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	Scottish High Court of Justiciary Decisons
You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> Kerr v. Her Majesty's Advocate [2002] ScotHC 345 (30 January 2002) URL: http://www.bailii.org/scot/cases/ScotHC/2002/345.html Cite as: [2002] ScotHC 345

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1. On 7 September 1999, the appellant was found guilty of assaulting Colin Greig on 6 November 1998, at Causeyside Street, Paisley, by chasing the victim, punching and kicking him on the head and body and stamping repeatedly on his head, all to his injury. The appellant appeared along with the co-accused (Scott Hamilton) on an indictment which included the narrative that the two accused had struck the victim repeatedly on the head with a wooden "slab" or similar instrument all to his severe injury. When the procurator fiscal depute came to address the jury he did not ask that the appellant be convicted of striking the victim with the slab. The jury accordingly deleted the reference to "severe" in relation to the appellant. The word "repeatedly" had also been removed from the indictment before the jury retired to consider their verdicts . (These matters are dealt with in the sheriff's charge to the jury - see, in particular, page 20C-E). There was a substantial body of evidence to the effect that the victim was assaulted on the occasion referred to in the indictment, that one of his assailants attacked him with a slab, and that that assailant was wearing a white track suit bearing the words "Le Coq Sportif" and a pictorial representation of what the witnesses described as a chicken. The other assailant was described as wearing a red or burgundy coloured jacket, blue jeans and boots. The case was presented to the jury on the basis that the appellant was the one who wore the red/burgundy jacket and that Hamilton wore the white track suit.
2. Although there was evidence about the clothing and about the two accused leaving the area in a particular car, all of which might have been relevant to the identification of the assailants, it was accepted by the Crown at the end of the trial that the Crown case really rested upon the acceptance by the jury of the identification of the appellant by three witnesses, namely the victim himself, William Sweeney and Police Constable Patterson, who claimed to have witnessed the events while there but off duty. William Sweeney's girlfriend, Eleanor Stevenson, was also an eye-witness, but did not identify the appellant as one of the assailants. In addition, however, there was evidence from two female police officers that when the appellant was within the police station and on the way to his cell he made a remark, "The big guy started it and I got involved. It was Hammy that hit him with the slab". That, according to the evidence of those two officers, was an unsolicited comment by the appellant.
3. It is plain, and there was no submission in the appeal to the contrary, that the evidence was sufficient in law to entitle the jury to find the appellant guilty of the crime of which he was in fact convicted.
4. The note of appeal contained nine grounds. Grounds 3, 4, 7, 8 and 9 were departed from by Miss Ogg at the commencement of her submissions on behalf of the appellant. She presented the appeal on the basis of the remaining grounds. We shall deal with each of these in turn.
5. Ground of appeal 1 can be summarised, as follows. It is stated that the witness William Sweeney, after positively identifying the appellant in court as one of the assailants, conceded, in his evidence in chief, that he had failed to pick out the appellant at an identification parade and had instead picked out a stand-in. In cross examination he stated that he had been told thereafter that he had picked out the wrong person. Eleanor Stevenson had also indicated in evidence that "someone at the procurator-fiscal's office" had spoken to her and to William Sweeney about what had transpired at the identification parade.. The ground of appeal then continues:

"In the light of this evidence the appellant submitted that the evidence of eye witness identification was so tainted and contaminated that no directions from the sheriff could possibly cure the undoubted prejudice suffered by the accused. Therefore a motion to desert was made and this was refused. It is submitted that the sheriff erred in refusing said motion."

6. The sheriff, in his Report to this court, narrates what happened:

"On conclusion of the evidence of Miss Stevenson, Mr. Lynch the solicitor for the Appellant moved that I desert the diet as the Crown case was dependent almost entirely on identification and the evidence of Sweeney and Stevenson had been tainted by information from the Procurator Fiscal's Office. He submitted that the identification evidence was so contaminated that it was impossible for the accused to have a fair trial, and could not be cured by a direction in my Charge. This was opposed by Mr. McGeehan, Procurator Fiscal Depute who indicated that it was premature for anyone to take a position on identification when there were additional witnesses still to be called. I agreed with Mr. McGeehan and refused the motion."

The sheriff also tell us in his Report that the motion to desert the diet was not renewed.

7. It is appropriate to summarise the evidence of William Sweeney and Eleanor Stevenson and we refer to the passages to which our attention was directed in this appeal at the appeal hearing. Before turning to that evidence, however, we should note that the victim of the assault, Colin Greig, had identified the appellant both at an identification parade and in court. His evidence was given before that of William Sweeney and Eleanor Stevenson.
8. In the relevant parts of William Sweeney's evidence (referred to herein by page number) he stated that he had seen the assault and that he saw the two males enter a car, the registration number of which he later gave to the police. He identified both the appellant and Hamilton in court (16). He also identified Hamilton as the one who had the slab. He acknowledged (18) that at the identification parade a fortnight after the assault he did not pick out the appellant, who was on the parade, but picked out a stand-in. The procurator-fiscal depute said, "...when you attended the identification parade you picked out a person from the parade that was not Mr. Kerr? - Yes. I was told that by the police." (18). He explained that it was reasonably dark when the incident happened and that he said to the police at the time [of the parade] "It was somebody of a similar description, I believe." (20). He had not been 100% certain at the parade, but in court when asked, "can you say 100% that it was them that carried out these offences?", he replied "I would say I was certain." (20). In cross examination he was examined at length about the identification parade and about his identification in court. In relation to his statement that the police had told him that he had picked out the wrong person, the transcript of evidence reads,

"And are you saying then that you go into an adjacent room, and you are spoken to by either one or two female police officers? - Yes I believe it was other officers in the room, yes. And was that a female officer? - I can't honestly remember. And are you saying that she asked you what number you had picked out? - No I don't - know, I can't remember that. I wasn't paying a great deal of attention. Well, you see, you told the ladies and gentlemen of the jury yesterday that you were told by the police that you had picked the wrong person, so when were you told that? Well I presume that would have been -- no, in fact that was at the Fiscal's office I was told that -- or possibly. It was either there or in the police station, that I haven't picked the right person. Right? - somebody must have said that to me. Right. Well, you see, it is quite important, Mr. Sweeney. There could be serious repercussions for whoever said that to you. Now, I want to be clear. Was it a police officer? - I honestly couldn't tell you -- and that is not a case of trying to cover anything up."

He later added (43) that he knew that his girlfriend, who had been with him on the occasion of the assault, had picked another number at the same parade. He again (45) qualified his previous answers by saying, "The thing about with me saying that I have been told I picked the wrong person -- that could be me surmising because my girlfriend picked another number." When asked (55) if he would accept that he was mistaken in relation to that identification in court he replied,

"No, No, I don't believe I am mistaken, no and my reasons for that being -- is what I seen in Causeyside, and then what I seen and I heard at the Flying Gourmet -- not unless there is two Causeyside Streets in Paisley, and a set of doppelgangers stood there discussing what had happened, then...".

The reference to what he had heard at "The Flying Gourmet" is to the fact that, after witnessing the assault, he and his girlfriend went to a restaurant of that name, in which he saw the two assailants and heard them bragging to others about " giving a guy a kicking". He also said that he saw the two assailants driven from the vicinity of the restaurant in a car the registration number of which he noted and reported to the police.

At page 57 he repeated that it was possible that his information about picking out the wrong person at the parade came not from the police or the procurator fiscal but was "something that I surmised from my girlfriend. That is possibility." At pages 59 to 60 there is a passage in the following terms,

"Yes. These are all the points which tend to suggest that you are maybe not sure about the persons that were responsible. But you came in yesterday and said you were 100 per cent certain that these were the two persons that were responsible? - Yes, I do believe that they are the people that were involved. See I noticed yesterday and today you used this word 'surmise' quite often. Could you perhaps explain so that the ladies and gentlemen don't get it confused what you mean by 'I surmised' that it was someone? - I believe that to be.

You believe that to be. Do you mean by that that you suspected it was these people? - What, that are sat in the dock?

Uh-huh? - Well, I believe they wouldn't be sat there if there wasn't some form of evidence for them to be there."

At page 61 he added, "If I thought it was two different people I would say 'I don't believe that's the people.'". He repeated in cross examination his evidence about the clothing worn by the assailant whom he in court identified as the appellant. At page 73 he was asked if he agreed that he had simply made a genuine mistake. He replied, "That is a possibility, yes, I could have been mistaken." but in response to a later question he said "Well, I do genuinely believe it is the two people who are there that done it...I believe that I am not mistaken." From the whole and lengthy cross examination on this issue, and the above is only a small part of it, it is clear that Mr. Sweeney was uncertain as to exactly how he had discovered that the person he had picked out at the identification parade was not the suspect (the appellant) but a stand-in..

9. Eleanor Stevenson also witnessed the incident and was able to describe it in court, including the use of the slab. She saw the two young men standing beside the car, the registration number of which her boyfriend wrote down. She saw that car driven off with the two young men inside as passengers. In court she identified the appellant's co-accused, Hamilton, but said that the other man was the one wearing a white Le Coq Sportif track suit. At the second identification parade, at which Hamilton was paraded, she picked out Hamilton as being the person who did not have the slab. She was asked,

"...did someone say to you that was the person with the slab? - After the ID parade?

Yes? - I was told.

Oh, you were told. I see? - After, when we went to the Procurator Fiscal's office.

I see. Who...? - We were told who we had identified.

Who told you that? - We went to the Procurator-Fiscal's office.

Oh, I see? - And we were told who we identified.

I see. Someone in the Procurator' Fiscal's office had told you who you had identified? - Yes.

In other words, someone in the Fiscal's office told you that at the second identification parade the person you had picked out who was similar, was the person with the slab? - Yes.

So is that why you are giving your evidence that that is the person that had the slab? - No, because he looked similar to the one that I saw with the slab."

On page 118 she states that she could not remember when it was that she went to the procurator fiscal's office and could not remember the name of the male person who had spoken to her about which person had the slab.

10. The submission for the appellant, for whom Miss Ogg appeared, was that by the time Eleanor Stevenson's evidence in cross examination had been concluded it was clear that somebody at the office of the procurator fiscal was telling one witness (Sweeney) that he had made a wrong identification and the other witness (Stevenson) that the person she had identified had not played the role that the witness had thought.

The sheriff dealt with the submission before him as explained by him in the passage at page 6 of his report. The sheriff had fallen into error, it was submitted, because the evidence of these two witnesses had become tainted as a result of the remarks that had been made to them by the person or persons who had commented upon what had transpired at the identification parades. Although it was accepted that such matters could, in certain circumstances, be dealt with by appropriate directions to the jury, as in Howarth v. H.M. Advocate 1992 S.C.C.R. 364, this was a case in which there had been deliberate interference on the part of persons in the service of the criminal authorities; the matter could not be dealt with by direction. The only possible remedy for that situation was to desert the trial pro loco et tempore. That would have allowed an opportunity to the defence to precognosce the complainer himself to see whether or not his evidence was tainted in a similar way. The Crown had refused to disclose which of the procurator fiscal's staff had precognosced the complainer or to indicate whether or not that precognoscer was the same person who had dealt with William Sweeney and Eleanor Stevenson. Accordingly, it was submitted to this court, as stated in this ground of appeal, the evidence of eye witness identification was so tainted and contaminated that no directions from the sheriff could possibly cure the undoubted prejudice suffered by the accused.

11. Exactly the same background was founded upon to support ground of appeal 2 which reads:

"2. The sheriff thereafter erred in refusing a defence motion to adjourn to allow the appellant to trace and interview the person at the procurator fiscal's office to whom the witnesses referred. This was with a view to confirming the evidence of these witnesses, and more importantly, if such remarks had been made to these witnesses whether similar comments had been made to other witnesses, in particular the complainer who had already given evidence. At the time the complainer gave evidence the defence had no knowledge of these comments by a member of staff at the procurator fiscal's office. Thereafter the defence would seek to recall the complainer and lead additional evidence. It is submitted the sheriff erred in refusing an adjournment for this purpose."

The improper conduct previously referred to was said to be compounded in that when Constable Patterson gave evidence and identified the appellant in court as one of the assailants, but then conceded that he had not picked him out at an identification parade although he had been present there, he added that he had been told by another police officer at the Identification Parade that he had picked out a stand-in. As the sheriff stated in his charge to the jury it was quite improper for these witnesses to be given that kind of information prior to their coming to court to give evidence on oath.

12. In the course of Constable Patterson's evidence a motion was made on behalf of the Crown to enable the procurator fiscal depute to seek the instructions of Crown counsel in relation to what had emerged in the course of the trial. That motion was granted. Following that adjournment the Crown did not change its position and, on the basis that it was necessary in the public interest to protect the confidentiality of the precognition process, declined to disclose any information that would enable the defence to identify which persons had spoken to the witnesses in the way described.
13. Miss Ogg submitted that the Crown had taken a mistaken view of the application of the general principle that was applied in Arthur v. Lindsay 1 Adam 582, that it was appropriate to protect the essential confidentiality of communications passing between a procurator fiscal and the head of the criminal department in Scotland. Reference was also made to Wotherspoon v. H.M. Advocate 1998 S.C.C.R. 615, at page 619 and to McLeod v. H.M. Advocate 1998 SCCR 77. These cases showed that general rules about preserving the confidentiality of the precognition process were not strict and universal. In the present case it was the conduct of the precognition officer or police officer or other person in the criminal service whose conduct was at issue: an inquiry into the propriety of that conduct that could not be protected in a criminal trial by the principle of confidentiality, properly understood.
14. Ground 5 was in the following terms:

"The sheriff erred in refusing a motion in terms of s.263 to recall the complainer to allow the defence an opportunity to cross-examine him regarding his meeting at the procurator fiscal's office in light of the subsequent evidence in the case."

It was acknowledged that the matter of recall under section 263(5) was a matter for the discretion of the judge: Gall v. H.M. Advocate 1992 S.C.C.R. 447. Although he had been unable to tell the sheriff what the complainer might say in evidence if he were to be recalled, the agent for the accused ( the appellant) had argued to the sheriff that it would have been improper to precognosce or to re-precognosce the complainer in the course of the trial, even although a consequence of that was that the court was being invited to grant a motion without being informed what, if any, new evidence the complainer would be likely to give.

15. It was further submitted that the sheriff had also erred in refusing a motion in terms of section 268 to allow the leading of additional evidence from some member of the procurator fiscal's staff as to discussions he might have had with the witnesses and any remarks made by that person regarding the issue of identification, which was central to the case (ground of appeal 6).
16. Miss Ogg drew attention to the fact that, as the sheriff had told the jury, the crucial matter in the case was the question of identification. The sheriff's directions were inadequate. Although he had drawn the jury's attention to the alleged tainting of the evidence of William Sweeney, Eleanor Stevenson and Constable Patterson, he had failed to remind the jury that they had been deprived of evidence that might have shown that even the identification by the complainer was similarly tainted. As a consequence of these events and their effect upon the presentation of the case, justice was not done and was not seen to be done. There was a clear miscarriage of justice.
17. The advocate depute, in reply, submitted that this case was one which the sheriff was entitled to regard as falling within the general rule. That rule was that identification evidence was to be assessed by the jury, subject to appropriate directions, even in circumstances where it was suggested, or was clear, that it was in some way tainted by procedural irregularity. Reference was made to Howarth v. H.M. Advocate supra. In the different but comparable circumstances in that case, in which the events surrounding the identification of the accused from photographs led the Crown to acknowledge in the course of the appeal that the procedure that had been followed could not be justified, and the court to conclude that the procedure was unwise and irregular, the court decided that the issues raised were matters of fact and degree which the trial judge properly left for the jury to consider. McAvoy v. H.M. Advocate 1991 S.C.C.R. 123, was a case in which two witnesses had been together when they were shown photographs from which they identified the appellants, and it was suggested that one of the witnesses, a mentally handicapped person, had been influenced by the other in the identification. The trial judge had left that issue to the jury, and that course of action had been approved by the court: see the opinion of the court delivered by the Lord Justice Clerk (Ross) at pages 129 and 130. Reference was also made to Adams v. H.M. Advocate 1999 S.C.C.R. 188. That was also an identification case where there were substantial criticisms advanced as to the quality of the identification evidence but it was held that it was appropriate to leave that matter to the jury. Particular reference was made to the observations of the court, contained in the opinion delivered by the Lord Justice General (Rodger of Earlsferry), as to the appropriateness of leaving such matters to the assessment of the jury. The directions given to the jury in the present case were entirely adequate and indeed forcibly reminded them that the alleged conduct could be described as "improper".
18. In relation to the motion made to the trial judge to desert the diet, that was clearly a course to be followed only in exceptional circumstances where a miscarriage of justice occurred during the trial: Renton & Brown Criminal Procedure 18-22. The normal rule was that procedural errors disclosed in the course of a trial, including misconduct by the Crown, should be dealt with by an appropriate direction to the jury and not by deserting the diet. That was what had been done here.
19. The other motions that were made to the sheriff, to adjourn, to recall the complainer or to lead additional evidence from some unnamed person were all matters that fell within the discretion of the trial judge. When these motions were made to the sheriff the defence were quite unable to give any indication as to what any of the persons who might be adduced as witnesses would be able to say. The Advocate depute submitted that the suggestion made on behalf of the appellant - that it would have been improper for the defence to precognosce the complainer after he had completed his evidence and left the witness box, in order to learn whether or not he had been spoken to by anyone about the evidence he might give in relation to identification of the accused - was incorrect. If the defence wanted to investigate that matter by precognoscing the complainer, they were free to do so and, had they done so, they would have been in a position to explain to the sheriff what additional evidence they proposed to lead and what significance or materiality it might have. It was also plainly incompetent to seek to adduce evidence from unnamed persons.
20. The Advocate depute also submitted that the process of precognition had to be kept confidential, for the reasons explained by the court in Arthur v Lindsay, supra, and that the Crown had been right to resist what was properly described as a fishing expedition by the defence, particularly having regard to the vagueness of the evidence given by William Sweeney and Eleanor Stevenson about the person or persons with whom they had had some conversation following their respective attendances at the identification parades.
21. We were left in some doubt as to the correctness of the decision by the Crown in the course of the trial to refuse to co-operate with the defence to the extent of identifying, and allowing the defence access to, the person or persons who precognosced William Sweeney and Eleanor Stevenson. Although, as the Lord President said in Arthur v Lindsay, "...the essential confidentiality of communications passing between a Procurator-Fiscal and the head of the Criminal Department in Scotland is a paramount consideration", he added, " I do not say that there would be anything illegal in the production of such documents [precognitions], because the Lord Advocate, as head of the department, might, in the exercise of his discretion, conceive that the general administration of public justice might, in some highly exceptional circumstances, not be prejudiced by that production." The Crown has a discretion in such matters. We think that there may well be an important difference between allowing investigation of the whole precognition process if its essential purpose is to reveal what a witness did or did not say to the precognoscer and allowing an investigation in circumstances in which, as was suggested here, some person, whether it be a policeman or a precognoscer or somebody else, is said to have made a remark to a witness or witnesses about their evidence, being a remark which might have caused the witness to adjust the evidence and alter it in some way. Evidence of the making of remarks that should not have been made was before the jury and, given that this was a criminal trial, not a civil case as in Arthur v Lindsay, the considerations in favour of an exercise of discretion in favour of complete openness appear to have been strong. Such an exercise of discretion would perhaps have been more in accordance with the new approach of the Crown disclosed in McLeod v H.M. Advocate. However, the trial judge has to deal with the case that is before him in the light of the stance taken by each party. In the present case, what happened was that the defence were founding upon the statements made by the three witnesses, William Sweeney, Eleanor Stevenson and Constable Patterson, about their exchanges with other people following upon their attendance at identification parades, and the Crown was not seeking to challenge that evidence. It is far from clear what the evidence of other persons could have added to what was already before the jury; and the essential question as to whether or not the evidence that the jury had heard was tainted depended heavily on what the jury made of the witnesses whose evidence the Crown were relying on. The witnesses' statements from the witness box were before the jury as unchallenged evidence; and that evidence was fairly commented upon by the sheriff who reminded the jury of the criticism made, that the evidence of identification had become tainted and unreliable. In our view, that evidence fell to be treated in exactly the same way as any other evidence given about identification in a case of this kind. It was for the jury to assess whether or not the witnesses who identified the appellant in court, and disclosed a degree of certainty or uncertainty in such identification, could be relied upon; and to determine whether or not that evidence was to be regarded, in the light of all the other evidence, as reliable and acceptable. In our view, the sheriff dealt fairly and properly with that evidence when he charged the jury. We note that the sheriff also referred fully to the evidence of the complainer. That evidence was to the effect that the complainer picked out the appellant at an identification parade on 21 November 1998. That being so it appears that it was highly improbable that any person, whether police officer or anyone else, would have sought to persuade the complainer to alter his evidence as to identification. As has been noted, the sheriff directed the jury that it was quite improper for the witnesses Eleanor Stevenson, William Sweeney and Constable Patterson to be provided with any information about the accuracy of their identification evidence, and he invited the jury to consider if the evidence of those witnesses was so tainted that it should not be accepted. It should also be noted that the sheriff's observations followed a speech to the jury by the solicitor for the appellant in which, at great length, he had repeated and elaborated the criticisms of what had happened. In our view, the cases of Howarth v. H.M. Advocate, McAvoy v. H.M. Advocate and Adams v. H.M. Advocate illustrate the general principle that falls to be applied in a case of this kind, that evidence of identification which has been subjected to serious criticism, including criticism of alleged irregularities preceding the appearance in court of the identified witnesses, should be assessed by the jury. The question as to whether or not the accused in the dock is truly identified by a witness is a question of fact for the jury, not a question of law for the court. The sheriff's charge to the jury was in appropriate terms, in the light of the authorities.
22. We are also persuaded that the sheriff was correct not to desert the diet when he was invited to do so. At that stage the jury had heard the evidence of the complainer, of William Sweeney and of Eleanor Stevenson. There was other evidence to come. On the face of it, at that stage, it appeared that the allegation that some of that evidence was tainted as the result of conversations between the latter two witnesses and person they encountered after the identification parades, would become a matter for the jury to assess in the light of all the evidence yet to be heard. That was indeed what happened. As the passage from Renton & Brown at paragraph 18.22 and the authorities there quoted show, the desertion of a trial pro loco et tempore is a course to be followed only in exceptional circumstances. The decision in the circumstances fell within the exercise of the trial judge's discretion and we consider that he was entitled to exercise it in favour of allowing the trial to continue. The motion to recall the complainer, insofar as it was founded upon section 263(5), was also a matter for the exercise of his discretion by the trial judge in the light of the same considerations to which reference has already been made. Insofar as the motion was based on section 268, it was inept having regard to the terms of section 268(b), which requires the party moving the court to allow the leading of additional evidence to show that such evidence is prima facie material. At no time was the agent for the appellant able to inform the sheriff what that evidence might be. For the same reasons, the motion to allow additional evidence from unnamed persons "from the procurator fiscal's office" was one that the sheriff was well entitled to reject. Furthermore, that section expressly confers a discretion upon the sheriff even when all the statutory conditions are met; and we do not consider that it has been shown that the sheriff erred in exercising any discretion under this section.
23. In these circumstances we consider that the grounds of appeal are not established and the appeal must be refused.