APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Carloway Lord Bonomy Lord Brodie	[2011] HCJAC 99 XC62/11 OPINION OF THE COURT delivered by LORD CARLOWAY in APPEAL AGAINST CONVICTION by JAMES McLEAN Appellant; against HER MAJESTY'S ADVOCATE Respondent: _____________

Appellant: CM Mitchell; Capital Defence

Respondent: GD Mitchell QC AD; Crown Agent

22 September 2011

[1] On 11 January 2011, at the Sheriff Court in Glasgow, the appellant was found guilty, by unanimous verdict of the jury, on two charges of assault and robbery of two persons in Summerston on 13 September 2010. He has appealed against his conviction on the basis that the Sheriff failed to give the jury adequate directions on eye-witness identification.

[2] The first complainer was a 23 year old male who had been standing at a bus stop at about 8pm listening to music on his 'phone on his way home from shopping at ASDA. A man approached and threatened him repeatedly before snatching his 'phone and making off. The complainer was able to identify the appellant from photographs on an emulator sheet shown to him by the police later that night. However, he identified a stand-in at a VIPER parade two months later, at which time, according to what he said in evidence, he had been confused. At the trial, a video recording showing the store at about the time of the incident was played. The complainer identified his attacker on the video images as the person in court. He also identified a distinctive hooded top as belonging to his assailant. The top was proved to have been taken from the appellant two days after the incident, when he had been found by the police in a wooded area in Maryhill. There was further evidence that the appellant had also been identified on the day after the incident by a police officer viewing the video images.

[3] The second complainer was a 28 year old female cleaner at ASDA, who had been waiting at the bus stop some time later. Her 'phone was grabbed by a hooded man, although she was able to hold on to it. She identified the appellant from an emulator sheet of photographs shown to her by the police on the following day. She also identified him at the VIPER parade in November, although at that time she had said that she was not sure. She was not asked to identify the appellant in court. She did not identify the appellant's top which was put to her. Indeed, she identified a different label, whose provenance was not established.

[4] In his charge to the jury, the Sheriff summarised the evidence of identification. He directed the jury in the normal way about the potential dangers of eye-witness evidence. In particular, he gave to the jury the standard direction that:

"...mistakes about identification have been made in court cases in the past and these have to be guarded against. But it does not follow, from what I say, that mistakes have been made here. You will have to judge the soundness of the identifications in this case. You will need to take special care in assessing the quality of this evidence".

Having continued along similar lines he stated:

"You will have to consider how important the identifications were, both in court and at the time the photographs were shown and at the VIPER parade, and consider the reasons advanced by each witness for selecting the accused at the appropriate stages. Now to regard the identification evidence as acceptable, you do not need to conclude that the witnesses have made 100% cast iron certain identifications. But you would need to be satisfied that you can rely on the substance of what each witness said. Please remember this: evidence of identification is a matter for great care. No evidence is more convincing and none perhaps is easier to get genuinely wrong".

[5] The submission was that an additional direction ought to have been given in relation to the first complainer in respect that he had made an identification in court, but had failed to make an identification at the VIPER parade. Emphasis was placed on the terms of the Jury Manual, paragraph 16.2, which recommends that, where there has been a dock identification made but none at an identification parade, the court may draw attention to that particular feature. Reference was made to Anderson v HM Advocate 2010 SCCR 382, although in that case the directions were deemed to have been adequate. In short, it was said that the additional direction ought to have been given, having regard to the recognised dangers of dock identification.

[6] The court accepts, of course, that a trial judge must give a jury such guidance and assistance as can properly be afforded in the assessment of the credibility and reliability of oral testimony. There are cases where a specific direction on the dangers of dock identification may be appropriate and necessary. However, the court does not consider that this is a case in which such a direction was essential. In particular, this was not a situation where proof relied solely on a dock identification in circumstances where there had been no identification at a previous identification parade. On the contrary, the complainer had identified the appellant from photographs. He had gone on to identify clothing which was proved to belong to the appellant. In addition, a police officer had identified the appellant as shown on video images recorded at the store at about the relevant time. Even although the Sheriff did not focus on these particular additional points in his charge, the members of the jury were entitled to take them into account in determining whether an adequate identification had been made.

[7] The nature and extent of directions on eye-witness identification must depend on the particular circumstances of each case and the specifics of the testimony given. In this case, there were careful directions on the dangers of accepting, without careful scrutiny, evidence of eye-witness identification. These directions were entirely appropriate and the court does not consider that any further assistance was necessary. There has been no misdirection in that regard. Furthermore, having regard to the weight of the evidence, the court does not consider that, in any event, there is any risk that a miscarriage of justice may have occurred. The appeal is therefore refused.