APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Clarke Lord Mackay of Drumadoon Lady Smith	[2012] HCJAC 156 Appeal No: XC659/11   OPINION OF THE COURT   delivered by LORD CLARKE   in   NOTE OF APPEAL AGAINST CONVICTION   by   GEORGE McNALLY   Appellant;   against   HER MAJESTY'S ADVOCATE   Respondent:   _______

 

Appellant: A Ogg, solicitor advocate; Drummond Miller LLP

Respondent: Clancy, QC, AD; Crown Agent

 

5 December 2012

[1] The appellant stood trial in Glasgow Sheriff Court on 16 August 2011 on the following charge:

"on 3 July 2009 at Union Street, Glasgow you GEORGE McNALLY did assault Lee Lindsay, care of Glasgow City Centre Police Station, 50 Stewart Street, Glasgow and did repeatedly strike him on the head and body with a broken bottle or similar implement and did pursue him all to his severe injury and permanent disfigurement and permanent impairment".

 

He was found guilty on 22 August 2011 by a majority of the jury of the charge with the deletion of the words "and did pursue him". The words "and permanent impairment" had previously been deleted on a Crown motion to amend the charge.

[2] The appellant was sentenced to a period of 3 years' imprisonment. He now appeals against conviction.

[3] The complainer and his partner Kathryn Gray on the evening of 2 July 2009 had gone out to the city centre of Glasgow for dinner. In the early hours of the morning of Friday 3 July they went to the Silver Nightclub near Central Station. Before obtaining admission there they changed their plans and decided to return home by taking a bus from Union Street. As they made their way along Gordon Street, past the front of the Central Station, they encountered a group of five or six men and women who were sitting near a statue at the northwest corner of the station. The complainer asked someone from the group if they could give him a light for his cigarette. A lighter was given by one of the group which the complainer used and returned. He was then asked by someone in the group for a cigarette. He replied that he had none left. He and his partner then proceeded to walk towards Union Street. As they did so a man from the group started to follow them. At the traffic lights at the junction of Gordon Street and Union Street this man approached the couple and asked to shake the complainer's hand. The couple had become apprehensive and the complainer declined to shake the man's hand as he thought that the man was going to strike him. The couple then turned into Union Street and walked towards the bus stop where they sat together in the bus shelter waiting for a bus. As they sat the complainer felt something strike him on the head. He quickly realised that his assailant was behind him and was holding a bottle. Another person appeared to be present. It appeared that the complainer then made his way on to the middle of the street and then, accompanied by his partner, went along Union Street, towards the Silver Nightclub, to seek assistance there. The complainer was bleeding. The complainer's partner gave evidence, at the trial, that she first heard the sound of a bottle smashing at the bus stop. When she looked around she saw a man lying on top of the complainer. She intervened and separated them. At that the man started swinging part of a broken bottle which he was holding by the neck. The complainer was seen by his partner to be struck several times on the face and neck. She told the complainer to run away as she feared that the attack would not stop. She tried to push the assailant back to allow the complainer to get away but the assailant swung the bottle in her direction and she let go.

[4] The complainer's partner ran and caught up with the complainer whose face and clothes were covered with blood. She was aware that the assailant was following them. There appeared to be another man running after them also. The couple managed to get access to the nightclub. An ambulance was called and the complainer was taken to hospital. At the hospital the complainer gave a statement to the police. His partner was not asked to give a statement.

[5] The complainer sustained a 3cm laceration to his right eyebrow, a 5 or 6cm laceration to his right nasal labial fold, a small laceration on the bridge of his nose, superficial lacerations on the right side of his neck, a 2cm cut to his left ear and a 2cm wound to his upper neck. These wounds were treated and stitched. The complainer was detained in hospital for observation. He was later transferred from Glasgow Western Infirmary to Glasgow Royal Infirmary where he stayed for 3 or 4 days for plastic surgery to his face and neck. He will be permanently scarred. As a result of the attack he lost a year at college and was prescribed medication for anxiety by his GP.

[6] The police were unsuccessful in tracing the two men involved in the incident. On Wednesday 7 October 2009, however, the complainer's partner Kathryn Gray, was in the centre of Glasgow for a work's night out at a fashion show. As she was making her way through Royal Exchange Square, which is in the area of Glasgow city centre where the assault on the complainer had occurred, she saw two police officers speaking to a group of men. In that group she immediately identified the man who she had seen attacking the complainer in July. She approached the two police officers and informed them that the man had carried out the assault on her partner. The man in question was the appellant who was detained and taken to Glasgow City Centre Police Office. In due course he was charged with the offence with which this appeal is concerned.

[7] On 21 October 2009 the complainer and his partner attended a video identification parade by electronic recording (VIPER) at Glasgow City Centre Police Office. The complainer identified a stand-in as being "most like the person who attacked him". The complainer complained of the poor opportunity to identify afforded to him by this procedure. Kathryn Gray also attended a VIPER parade and did not make any positive identification but she indicated that the appellant "looked similar" to the person who had assaulted the complainer with the bottle. She said "similar facial features, but it's not him. Just similar features". She, too, was critical of the adequacy of the VIPER procedures.

[8] On 3 November 2010 the complainer attended Baird Street Police Office, Glasgow where he viewed a conventional identification parade. He positively identified, at that parade, the appellant as his assailant.

[9] Prior to trial, and before the traditional identification parade, was carried out, two devolution minutes were lodged seeking to prevent the Crown leading dock identification evidence at the trial. These minutes were refused. The foregoing summary of the facts and circumstances as disclosed at the trial are taken from the sheriff's report.

[10] As a "preamble" to the grounds of appeal, it is stated as follows:

"Evidence was led that the Complainer had been assaulted at a bus stop at the locus. He was then pursued by the assailant who was holding a bottle. Evidence concerning identification came from three sources.

 

(a) The Complainer, Lee Lindsay. He gave a description to the police of his assailant which differed from that of the Appellant, e.g. the assailant was described as 6 feet to 6 feet 2 inches tall. The Appellant was 5 feet 8 inches in height. The Complainer attended a VIPER parade and identified a stand-in. He thereafter attended a 'traditional' identification parade and identified the Appellant. The 'traditional' identification parade was held after the witnesses and the Appellant had all been in court and court buildings on a number of occasions for first diets and trial diets. When giving evidence in court the Complainer identified the Appellant in the dock.

 

(b) The Complainer's girlfriend, Kathryn Gray. No statement was taken from her at the time of the assault. A number of months after the assault, on 7 October 2009, whilst on a night out in Glasgow, she advised the police she thought she had seen the person responsible. She thereafter attended a VIPER parade on 21 October 2009 and made no identification. She did not attend the 'traditional' identification parade. When giving evidence in court she identified the Appellant in the dock.

 

(c) CCTV evidence. Footage was shown to the court of a person being chased from a bus stop by a person carrying a bottle. Neither the Complainer nor his girlfriend could positively identify the Appellant from the footage".

 

[11] The grounds of appeal before this court were as follows:

Ground 1

"That it was contrary to Article 6 of the ECHR and oppressive for the Crown to rely on dock identification evidence at the trial diet. A devolution minute to prevent the Crown seeking to lead dock identification was lodged prior to the trial diet and before the "traditional" identification parade was held. The devolution minute was refused.

It was submitted that prior to the trial diet the Crown were aware that the complainer's initial description of his assailant did not match the appellant; that the complainer had been unable to identify the appellant at the VIPER parade and that by the time of the "traditional" identification parade the complainer had had numerous sightings of the appellant in court. In respect of the witness, Kathryn Gray, the Crown was aware that she was unable to identify the appellant at the VIPER parade and that she had failed to attend the "traditional" identification parade. She also had had numerous sightings of the appellant in court. The Crown was also aware that the appellant was not the person shown on the CCTV footage. It is submitted having regard to the history of the identification; the previous procedure in the case and the crucial nature of the evidence in all the circumstances the act of the Lord Advocate in leading and relying on dock identification in all the circumstances was oppressive, unfair, incompatible with the appellant's rights in terms of Article 6 and in terms of section 57(2) of the Scotland Act ultra vires. It is submitted that the dock identifications by both the complainer and Kathryn Gray were unfair and inadmissible and that the prejudice that occurred was so grave that the appellant did not receive a fair trial".

Ground 2

"In terms of section 106(3)(b) the verdict returned by the jury is a verdict which no reasonable jury, properly directed, could have returned and accordingly there has been a miscarriage of justice. The quality, character and strength of the evidence as to identification were such that the jury should have held that there was a reasonable doubt as to the guilt of the appellant. The learned sheriff directed the jury that they could only convict the appellant of the charge if they accepted the evidence of both the complainer and Kathryn Gray as to identification of the appellant.

It is submitted the evidence of identification was significantly flawed.

(a) In respect of the complainer his description of the Appellant to the police at the time was materially different from the Appellant and did not accord with his identification in court. He did not identify the Appellant in the VIPER parade. The identification at the "traditional" parade had been tainted by the numerous occasions the Complainer was in the Appellant's presence at court. These also tainted the dock identification.

(b) In respect of Kathryn Gray no statement was taken from her at the time of the offence and no description of the assailant obtained. She failed to identify the appellant at the VIPER parade and did not attend the "traditional" parade. Kathryn Gray had attended court on 20 occasions prior to the trial diet when the appellant was present. These factors tainted her dock identification.

(c) In respect of the CCTV footage the initial position adopted by the Crown was that this showed the assailant, the Appellant pursuing the complainer. No one could positively identify the Appellant from the video. A defence expert was led who gave evidence that the height of the person on the CCTV footage was 6 feet. The Appellant was shorter than that. When addressing the jury however the procurator fiscal depute invited the jury to ignore the video footage and to hold that a second person might have been pursuing the Complainer. No evidence was led that a second person was involved. The position adopted by the Crown as to a second person undermined the defence case and was contrary to the evidence led.

Ground 3

That the learned sheriff failed to give adequate directions to the jury concerning the identification evidence in the case and how they should approach it.

(a) In respect of the CCTV footage the sheriff failed to direct the jury as to the defence expert evidence. At pages 14 to 16 of the charge he directed the jury as to the video evidence. That evidence was challenged at the trial in respect that it was contested that the Appellant was the person pursuing the Complainer. The learned sheriff does not at any point refer to the expert witness's evidence nor give any directions as to the effect of his evidence.

(b) It is submitted that the learned sheriff erred in failing to direct the jury to exclude the evidence of the "traditional" identification parade and the dock identifications. It is submitted that both were tainted as a result of the previous erroneous description of the Appellant; the previous failures to identify the Appellant at the VIPER parades and the number of court diets in the presence of the Appellant to which the witnesses attended prior to the trial. It is submitted that the identifications should have been excluded.

(c) The learned sheriff directed the jury as to dock identification (at pages 22-23 of the charge) and referred to the previous VIPER parades and traditional identification parades. It is submitted that the learned sheriff erred in failing to direct the jury as to the possibility of contamination of a dock identification by the previous procedural history of the case".

[12] A further ground of appeal sought to attack the sheriff's question of an expert who gave evidence relating to the CCTV footage. In the event it was not pressed by the appellant's solicitor advocate before us.

[13] The conviction of the appellant in the present case undoubtedly, depended on the jury accepting the identification evidence given by the complainer and his partner. In substance the submission made by the appellant's solicitor advocate in support of the three grounds of appeal just set out was that that evidence was of such a nature that (a) for the Crown to rely on it meant that it was unfair or (b) that the way in which it was treated by the sheriff in his directions to the jury was inadequate to the extent of resulting in a miscarriage of justice or (c) that the jury should have rejected it because it was fundamentally "tainted" or "flawed". The appellant's solicitor advocate had submitted a very full written case and argument in support of the grounds of appeal. But in oral argument the separate arguments were very much run together to the effect that, on a number of legal bases, the identification evidence had been of such a nature that the verdict which must have been based on it had resulted in a miscarriage of justice. The problem, however, which faced the solicitor advocate for the appellant in her submissions to that effect was this. The complainer himself had made a positive identification of the appellant at the traditional style identification parade before trial and, most significantly, his partner had spontaneously identified, without any prompting, the appellant in the street as the complainer's assailant, some 3 months after the attack. The complainer and his partner, therefore, corroborated each other in their identification of the appellant as the assailant before trial and, in particular, before any dock identification by either of them. Those identifications of the appellant as the assailant were not, to any degree, shaken by cross examination of these witnesses who spoke to the identifications with robust certainty. To that extent the reliance placed by the appellant's solicitor advocate on the decision in the case of Holland v HM Advocate 2005 SCCR 417 was not entirely to the point. Eye witness identification evidence clearly does carry with it certain risks which are referred to in the standard directions in the judge's charge and which the trial judge, in the present case, gave. Our system however does not make such eye witness identification evidence incompetent or inadmissible. It is in every case, a matter for consideration as to the weight that can be placed upon it and whether, in particular, in a particular case the reliance placed on any particular identification evidence has rendered the trial unfair, having regard, of course, to the whole circumstances of the trial process. In Holland the particular problem addressed was the weight that might be placed on a dock identification when the witness, who made it, had previously failed to identify the person identified in the dock as the perpetrator of the crime in question. No such issue arises here. The witness Kathryn Gray's spontaneous identification of the appellant in the street, might be regarded as being as good a piece of eye witness identification evidence as one might obtain. Any subsequent identification by that witness by means of dock identification of the appellant was confirmatory of the original spontaneous identification in the street.

[14] The complainer's identification of the appellant at the traditional ID parade was not subsequently shaken in any respect and, again, was simply confirmed by his identification of the appellant in the dock. It should be noted that no objection was taken at the trial to the dock identification.

[15] The solicitor advocate for the appellant, against all of that, however, sought to rely on a number of features in the evidence from which she seemed to invite the court to infer swept away the force of the eye witness identification evidence just referred to. As previously noted she argued that a conviction reached in reliance upon it had been the outcome of an unfair trial, or was productive of a verdict which no reasonable jury, properly directed, could have arrived at, or had not been subject to adequate directions by the trial judge, to the extent that a miscarriage of justice had occurred. The particular features in the case relied upon to support this approach seeking to impugn the jury's verdict were as follows.

(1) The complainer had given the police a description of his assailant which differed from that of the appellant. The appellant was 5 foot 8 inches in height whereas the complainer had said he was between 6 foot to 6 foot 2 inches.

(2) The complainer attended a VIPER parade and identified a stand-in.

(3) While the complainer had attended the "traditional" identification parade and identified the appellant, that parade was held after the complainer, his partner and the appellant had all been in court together, on a number of occasions, in relation to procedural diets and aborted trial diets.

(4) No statement had been taken from the complainer's partner at the time of the assault, but she was apparently able to make an identification in the street on 7 October 2009. On 21 October 2009 however when she attended the VIPER parade she was unable to identify the appellant. She did not attend a traditional identification parade.

(5) CCTV footage was shown to the court of a person being chased from the bus stop by a person carrying a bottle. Neither the complainer nor his partner could positively identify the appellant from that footage.

[16] In dealing with these matters in his submissions, the advocate depute made the following points. In relation to the complainer's initial identification to the police, it was pointed out that the complainer had said, in evidence, that but for seeing the CCTV footage, he had no recollection of being chased. Moreover, in cross examination he had said his reference to the assailant being 6 foot 2 inches was simply a guess on his part. He added that he was not good at estimating person's height and had just hazarded a guess. These matters were fairly aired before the jury.

[17] As regards the complainer's failure to identify the appellant at the VIPER parade he had given a cogent explanation as to why this was the case, which related to his discomfort with the kind of imaging which was made available at such a parade. All of this had also been aired in evidence before the jury. In any event his positive identification of the appellant at the traditional form of identification parade had not been shaken by reference to his failure to identify at the VIPER parade.

[18] As regards the number of times that the appellant, the complainer and his partner had been in court, or at least in the court's precincts, the position was that the appellant himself had volunteered to stand in the identification parade after these occasions, a fact relied upon by his counsel in his speech to the jury as pointing to the appellant's innocence. No objection was taken to the complainer and his partner taking part in the identification parade, notwithstanding their presence in the court building on occasions when the appellant was also there. Miss Ogg, however, informed the court, in that respect, that the appellant had been told that if he took part in the parade, and was not identified, the prosecution would not proceed.

[19] The advocate depute pointed out that, as the sheriff states in his report, the number of sightings of the appellant by the complainer and/or his partner and the circumstances in which these arose was left somewhat vague at the trial. These matters, in any event, were all suggested before the jury as putting question marks on the reliability of the witness's evidence and were for the jury to deliberate upon in assessing the witness's credibility and reliability. It had to be borne in mind that the complainer had had a good opportunity to see his assailant on the occasion of his attack, as did his partner. There also had been the initial exchange between the complainer and his assailant regarding the complainer's request for a light. The complainer, in evidence, said he had been close to the assailant and got a "good look at his face". While he had, at some stage, said that the man visible in the CCTV coverage was the person who had hit him with the bottle, at a later stage he backed away from this being his position.

[20] The advocate depute stressed that the Crown placed great reliance upon the eye witness identification evidence of the complainer's partner. Her identification of the appellant in the street, some 3 months after the incident, was made, unprompted and spontaneously, by her. In her evidence her position had been "I just seen his face and I knew who it was". She said also that she had no doubt that the man she identified on that occasion was the assailant. It was noteworthy that at the VIPER parade she had indicated that the appellant was similar to the assailant. She, like the complainer, had expressed serious misgivings about the format of the VIPER parade as assisting in identification. Her identification of the appellant in the dock was to the effect that he was the man who had given the light and who later on was on top of the complainer, after a bottle had been smashed. There was nothing to suggest that prior to the first identification of the assailant by the complainer's partner that there had been any further contact with the appellant. That reduced the significance, if any, of subsequent sightings of the appellant in the court building.

[21] Under reference to the decision in the case of Holland, the advocate depute submitted that the fairness, or otherwise, of the trial had to be judged by having regard to all the circumstances and the context in which the dock identifications formed part of the trial, and, in particular, the opportunity for testing these matters by the defence in cross examination under reference to other factors and the directions of the judge in relation thereto. There was nothing to suggest, in any case, that the possible difficulties with regard to dock identifications had not been subject to adequate testing and cross examination in the present case or that the sheriff's directions were so inadequate as to render the dock identification so tainted that the trial had to be regarded as unfair, notwithstanding the other eye witness identification evidence.

[22] The other approach of the appellant, in seeking to impugn the verdict of the jury under reference to the provisions of section 106(3)(b) of the Criminal Procedure (Scotland) Act 1995, was also without merit. The decision of the court in King v HM Advocate 1999 SCCR 330 remained the yardstick for those seeking to rely on those provisions. The test was a very high one. Reliance by the appellant on the decision in the case of Jenkins v HM Advocate 2011 SCCR 575 failed to recognise that the circumstances in Jenkins, as the court itself had emphasised, were highly exceptional and quite different from the present case. The present case was not one which revealed the kind of extraordinary picture which was disclosed in Jenkins. Reference in particular was made to the decision of the court at paragraph 41. In the present case, unlike the position in Jenkins, there had been a positive identification of the appellant at an identification parade followed by a dock identification by one witness and a spontaneous unprompted identification in the street and a dock identification by another witness.

[23] The criticisms of the sheriff's direction made in ground of appeal 3 were all sufficiently addressed and shown to be without merit by what the sheriff said in his report to this court. As the sheriff at paragraph 24 of his report states:

"In particular at page 22 I directed the jury that they should take particular care over the full circumstances of what happened at the VIPER parade and the traditional line up. At page 23 I return specifically to Kathryn Gray's identification of the appellant on 7 October 2009 and to her attendance at the VIPER parade only two weeks later when she made no positive identification".

 

[24] As regards the defence expert evidence given at the trial as to who appeared on the CCTV footage, the sheriff explained what emerged in that respect at the trial at paragraph 25 of his report where he states:

"It is stated that 'the Crown was also aware that the appellant was not the person shown in the CCTV footage'. It was the Crown's submission to the jury that any finding of guilt should be under deletion of reference to a pursuit. From that I understood that the Crown was not saying that it was the appellant who was to be seen in the recording and because there was no averment of art and part responsibility the words 'and did pursue him' had to be deleted. The jury gave effect to that submission".

 

[25] The advocate depute submitted that there was no need, in that situation, for the judge to refer to the expert's evidence or as to its effect.

[26] At paragraph 35 of his report that sheriff records that:

"I gave the standard directions about the dangers of identification and made some additional comments about the need for particular care. I made reference to the earlier parades. In retrospect I consider that I could have said something more about the sightings at court".

 

The sheriff continues, however:

"It was difficult to know what could be said with any precision. I have already commented that Kathryn Gray's dock identification of the man she pointed out to the police was not challenged nor was PC Paterson's confirmation of the appellant as the man she had indicated. The challenge of Lee Lindsay on that topic was especially vague and was not backed by detailed evidence. It was difficult to know if he had seen the appellant at court before his identification of the appellant at the conventional parade".

 

The sheriff then points out at paragraph 36:

"There was no submission that I should exclude the evidence of the identification parades and the dock identifications".

 

It was submitted that while with the benefit of hindsight, and applying, perhaps, a counsel of perfection, it might have been better had the sheriff said something about the sightings at court or in the court curtilage, it could not be said, the matter having been canvassed openly before the jury by the appellant's counsel, that the absence of any such further direction in relation thereto was material, in the overall context.

[27] For all the foregoing reasons the appeal should be refused.

 

Decision

[28] We have reached the clear conclusion that this appeal against conviction must fail. The case came to turn on the identification of the appellant, by the complainer and his partner, as the complainer's assailant and a conviction depended on that evidence being accepted by the jury as reliable and credible, just as the sheriff directed them. Both the complainer and his partner had a good opportunity to see the complainer's assailant up close during the incident and indeed during its immediate prelude. The complainer asked the man in question for a light. The spontaneous identification by Kathryn Gray of the appellant as the assailant when she saw him in the street some 3 months after the incident, in the vicinity of where the incident occurred in our opinion was a powerful piece of evidence. She never departed from that identification and expressed certainty about it. Her subsequent dock identification of the appellant was simply confirmatory of her initial identification.

[29] The complainer himself made a positive identification of the appellant at the "traditional" identification parade. His dock identification of the appellant, once again, was confirmatory of that initial identification. None of that evidence appears, in any respect, to have been seriously shaken by cross examination. Eye witness identification evidence remains competent evidence in our system, and there was an ample sufficiency of evidence for the jury to reach the conclusion that the appellant was the assailant in this case. All that this appeal raises are certain features, which were canvassed and discussed before the jury, and which they were entitled to take into account, in judging as to the credibility and reliability of that evidence. Eye witness identification evidence has always been recognised by the court as having potential limitations due to human fallibility. These limitations are the subject matter of the standard directions given by judges in charging the jury, all of which were given, in this case, by the sheriff. To be borne in mind are the particular and obvious dangers involved in dock identification, which were fully recognised and discussed by Lord Rodger in Holland, where his Lordship gave guidelines as to safeguards which should be put in place to minimise, if not eliminate, those dangers. But none of that amounts to saying that, in a case like the present, where there was eye witness identification of the appellant by the witnesses and failures on other occasions (in this case in the VIPER parade) by the same witnesses to identify the appellant that periled a conviction relying on the identification evidence, either because the whole trial process has to be regarded as unfair or alternatively that a reasonable jury, properly directed, would not convict, where the Crown was, to any extent, relying on the dock identifications. We are satisfied that, in the present case, no unfairness arose by virtue of the Crown relying, as part of their case on the dock identification and the absence of any direction by the sheriff to the jury to ignore the dock identifications. The "sightings" at court, whenever and however they may have taken place, took place after the positive identification by the complainer's partner of the appellant in the street and could not have been "tainted" by any later sightings. Sightings of accused persons by witnesses at procedural hearings or adjourned trial diets, in the court building, or its precincts, are one of the hazards arising from the lay-out of court buildings and from the way in which the business is conducted in those buildings. The opportunity of such sightings taking place may put a question mark over subsequent identifications of the appellant by witnesses who made such sightings. If the sightings come to the attention of the prosecution or the defence they can, and should be aired, when the witnesses in question come to give evidence, provided that they are sightings which can be referred to with some precision and certainty. This was done in the present case, albeit that the number and nature of the sightings in question appear to have been left on a very imprecise basis. Be that as it may the jury were made aware of these matters and were to be trusted, in our view, to have regard to them in considering the credibility and reliability of the witnesses in question in giving their evidence as to identification. We have considered carefully the way in which the identification evidence emerged at the trial, its nature, the way in which it was tested in examination and cross examination, the directions given by the sheriff in relation thereto and have no reason to conclude that the reliance placed by the Crown on it and in particular the dock identifications (these having been made and relied upon without objection) resulted in a breach of the appellant's right to a fair trial.

[30] The submission which was based on section 106(3)(b) of the 1995 Act involved an attempt, in particular, to rely on the decision of this court in Jenkins which did quash a conviction on the basis that no reasonable jury, properly directed, would have convicted on the basis of the reliability of the key witness's identification evidence. The focus of the court's attention in that case was the jury's acceptance of the reliability of a single witness's identification evidence without which, the court held, there could have been no conviction. Before the decision of the court in Jenkins and subsequent to it, this court has made it clear that the test to be met by appellants relying on the statutory provisions, is a high one, having regard to their language. For example in Mitchell v HM Advocate 2008 SCCR 469 at paragraph 111, the Lord Justice General said:

"The court is not entitled to quash the verdict of the jury merely because, on the basis of the record of the evidence, it would have reached a different view from that which the jury plainly reached".

 

In Bruce v HM Advocate 2010 (unreported) an appeal was taken relying on the statutory provisions in relation to the jury's apparent acceptance of eye witness identification evidence. The appeal was refused. At paragraph 10 of the judgment of the court given by Lady Paton, her Ladyship said:

"This is a classic case where the evidence of eye witnesses must be weighed, assessed and decided upon by the jury. Matters of credibility and reliability are entirely for them. Weakness or flaws in the eye witness's evidence were brought to the jury's attention both in cross examination and in speeches. It was then for the jury to decide what evidence to accept, and what evidence to reject".

 

[31] The decision in Jenkins was, it appears, the first example of the court allowing an appeal on the basis of the statutory provisions when the attack was one in relation to the jury's acceptance of the reliability of a witness's evidence in relation, in that case, to identification. At various places, in its judgment, the court was at pains to make clear that that case was truly exceptional on its facts and circumstances. That is not to say, however, that the decision falls to be regarded as necessarily unique. But careful consideration of the facts and circumstances in Jenkins will readily inform the reader that those were far removed from those of the present case. The court, in particular, did not depart from the previous statements of the law in cases such as King and Mitchell as to the high test to be met before an appeal relying on the statutory provisions will succeed. What the court did in Jenkins was to scrutinise, in detail, the evidence of the witness whose evidence was being impugned and, having done so, determined that it was so grossly riddled with deficiencies, contradictions and inconsistencies that no reasonable jury, properly directed, could have stamped it with the description of being reliable. As the witness's evidence was essential for the obtaining of a conviction by the Crown, the appeal under section 106(3)(b) succeeded. The decision in that case should not be read as giving any general licence for attacks on credibility and reliability findings of juries being opened up simply because of inconsistencies, the presence of some contradictions and other difficulties in the evidence which might conceivably raise a question mark as to the reliability and credibility of otherwise acceptable evidence.

[32] In the present case we are satisfied that there is no valid basis for an attack on the jury's verdict based on section 106(3)(b) as advanced by the solicitor advocate for the appellant in this case. In our judgment the dicta of the court in Bruce cited above apply with force in the present case.

[33] We can deal with the last remaining ground of appeal briefly. This consisted of criticisms made of the sheriff's directions which were, to some extent proceeding, in our view, on a misunderstanding of the ultimate and actual position adopted by the Crown at the trial in relation to the video evidence. As regards the sheriff's directions regarding the VIPER identification parade and the dock identifications, we have considered them carefully and for the reasons submitted by the advocate depute have been unable to detect in them any material lack of direction or misdirection which can be seen as amounting to miscarriage of justice.

[34] For all the foregoing reasons the appeal falls to be refused.