wright v hma

8/8/2019 Wright v HMA

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APPEAL COURT, HIGH COURT OF JUSTICIARY

[2006] HCJAC 66

Appeal No: XC314/06

OPINION OF THE COURT

delivered by LORD PHILIP

in

NOTE OF APPEAL

under section 74 of the Criminal Procedure (Scotland) Act 1995

by

PAUL MURRAY WRIGHT

Appellant;

against

HER MAJESTY'S ADVOCATE

Respondent:

_______


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Act: Miss Ogg; McCusker McElroy, Paisley

Alt: Murphy, Q.C., A.D.; Crown Agent

4 July 2006

[1] This is an appeal by Paul Murray Wright against a decision of the sheriff at

Dumbarton dated 27 February 2006 to continue to the trial diet consideration of a

minute lodged by the appellant in terms of section 71(2) of the Criminal Procedure

(Scotland) Act 1995. The minute raised a preliminary issue in the form of an

objection to the admissibility of evidence of an identification parade at which the

appellant was identified. The appellant contends that the sheriff was obliged to

determine the preliminary issue at the first diet and that it was incompetent for him to

continue consideration of the matter until the trial diet.

[2] The background is as follows. The appellant was indicted for trial in the Sheriff

Court at Dumbarton on 4 January 2006 on five charges of assault and robbery, with a

first diet on 30 December 2005. On 28 December 2005 he lodged a minute in terms of

section 71(2) of the Criminal Procedure (Scotland) Act 1995 raising an objection tothe admissibility of evidence of an identification parade held on 25 September 2005.

That minute was in the following terms:

"1. That the Minuter, along with co-accused, Colin Murray, has been indicted

at the instance of Her Majesty's Advocate for trial in the Sheriff Court at

Dumbarton on 4th January 2006 with a first diet on 30th December 2005.

2. That the Minuter wishes to raise the following preliminary issue at the first

diet:

That the line of evidence pertaining to the identification of the Minuterby Crown witnesses McCorquodale, Neilsen and MacDonald at an

identification parade held at Partick Police Office, Glasgow on 25th

September 2005, together with Crown production 5 being a record of

said identification parade, should not be admitted in evidence on the

following grounds, viz:-

a. That identification of the Accused is a central issue to the

present case. The Crown evidence is anticipated to be to the

effect that a group of 5 young men including the 3 Crown

witnesses referred to above, were confronted, assaulted androbbed by the two accused. The evidence is expected to be that


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the group did not know their assailants and further, that at the

material time, it was dark.

b. That the Minuter has intimated a notice of special defence of

alibi.

c. That the identification parade was conducted unfairly by police

officers. The stand-in participants in the parade selected by

those officers responsible for the conduct of the parade were

not of similar age, height or appearance to the Minuter.

d. That the Minuter was 19 years of age. The youngest of the

stand-ins was 23 years of age. The oldest of the stand-ins was

29 years of age.

e. That the Minuter is approximately 5 feet 10 inches tall. 2 of the

stand-ins were 5 feet 8 inches tall, one 5 feet 9 inches tall and

one 5 feet 7 inches tall. Of the 6 stand-ins who participated,

only 2 were over 5 feet 10 inches in height.

f. That the Minuter is of mixed race and has a darker skin tone.

None of the stand-ins were of mixed race, indeed they were allwhite local males.

g. That the foregoing issues were objected to timeously by the

Minuter's solicitor, but the police officers elected to continue

with the parade.

h. That the foregoing matters, separately and cumulatively,

amount to fundamental unfairness in the conduct of the

identification parade on 25th September 2005. Accordingly,any evidence of identification of the Minuter elicited thereat, is

inadmissible."

[3] The minute came before the sheriff at a continued first diet on 24 February 2006.

At that diet the agent for the appellant indicated that, because of the nature of the

preliminary issue raised, it would be necessary for the sheriff to hear evidence. He

submitted that matters of admissibility should, wherever possible, be decided in

advance of any trial. The procurator fiscal argued that it would not be possible for the

court to deal properly with the preliminary issue at the first diet but that it should

properly be dealt with at the trial. An informed view of the fairness or otherwise of

the identification parade could not be formed until all the evidence relating to theparade had been ventilated. Even if evidence of the identification parade were to be


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ruled inadmissible at the first diet the Crown still intended to lead dock identification

evidence. In that situation the appellant's defence would be prejudiced since it would

not be possible for witnesses to the identification parade to be cross-examined on

behalf of the appellant at the trial. Two witnesses were then called on behalf of the

appellant, the solicitor who represented him at the identification parade, and the

appellant himself. The procurator fiscal called as a witness the police officer whoconducted the parade.

[4] The undisputed facts found by the sheriff were that the appellant was brought to

Partick Police Office in custody to be placed in an identification parade. The police

had secured the attendance of nine men of various ages and descriptions as stand-ins.

The appellant's solicitor expressed a dissatisfaction with the stand-ins on the ground

that they were white and pale skinned, while the appellant was of mixed race and dark

skinned. He also objected to the ages and heights of the stand-ins. The officer

conducting the parade noted these objections, but explained that the arrangements

were the best that could be made in the circumstances and proceeded to conduct the

parade with the stand-ins in question. The appellant and his solicitor gave evidence tothe effect that, in their view, the parade had been unfair due to the disparity between

the colour of the appellant and the stand-ins. The officer, on the other hand, opined

that the parade had been fairly conducted. If he had thought otherwise he would not

have continued with the parade. The witnesses who were to view the parade had

travelled from Oban to Glasgow and constraints of time had played a part in the

organisation of the parade.

[5] At the conclusion of the evidence the solicitor for the appellant argued that it was

for the Crown to establish that the parade was not unfair. Because of the disparity

between the appellant and the stand-ins in terms of skin colour, age and height, the

identification parade had been unfairly conducted. There had been nothing to excuse

the unfairness. The identification evidence had therefore been irregularly obtained and

was accordingly inadmissible. The procurator fiscal argued that the correct test was

whether or not the conduct of the identification parade was so unfair that it should not

be put before a jury. The question whether that test had been satisfied could not be

answered until all the evidence relating to the parade had been ventilated. In particular

it was of critical importance that the question should be considered in the light of the

evidence of the witnesses who had actually identified the appellant at the parade. At

the first diet the court only had the conflicting views of the three witnesses as to the

fairness or otherwise of the parade. The question of fairness was a matter for the jury

to decide and that decision could only be reached after all the evidence had beenheard and tested.

[6] The sheriff took the view that there was not sufficient material before him to

enable him to form a concluded view on the objection and continued consideration to

the trial diet purportedly in terms of section 71(2ZA)(b) of the 1995 Act. He

considered that he required to hear the evidence of the witnesses who had viewed the

parade in order to determine whether it was unfair or not. If the fact that the appellant

was the only mixed race individual on the parade had been the basis of the witnesses'

identifications, that would be relevant to the question of fairness. If, on the other hand,

the witnesses' evidence was that the appearance of the stand-ins was of no

significance because their identifications were based, for example, on previousknowledge of the appellant, then the evidence of the parade might be of little


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significance. To determine the merits of the minute on the basis of the limited

evidence which had been put before him would be likely to be productive of injustice

to one side or the other.

[7] In terms of section 79(2) of the 1995 Act an objection by a party to the

admissibility of any evidence is a preliminary issue.

[8] Section 71(2) provides:

"(2) ... the court shall, at a first diet, consider any preliminary plea or

preliminary issue (within the meanings given to those terms in section 79(2) of

this Act) of which a party has, not less than two clear days before the first diet,

given notice to the court and to the other parties."

[9] Section 79(1) provides:

"(1) Except by leave of the court on cause shown, no preliminary plea orpreliminary issue shall be made, raised or submitted in any proceedings on

indictment by any party unless his intention to do so has been stated in a

notice under section 71(2) or, as the case may be, 72(3) or (6)(b)(i) of this

Act."

[10] Section 71 also contains provisions enabling the court to deal with objections to

the admissibility of evidence which have not been the subject of notice in terms of

section 79(1).

[11] Section 71(2YA) and (2ZA) provides:

"(2YA) At a first diet, the court shall also ascertain whether there is any

objection to the admissibility of any evidence which any party wishes to raise

despite not having given the notice referred to in subsection (2) above, and -

(a) if so decide whether to grant leave under section 79(1) of this Act for

the objection to be raised; and

(b) if leave is granted dispose of the objection unless it considers it

inappropriate to do so at the first diet.

(2ZA) Where the court, having granted leave for the objection to be raised,

decides not to dispose of it at the first diet, the court may -

(a) appoint a further diet to be held before the trial diet for the purpose of

disposing of the objection; or

(b) appoint the objection to be disposed of at the trial diet."


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[12] For the appellant, Miss Ogg argued that the provisions of section 71(2) should be

interpreted as requiring the sheriff to determine the admissibility of the evidence of

the identification parade at the first diet. The word "consider" where it appeared in

subsection (2) meant "determine" or "dispose of". The onus was on the Crown to

prove that the identification parade was fair. The sheriff was obliged to determine

whether the Crown had discharged that onus on the basis of the evidence led at thefirst diet. He was not entitled to continue the matter to the trial diet to enable further

evidence which might bear upon the question of admissibility to be led. It was not

open to him to cure any defects in the Crown case by continuing consideration of the

question.

[13] For the Crown the advocate depute submitted that if the appellant's submissions

were correct the sheriff would be prevented from doing justice. Section 71(2) required

the court to consider any preliminary issue at the first diet, not to determine it. The

sheriff considered that he had insufficient material before him to arrive at a concluded

view. It was not for the parties to put limitations on his discretion by requiring him to

determine the question on the evidence of a selection of witnesses chosen by them.

[14] It is, in our view, clear that the sheriff was entitled to continue consideration of

the appellant's objection to the trial diet. Subsection (2) of Section 71 requires the

court to "consider" any preliminary issue of which a party has given notice in terms of

section 79(1) at the first diet. The court is not required to determine or dispose of the

issue at that stage. The word "consider" does not bear such a meaning in that context.

Support for that interpretation is to be found in subsection (2ZA) of section 71 which

deals with objections to the admissibility of evidence which the court has allowed to

be raised in terms of subsection (2YA) of section 71 and subsection (1) of section 79,

despite the absence of notice. Subsection (2ZA) envisages that the court may decide

not to dispose of such an objection at the first diet, and empowers it to appoint a

further diet to be held before the trial diet for the purpose of disposing of the

objection, or to appoint the objection to be disposed of at the trial diet. The use of the

phrase "dispose of" in that context is in clear distinction to the use of the word

"consider" in subsection (2).

[15] It was argued on behalf of the appellant that, although the court was enabled by

subsection (2YA) to appoint such late objections to the admissibility of evidence to be

disposed of at a further diet or at the trial diet, it was nevertheless prevented from

dealing with objections of which notice had been timeously given in the same way.

Such a result could, in our view, have no rational justification, and there is noprovision in the 1995 Act which can be interpreted as having that effect.

[16] While the legislation was framed with a view to facilitating the resolution of

preliminary issues before trial it recognised that such a course is not always possible.

In the present case the sheriff was invited to determine the admissibility of the

identification parade evidence in the light of the evidence of three witnesses, two of

whom were chosen by the appellant. The position of the Crown was that the issue

could not be determined at the first diet. The sheriff rightly took the view that he

could not do justice by determining the issue in the light of the evidence led. How the

matter should be determined at the trial diet is a matter for the court to determine at

that stage. The appeal is refused.

wright v hma

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