counsel as respects its merits,
we have come to the conclusion that that submission should be rejected. If it be the case that the trial judge erred
in not entertaining submissions on the merits of an objection which, prima facie, might, and should, have
been taken, as the statute directs, at the preliminary hearing but is subject
to being heard later at the discretion of the trial judge, a decision not to
entertain discussion on the merits is an exercise of the judicial discretion and
an ordinary matter for rectification on appeal.
In our view, no question of the breach of rules of natural justice
really arises and counsel's invocation of them in this context is
misplaced.
[14] That point
thus put aside, the success or failure of this aspect of the appeal (counsel
also raised a further issue as respects disclosure to which we will come in due
course) depends upon the substantive issue whether Sukwant Kaur's dock
identification was inadmissible in the sense that its allowance into the
evidence would render the trial unfair.
[15] As counsel for
the appellant accepted, a dock identification is not generally unfair or
incompatible with Article 6 ECHR.
That acceptance flowed from what was said by the Judicial Committee of
the Privy Counsel in Holland v HM Advocate 2005 SC(PC)3. Reference was made to the leading opinion of
Lord Rodger of Earlsferry, at paragraphs 38, 41 and 57. But, it was submitted, in paragraphs 41
and 57, Lord Rodger did not exclude the possibility that, in an extreme
case, a dock identification might be inadmissible were it to render the trial
unfair. Counsel further referred to Nulty v H.M. Advocate 2003 SCCR 378.
[16] In seeking to
bring the present case into the exceptional possibility contemplated by Lord Rodger
in his opinion in Holland v H.M. Advocate, counsel for the appellant stressed the fact that no identification
parade had been held. He referred to
"Guidelines on the conduct of Identification Parades" published in 1982 by
the Scottish Home & Health Department, particularly paragraph 3 which
states:
"Subject to the requirements of the
Procurator Fiscal, the decision to hold an identification parade should
normally rest with the officer in charge of a case or his superior
officer. In all cases where
identification may be an issue the police should normally hold an
identification parade. If a suspect or
an accused or his solicitor requests an identification parade, and the police
are in doubt about granting it, the request should be referred to the
Procurator Fiscal for his instructions".
[17] Reference was
also made to paragraphs 29-33:
"29. Where
a suspected person has not been apprehended and photographs are to be shown to
witnesses for the purpose of identification, a witness should be shown a
photograph of the suspected person along with a minimum of 11 other
photographs of other persons of similar age and appearance. The photographs should bear no marks which
would enable the witness to identify the suspect's photograph and the witness
should not be permitted to handle the photographs if they bear identification
marks on the back. The witness should be
left to make a selection without help and without opportunity of consulting
other witnesses.
30. If
a witness makes a positive identification from photographs, other witnesses
should not be shown photographs but should be asked to attend an identification
parade unless, exceptionally, the suspect is not available for physical
identification and it is necessary to show photographs to a second witness
in order to provide the Procurator Fiscal with sufficient evidence to justify
the issue of the warrant for the arrest of the suspect.
31. Where
there is no evidence implicating the suspect save by identification by
photograph, the witnesses as to identification should be taken to an
identification parade notwithstanding that they may already have made an
identification by photograph. Care
should be taken that any witness who has identified a suspected person by his
photograph and who is subsequently called upon to identify that person on his
apprehension is not again shown the photograph before identification
proceedings. Prior to any identification
parade, the defence are entitled to be advised of any earlier identification
made from photographs by any witness(es) viewing the parade.
32. As
a general rule however photographs of suspects or accused should not be shown
to witnesses for the purposes of identification if the circumstances allow for
physical identification.
33. A
record of any photographs used in the identification of suspects should be kept
and the photographs should be available for production in court if called for."
[18] Counsel for
the appellant pointed out that the submission of the Crown in Holland v H.M. Advocate narrated at paragraph 44 of
Lord Rodger's Opinion indicated that an identification parade was the norm
where identification was an issue. The
dangers of dock identification were well known and were described in Holland v H.M. Advocate at paragraphs 47 to 55
inclusive of that Opinion. The fact that
the two complainers in the present case had viewed the photographs together was
an irregularity which, said counsel, made it essential to hold an identification
parade. Because no such parade had been
held, though Crown Counsel might have instructed one at any time, the trial Advocate
depute was constrained therefore to rely on a dock identification. Further, although the trial judge did not
uphold any no case to answer submission he could still have invited the jury to
consider whether the identification parade procedures were unfair; in which connection reference was made to Platt v H.M. Advocate 2004 SCCR 2009.
[19] In his
response to this branch of the argument, the Advocate depute volunteered his
acceptance that in allowing Vera Kaur to view the initial photographs - scilicet a book of photographs and not
the emulator board - in the presence of Sukwant Kaur the procedure
followed by the police was open to criticism.
However, that irregularity in the police practice did not affect the
admissibility of the dock identification evidence. At best it went to the weight which might be
attached to that evidence. It was not
good police practice, because of the risk of possible influence. But it did not follow that there was influence. What was in issue was a matter of the
reliability of the evidence against the background of that irregularity. Each of the two complainers had picked out a
photograph of the appellant on their initial interview. On the next day Vera Kaur was shown the
emulator sheet containing 12 photographs, one of which was a more recent
photograph of the appellant and which she selected. As respects the procurator fiscal's instruction
regarding the holding of an identification parade, D.C.Logan had responded to the effect that
in his view he did not think an identification parade essential. (The Advocate depute initially advised that
the police had had difficulty in obtaining a suitable number of "stand-ins",
but it was subsequently confirmed to us that, while that may have been the
case, it was not mentioned in DC Logan's evidence. We proceed on the basis of what was before
the trial judge).
[20] There was no
rule, continued the Advocate depute, that an identification parade must be
held. Omission to hold an identification
parade might open up the Crown case to criticism by the defence; the defence could use it to attack the
reliability of the dock identification.
Even the "Guidelines" did not stipulate an identification parade. Paragraph 3 indicated a general
discretion in the police. As to the
paragraphs relating to the use of photographs, paragraph 29 related to the
emulator sheet shown to Vera Kaur on the day after the initial interview
of both complainers. Since both
complainers had already made an identification from photographs,
paragraph 30 did not come into play, there being no "other
witnesses". And, as respects
paragraph 31, there was other clear evidence in respect of both
complainers' identifying the clothing found in the appellant's home as being
that, or similar to that, worn by the perpetrator.
[21] Importantly,
said the Advocate depute, the issue of possible influence on Sukwant Kaur
from Vera Kaur's initial identification of a photograph of the appellant
was explored in detail in cross-examination.
It was also taken up in counsel's speech and the trial judge placed
before the jury in his charge the alleged irregularities and the dangers of
dock identification in these circumstances.
Were there a taint on the evidence, such a taint was patent at the time
of the trial and the consequences of that possible taint were a matter for jury
evaluation (cf Kerr v H.M. Advocate 2002 SCCR 275). Accordingly, in the circumstances of this
case, it could not be said that the dock identification had the consequence
that the trial was rendered unfair when all these matters were all actively
explored before the jury.
[22] As we have
already indicated, within the submissions of counsel for the appellant, there
was also a matter relating to alleged want of proper disclosure. It was not, however, clear whether this was
an independent point, or some point ancillary simply to the argument, which we
have endeavoured to summarise, that the dock identification was unfair.
[23] The matters
which it was said should have been disclosed, but were not, were as we
understood it, these:
(i)
the emulator sheet shown to Vera Kaur;
(ii)
evidence that when the two complainers viewed the much larger book of
photographs at that initial interview with the police, Sukwant Kaur
indicated orally an identification consistent with that of her
sister-in-law; and
(iii)
the communications between the procurator fiscal depute and the
reporting police officer respecting the holding of an identification parade.
The Advocate depute maintained that in light of what was
offered to the defence prior to trial there was no failure to make proper
disclosure.
[24] In addressing
these competing submissions, we find it convenient first to take the disclosure
issues which we have just mentioned.
Taking the initial item (i) which it was said should have been
disclosed, we are satisfied in terms of what was said to us by the Advocate
depute, and not contradicted by counsel for the appellant, that the appellant's
solicitors were offered the facility of inspection, in advance of trial, of the
emulator board photographs. There is no
question of any failure to make disclosure in this respect. Taking item (ii), whatever the state of
disclosure of what was a matter of doubtful clarity, trial counsel for the now
appellant was able to bring out in evidence in his cross examination of
Sukwant Kaur the oral indication which, it is now claimed, should have
been disclosed. But it was disclosed in
the course of the trial and no possible prejudice, in the sense of this
disclosure necessitating other lines of inquiry was suggested, nor in our view
could such be suggested. As respect item
(iii) we consider that, as a matter of internal communication between those
concerned with the prosecution of the alleged crime, it was not evidential
material which could properly be regarded as disclosable. But, in any event, we understand that it was
known to defence counsel at the trial.
We accordingly reject the submission advanced on behalf of the appellant
in so far as it advances a complaint of want of proper disclosure by the Crown
rendering, by that want of disclosure, the trial unfair.
[25] We turn now to
the more substantive issue, whether allowing the evidence of Sukwant Kaur's
dock identification to be considered by the jury rendered the trial proceedings
unfair.
[26] At the outset we
re-iterate that Vera Kaur's clear identification from the photographs,
both in the initial book and in the emulator board, and her dock identification
of the appellant as the perpetrator are not challenged. Nor is Vera Kaur's identification of the
clothing recovered from the appellant's home as being the same as or similar to
that worn by the perpetrator. Similarly,
Sukwant Kaur's equivalent identification of that clothing is not open to
dispute. It is, in that context that the
issue of the fairness of the dock identification of Sukwant Kaur must be
assessed. We would add that it should be
noted this is not a case in which the Crown sought to obtain a dock
identification notwithstanding a failure on the part of the witness to identify
the accused in an identification parade, or indeed a failure on the part of the
witness to identify the accused from a selection of photographs, which included
one of the accused.
[27] The thrust of the
submissions of counsel for the appellant was directed simply to the fact that
no identification parade was held; and
at times it seemed that he was urging that the holding of an identification
parade was a quasi legal necessity if
a dock identification were ever to be admissible in the circumstances of this
case. But the guidelines to which we
were referred are, of course, only guidelines by the executive branch of
government to police forces and beyond that have no legal status. Further, for the reasons advanced to us by
the Advocate depute we do not consider that observance of those guidelines
dictated the holding of an identification parade in the circumstances of this
case. Further, it was always open to the
appellant and his advisors to request the holding of an identification parade
if he or they thought that to be in his interest. But no such request or suggestion was ever
made.
[28] The
irregularity in the police procedures constituted by their having allowed
Vera Kaur and Sukwant Kaur to view the volume of photographs in each
other's presence, with the obvious risk of possible influence by the one on the
other, and the remarks of Sukwant Kaur in associating herself with those
of her sister-in-law, were all known to defence counsel at the trial. As we have already observed, at least on the
face of the transcript, defence counsel conducted a very competent and skilled
cross examination of Sukwant Kaur based on that risk of influence. He also canvassed those matters in, again on
the face of the transcript, an equally able address to the jury.
[29] In all of
these circumstances we reject the proposition that the decision of the trial
judge not to entertain discussing the substance of the objection advanced by
trial counsel, with the consequence that the trial judge did not exclude from
the jury's consideration the evidence of the dock identification by
Sukwant Kaur, rendered the trial unfair.
As we have already indicated, that dock identification has to be seen in
the context of the other unchallenged identification evidence to which we have
referred. It also has to be seen in the
context of the undoubted opportunity for counsel at the trial to challenge the
reliability of that dock identification (of which opportunity trial counsel
very competently took advantage). The trial
judge gave wholly appropriate directions in relation to the identification
evidence. His directions are not
criticized. There is, of course, no
suggestion of any new material coming to light which would cast doubt upon the
proceedings at trial.
[30] In these
circumstances we have come to the conclusion that there is no ground upon which
we, as an appellate court, may interfere with the verdict of the jury and the
appeal must accordingly be refused.
