francis kelly v hma

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Scottish Criminal Case Reports/2010/HER MAJESTY'S ADVOCATE Prosecutor against FRANCIS KELLYAccused - 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 VIPERparade--Crown proposing to call witness at trial in hope of obtaining dock identification--Whether evidencewould be inadmissible as unfair

Devolution issue--Evidence--Identification of accused--Dock identification--Witness identifying stand-in atVIPER parade--Crown proposing to call witness at trial in hope of obtaining dock identification--Whethercompatible 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 apparentlybeen witnessed by two people, one of whom, F, had left the locus by the time the police arrived, but latergave a statement by telephone.. The accused was detained by two police officers unconnected with the casewho were then informed by the officer investigating the case that the accused was the person involved in theincident. He was accordingly charged and appeared on petition. The Crown refused a request by thedefence to hold an identification parade and the defence obtained an order from a sheriff that a paradeshould be held in which the acccused 'shall be one of those constituting the parade'. The accused had twoprominent scars, and a VIPER parade was held using an image of him in which these scars had beenpixcellated out. F did not identify the accused but picked out the image of another person, saying that theperpetrator looked like him, 'but I couldn't swear by it. I only know that he has a scar on his face and on hisneck'.

The accused lodged a devolution minute and one containing a plea in bar of trial on the grounds that it wouldbe contrary to art 6 and oppressive for the Crown to rely on a dock identification by F. These issues weredealt 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 accusedcould 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 appropriatedirection 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 orbeyond, the court had no alternative but to refuse the minutes (para 34); and minutes refused.

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Opinion reservedon whether the parade was in compliance with the sheriff's order (para 28).

Observedthat it would have been appropriate to have held the parade using the accused's imagerepresenting 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 beingvery uneasy about the concept of an accused or suspect not being truly and accurately represented in avideo 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 Advocate2002 SCCR 341; 2002 JC 215; (sub nom A J E v HM Advocate); 2002 SLT 715

Fox v HM Advocate2002 SCCR 647

Hamilton v Byrne1997 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 thesheriff's judgment. He lodged minutes seeking dismissal of the indictment on the grounds that toproceed with the trial would be in breach of his right to a fair trial in terms of art 6 of the EuropeanConvention 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 twocharges. 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 onbail, having been granted bail on 19 December 2008 at Glasgow Sheriff Court and it will be proved in terms of section96 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 anarticle 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 beengranted bail on 19 December 2008 at Glasgow Sheriff Court and it will be proved in terms of section 96 of the Crimeand 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, 9and 10 November 2009. The contention advanced on behalf of the accused, which was not accepted by theprosecutor, is that the prosecutor's case against the accused depends upon the identification of two civilianwitnesses, 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 thatmay or2010 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 theaccused.

[3]

The first minute is a devolution minute. It is averred that it would be incompatible with the rights of theaccused in terms of article 6 of the Convention for the Protection of Human Rights and FundamentalFreedoms for the Lord Advocate as prosecutor to seek to rely upon a 'dock' identification by the witnessRobert Friel.

[4]

The second minute comprises an objection to the admissibility of evidence in terms of section 71(1) and71(9) of the Criminal Procedure (Scotland) Act 1995. Objection is taken to any attempt by the prosecutor toask 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 onthe indictment were committed at approximately 3.45 pm on 6 August 2009 outside a garage at 103Inglefield Street, Glasgow in presence of Mr Rabhi and Mr Friel. In disclosed statements both said that theywere approached by a person and threatened: they saw the person had a knife. It was not in dispute that thepolice were contacted and that two police officers attended the locus about 4 pm. It was not in dispute thatone of these officers, Craig Collier, took a statement from Mr Rabhi. He then took a statement by telephonefrom 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 andwent 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 descriptionsimilar to the information given in the report of the alleged incidents in Inglefield Street, which form theoffences charged on the indictment. The parties were not agreed as to how far distant the locus of theoffences libelled was from Naveed's Store in Cathcart Road, but both accepted that the distance betweenthem was not considerable.

[7]

At all events, Jordan Kane and Kirsten McLatchie attended at Naveed's Store in Cathcart Road. They sawthe 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 Colliercontacted 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 onewitness. The accused was detained in terms of section 14 of the 1995 Act in respect of the offences allegedin the indictment.

[8]

For the accused, Mr Lavery, Solicitor, Glasgow stated that PC Collier then telephoned PC Kane to say thatMr Friel had now given a statement identifying the accused. Mr Lavery pointed out that this was a gap and itwas difficult to see how Mr Friel could have identified the accused over the telephone when the accused hadnot at any stage been viewed by Mr Friel subsequent to the alleged offences.

Accused appears in court and his requests for anidentification parade

[9]

Nevertheless, the accused was arrested and appeared in Glasgow Sheriff Court on petition on 7 August2009. He was committed for further examination and remanded in custody. Mr Lavery emphasised that hehad 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 17August 2009 an application by the accused for an identification parade in terms of section 290 of the 1995Act was lodged. This called on 8 September 2009 and, despite opposition from prosecutor, was granted bySheriff 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 tohold an identification parade. However, on 10 November 2009 the prosecutor stated that the holding of anidentification 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 hadbeen made at the outset and the Crown decided not to hold one. When the defence applied to the court, theprosecutor'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 hadgranted 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 havingconsidered 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 thepetitioner shall be one of those constituting the parade in relation to the offences referred to above withwhich 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 anidentification parade. It was explained that no specification was given by the procurator fiscal as to whethera traditional identification parade or a VIPER parade was to be held. It was explained that the defaultposition was that a VIPER parade would be held unless otherwise specified. It was accepted that what itcame to was that the prosecutor instructed the police to hold a VIPER parade. In obedience to theprosecutor's instruction the police made the necessary arrangements. The accused was videoed on 19September 2009 for the purpose of preparing a video image. The witnesses Mr Rabhi and Mr Friel viewedthe 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 beingrequired to attend for the purpose of being videoed. There is now a duty legal aid solicitor system in place forsuch identification parades. Instead of advising the accused's solicitor, Mr Lavery, the police contacted theduty solicitor, Mr Clark. Mr Lavery accepted that Mr Clark contacted him and that Mr Clark had attended atthe 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 thecourt at the hearing before me, it was evident that the accused has two prominent scars on his face andneck.

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 thisidentification 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 topixcellate out these scars. DC Mackinnon was finding it difficult to find viable stand-in images for the paradeand accordingly took the decision to carry out a 'non-standard VIPER parade'. VIPER is an acronym forVideo Identification Parade Electronic Recording. I was informed that there is a company bearing thatname involved in this type of work.

Pixcellation, the Lord Advocate's Guidelines and the Assistant Chief Constable, Crime, StrathclydePolice

[16]

I am bound to confess that I was astonished to hear of this request to pixcellate out the accused's scars. AndI am bound to confess I was even more astonished to learn that this request had been agreed to by thepolice officer in charge of the parade. However, Mr Lavery informed me that this was standard practice. Afterfurther research, the procurator fiscal depute produced the Lord Advocate's Guidelines to Chief Constableson the Conduct of Visual Identification Procedures. At p 11 there is a section headed 'Composition of a VideoIdentification Parade'. This section of the Lord Advocate's Guidelines is reproduced at Appendix I to thisjudgment. 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 departmentsdated 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 andProcurator Fiscal Service (COPFS), in both solemn and summary proceedings. The increasing reliance by the Force onVIPER procedures results in a significant financial commitment.

'Following extensive consultation a decision has been taken to no longer undertake non-standard VIPER compilationsincluding:

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 aletter to a firm of solicitors dated 30 July 2009, the divisional procurator fiscal for Glasgow South Divisionmade 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 thiscourt to become aware that the Assistant Chief Constable of Strathclyde Police issued an instruction dated26 January 2009, which appears effectively to instruct officers not to follow the Lord Advocate's Guidelines inrelation to the conduct of visual identification parades. It is even more concerning that this was apparentlydone 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 andthat, at the time this identification parade was held, DC Mackinnon was acting in compliance with the LordAdvocate'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 apixcellated image of the accused which was viewed by both witnesses.

What happened at theidentification parade

[19]

It was not in dispute that at the identification parade Mr Rabhi identified the accused. Mr Friel did notidentify 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 2009and later referred to in your statement to the police appeared on the images shown, please tell me hisnumber, picture, symbol.' Mr Friel replied, 'It looks like 9 but I couldn't swear by it. I only know he has a scaron his face and on his neck. He looks like 9.' The parade report instructs that where the witness makes apositive identification, the officer must show the image of the person identified again. Image 9 was returnedto the screen and Mr Friel was asked, 'Is this the person you were referring to when you made theidentification?' 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, MrRabhi or Mr Friel, knew that any of the images they viewed had been pixcellated. After his participation in theVIPER parade, Mr Friel was again interviewed. A statement was taken from him by a DC Buxton on 21September 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 atGovan Police Office when I viewed a video identification parade electronic recording... I saw the person to whom Ireferred 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 theprosecutor's case and not only had he failed to identify the accused at the identification parade, but also hehad identified a stand-in and, in a statement taken shortly thereafter, confirmed this position to another policeofficer (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 toask any question of Mr Friel seeking to elicit a dock identification. Mr Friel's identification had been tested atthe identification parade and afterwards he had confirmed the correctness of his identification to the policeofficer who had interviewed him at that time. Mr Lavery submitted that both minutes should be granted for theseparate 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 atparagraph 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 forregarding 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 werefully 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 pointedout that, in an extreme case, a judge could conclude that admitting dock identification evidence wouldinevitably 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 thehistory and what happened at the identification parade, it would be dangerous to allow evidence of dockidentification by Mr Friel to be admitted at the trial. Moreover, as this was an extreme case, it was contrary tothe 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 thatthe Lord Advocate sought to rely upon the evidence of Mr Friel as 'a principal plank in the case against theaccused'. He drew attention to paragraphs 47-55 (inclusive) and to the dangers of dock identificationevidence, which were well recognised. Here there had been compliance with the Lord Advocate's Guidelinesand 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 anythingof that sort. The facts of this case could be distinguished from the facts in Holland, where there wassignificant other evidence. In Mr Lavery's submission this was an extreme case where the court would beentitled to refuse to admit the evidence of dock identification and where it would be a breach of the accused'sarticle 6 rights for the matter to proceed to trial. Mr Lavery pointed out that the prosecutor by refusing to holdan identification parade and then opposing an identification parade being held at the instance of theaccused had not followed the clear guidance set out in the case of Holland. Reference was made to theopinion 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 theway the evidence is obtained and presented is compatible with the accused's article 6(1) right to a fair trial. Guidanceas 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 accusedbut did positively identify a stand-in, an identification which he confirmed to DC Buxton shortly thereafter andstated that he could identify him again. Mr Lavery stressed that when regard was had to the circumstances inwhich this case was handled by the police from the outset it was clear that there had been no attempt toclarify the identification at the material time. Neither Mr Rabhi nor Mr Friel saw the accused when he wasdetained by the police. No identification parade was held until the court ordered one. Taking account of allthese circumstances and what was contained in Lord Rodger's opinion, and having regard to the real dangerthat 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, itwas submitted that this was clearly implied and that the minute was intended to be not only a challenge toadmissibility but [also] a plea in bar of trial. Here it would be both oppressive and unfair to the accused toallow the trial to proceed when the case against the accused depended upon the Crown obtaining a dockidentification 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 ofEarlsferry'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-insfor 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 werevery difficult to understand. Mr Lavery referred to the decision of Lord Hamilton (as he then was) in Fox v HMAdvocateat paragraph 7. Applying the test set out there the issue was whether there were specialcircumstances such as to satisfy the court that having regard to the principles of substantive justice and offair trial to require an accused to face trial would be oppressive. Each case turned on its own circumstancesand here there were exceptional and special circumstances. Mr Lavery submitted that no amount ofcross-examination, however effective, and/or appropriate direction by the trial sheriff could remove theobvious danger of unfairness to the accused. Because of the way the prosecutor had approached this caseand what happened at the identification parade, it was unfair and oppressive to allow evidence of dockidentification 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 leftin an impossible situation in trying to properly direct the jury. It was unfortunately the case that in Glasgowthere were people with scars; and brown T-shirts and jeans were not uncommon types of clothing. For allthese 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 wasunnecessary and inappropriate to hold an identification parade. The prosecutor had a discretion as towhether 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 hadgranted the order to hold an identification parade and one was held in compliance with section 290(1) ofthe 1995 Act and also in accordance with the Lord Advocate's Guidelines. The procurator fiscal deputesubmitted that the devolution minute submitted by the accused could not properly be considered at thisstage. The issue was one for the appeal court to determine after considering all the relevant aspects of thetrial. In this connection, the depute referred to paragraph 41 of the opinion of Lord Rodger of Earlsferry inHolland. She also went on to submit that whether this was an extreme case might be a matter for the judgeat the trial. At all events, the procurator fiscal's submission was that contrary to Mr Lavery's contention, thiswas not an exceptional case. She contrasted the circumstances of the Hollandcase with the presentcircumstances and pointed out that Lord Rodger and the other judges held that the trial judge in Hollandwas

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right to reject the defence submission. Dock identification was competent as the decision in Hollandmadeclear. It was permissible to lead evidence of dock identification where the witness had not identified at anidentification parade. This was what the Crown sought to do in this particular case. There was nofundamental 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 whereidentification was a live issue at the trial and the Crown witness who identified the accused in court hadpreviously failed to pick him out an identification parade: see paragraph 46. At paragraph 57 Lord Rodgerof Earlsferry had agreed that except perhaps in an extreme case there was no basis in either domestic law orin the Convention for regarding dock identification evidence as inadmissible in itself. For the prosecutor toseek to enquire of Mr Friel at the trial whether he could identify the perpetrator was not contrary to article6(1): Holland. The safeguards against unfairness were fully dealt with by Lord Rodger at paragraphs 57 and58. In any event, there was other evidence, namely that the accused was found near the locus by otherofficers 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 deputedeclined to make any further submission on that matter. She added that there was no unfairness by leadingthe evidence because of the safeguards referred to at paragraphs 57 and 58 to which she had earlierreferred. 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 ambound to express some disquiet at the way it appears this case was dealt with by the police and by theprosecutor. In 2005 Lord Rodger said in Hollandat paragraph 44, 'In future, there should be even lessreason than hitherto for not having identifications checked at the earliest possible stage.' The charges herehave been prosecuted upon indictment. It was not disputed by the procurator fiscal depute that after theaccused was detained neither of the civilian witnesses had had an opportunity to see him until the paradewhich 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 tome for not having the identifications of witnesses checked at the earliest possible stage, particularly wherethe accused had been remanded in custody.

[28]

Whilst I was referred eventually to the Lord Advocate's Guidelines as contained in Appendix 1, noexplanation was advanced as to any advice upon which the instructions therein contained were based. It isperfectly plain that, if a witness says the person concerned was wearing a red pullover, it would be wrong ifthe suspect or accused person was the only image wearing a red pullover. But it might well be appropriate, inorder to assist the witness, that all images were depicted wearing a red pullover. But it does, in my respectfulview, 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 clearfrom the memorandum from the Assistant Chief Constable, Crime, Strathclyde Police dated 26 January 2009that it is technologically possible to pixcellate in as well as to pixcellate out. It would, of course, beinappropriate for a suspect or accused person to be the only person with a scar. It is not necessary for me todecide 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 saidthat the prosecutor has held an identification parade in which the accused shall be one of thoseconstituting the parade, when the images of him was with his scars pixcellated out. For completeness, Ishould 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 LordAdvocate's Guidelines would have resulted in the pixcellation of the accused's scarring. The procurator fiscaldepute 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 theaccused's image representing his actual physical condition at the time when the image was taken andpixcellation of other stand-ins by adding similar scarring to their images. I am very uneasy about the conceptof an accused or suspect not being truly and accurately represented in a video image because certain of hisfeatures 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 considerablenon-identification evidence in Holland, I cannot regard this case as an extreme case of the type referred toby Lord Rodger of Earlsferry at paragraph 57 of his opinion. I reserve my position as to what my decisionmight have been as regards an exceptional case had the prosecutor's case depended upon an identificationof the accused by Mr Friel; a true and accurate image of the accused had been shown to Mr Friel; he hadidentified the stand-in at No 9; and then made the statement which he did to DC Buxton. It respectfullyseems to me that having regard to the opinions, expressed in Holland, particularly by Lord Rodger ofEarlsferry, but also by Lord Hope of Craighead, dock identifications cannot be said to be unfair per se andare not inadmissible. Article 6(1) entitles the accused to a fair trial. Under reference to paragraphs 38-42, it isclear that the question of whether the accused had a fair trial has to be determined after the event. In myjudgment, it is not possible in this case to determine at this stage that the accused could not have had a fairtrial. The judge may very well be able to give adequate and sufficient directions so as to remove any risk ofprejudice.

[31]

Moreover, it may be that in an appropriate case the trial judge has power to withdraw a particular chargefrom the jury's consideration on the basis that no reasonable jury, properly directed, could return a verdict ofguilty. In E v HM AdvocateLord 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 merelybecause we disagree with it, we cannot now regard the issue of reasonable doubt as being at all times within theexclusive preserve of the jury.

'...The court has to make a judgment on the evidence that the jury heard and assess the reasonableness of the verdictwith 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 theSignet Library, Edinburgh on 12 September 2006, The Rt Hon Lord Cullen of Whitekirk referred to thepassage 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 itrelates to the appeal court, it is logical that it should apply also to the trial judge, in a situation where, exceptionally, itwas 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 expressedin Holland, evidence of dock identification is not inadmissible per se. So far as the oppression point taken asa plea in bar of trial is concerned, I cannot hold that there has been prejudice so grave as to be incapable ofbeing removed by an appropriate direction to the jury or by other appropriate action on the part of the trialjudge so as to give the accused a fair trial. I simply refer to what I have said in the preceding paragraphs. Iam entirely conscious that the mere fact that the prosecutor may have behaved prior to the trial in a way ofwhich the judge or sheriff may disapprove, does not entitle the judge or sheriff to sustain a plea ofoppression: 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 canbe reviewed in the appeal court or beyond, I have no alternative but to refuse these minutes as I cannotproperly hold this to be an instance of the extreme case referred to by Lord Rodger of Earlsferry in hisopinion 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 wasabandoned. The appeal court will, however, at some stage have the opportunity of consideringVIPER parades and the practice of pixcellation. It certainly seems odd, not to say remarkablygenerous on the part of the police, to remove the feature by which a witneess says he can identifythe perpetrator, even if the course recommended by the sheriff would be more expensive. I'm notsure what would have happened in an old-fashioned parade with real people, but the situation canhardly be novel. I understand that consultations are being held by the police and the Crown on theproblem of pixcellation.

Note:The trial was abandoned after one witness stated that he did not see or hear anything.

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francis kelly v hma

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