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Times Law Reports/2005/June/(2005) Times, 1 June/Holland v HM Advocate - (2005) Times, 1 June

Holland v HM Advocate
(2005) Times, 1 June

Privy Council -- Scots law -- criminal proceedings -- dock identification dangers in jury direction

PRIVY COUNCIL

Published 1 June 2005

Before Lord Bingham of Cornhill, Lord Hope of Craighead, Lord Rodger of Earlsferry, Baroness Hale
of Richmond and Lord Carswell

Judgment May 11, 2005

When, in Scottish criminal proceedings, a witness made a dock identification of the accused, having
previously failed to identify him at an identification parade, the judge should give an appropriate and
authoritative direction to the jury about the dangers inherent in that identification if the accused was to be
regarded as having had a fair trial.

Under article 6.1 of the European Convention of Human Rights, the accused's agents and counsel were
entitled to have disclosed to them information about the previous convictions of, or outstanding charges
against any witness to be led at the trial, so that they could prepare the accused's defence.

The Privy Council so held in considering a devolution issue and allowing an appeal by John Holland against
decisions of the High Court of Justiciary (Lord Justice Clerk (Lord Gill), Lord Osborne and Lord Abernethy)
dated August 21, 2003 and a further decision of that (Lord Justice Clerk (Lord Gill), Lord Penrose and Lord
Hamilton) dated June 16, 2004 dismissing his appeal from his conviction on April 22, 2002 at Glasgow High
Court (Lord Menzies and a jury) of two charges of armed robbery.

Ms Margeret E. Scott, QC, Mr Shahid Latif and Ms Shelagh McCall for the appellant; Mr Neil Brailsford, QC,
Mr Iain Armstrong, QC and Ms Angela Grahame for HM Advocate.

LORD RODGER

said that it was trite that the Convention did not concern itself with the law of evidence as such. In particular,
it did not lay down that certain forms of evidence should be regarded as inadmissible. Such questions were
left to the national legal systems.

What article 6 did was guarantee a fair trial and so, when the introduction of some form of evidence was said
to have infringed the accused's article 6 rights, the question always was whether admitting the evidence had
resulted in the accused not having a fair trial in the circumstances of the particular case.
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While one could not exclude the possibility that, in an extreme case, the judge could conclude that admitting
dock identification evidence would inevitably render the trial unfair, normally the requirements of article 6
would not raise any issue of admissibility.

Similarly, while there might occasionally come a time in the course of a trial when the judge could conclude
that the dock identification evidence had made the trial unfair, in most cases it would be impossible to reach
a view on that matter until the judge had given his directions to the jury and they had returned their verdict.

In effect, therefore, the issue would generally be for the appeal court to determine after considering all the
relevant aspects of the trial.

Two factors which would weigh in favour of the conclusion that an accused had indeed had a fair trial would
be the fact that he was legally represented and that the rights of the defence had been respected, with the
accused's representative being able to challenge the admissibility of the evidence, to cross-examine the
witness and then to address the jury on the weaknesses of the evidence.

It would also be important to consider any directions which the judge gave to the jury about the identification
evidence. The significance of the contested evidence in the context of the prosecution case as a whole
would also be relevant.

In particular, had it been one of the principal planks in the case against the accused or was there a
substantial body of other evidence pointing to his guilt? Since decisions were thus liable to depend very
much on the circumstances of the individual case, they were likely to afford only limited guidance in
subsequent cases.

Moreover, the Board were concerned only with the issues in a case where identification had been a live
issue at the trial and the Crown witnesses who identified the accused in court had previously failed to pick
him out at an identification parade.

Therefore the appeal did not touch the use of dock identification in other cases.

Nor, of course, did it cast any doubt on the requirement that a Crown witness's identification of the accused
should not, generally, be left to implication.

The Advocate-Depute had accepted that identification parades offered safeguards which were not available
when the witness was asked to identify the accused in the dock at his trial.

Similarly, he did not gainsay the positive disadvantages of an identification carried out when the accused
was sitting in the dock between security guards: the implication that the prosecution was asserting that he
was the perpetrator was plain for all to see.

When a witness was invited to identify the perpetrator in court, there had to be a considerable risk that his
evidence would be influenced by seeing the accused sitting in the dock in that way.

So a dock identification could be criticised in two complementary respects: not only did it lack the safeguards
that were offered by an identification parade, but the accused's position in the dock positively increased the
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risk of a wrong identification.

Those criticisms were at their most compelling in a case where a witness who had failed to pick out the
accused at an identification parade was invited to try to identify him in court.

The prosecutor was then seeking to use evidence obtained in circumstances which carried a heightened risk
of a false identification, when he knew that the witness had been unable to identify under the controlled
conditions of an identification parade.

By leading and relying on such evidence, the prosecutor was introducing into the trial that particular element
of risk.

The potential dangers of a dock identification in those circumstances derived from aspects of human
psychology which were the same in similar societies. In that respect witnesses and juries in a Scottish court
were no different from witnesses and juries in, say, an English or Canadian court.

So, when the Advocate-Depute invited the witness to identify the accused in such a case, the Crown were
deliberately introducing an adminicle of evidence which certain other systems generally excluded; precisely
because of the heightened risk that the identification would be mistaken.

Except perhaps in an extreme case, there was no basis, either in domestic law or under the Convention, for
regarding such evidence as inadmissible per se.

The safeguards: for example, the requirement for corroboration, the opportunity for counsel to contrast the
failure to identify at the parade with the identification in the dock and to comment accordingly, were, of
course, important.

Their mere existence could not be used, however, to justify the abstract proposition that in all cases in Scots
law an accused who had been convicted on the basis of a dock identification had necessarily had a fair trial.

In Scots law, as in any other system, the actual circumstances of any given trial had to be considered before
one could say that it was fair.

In some cases, for instance, the dock identification evidence of one witness would have been confirmed by
the evidence of witnesses who knew the accused. In other cases, there might be DNA evidence confirming
the identification.

Again, however, the available corroboration might consist in facts and circumstances which were open to
more than one interpretation, or else it might take the form of a dock identification by another witness who
had failed to identify at the identification parade.

Similarly, in most trials counsel would have duly cross-examined the witness about the purported
identification, but in some the cross-examination might have been perfunctory.

In some trials defence counsel might have made a powerful submission to the jury on the point; in others
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counsel might have made little, or even nothing, of it.

The effectiveness of those and other potential safeguards in securing a fair trial depended on what actually
happened in the individual case.

One potentially important safeguard lay in the judge's directions to the jury. It was necessary, however, to
distinguish between directions which a judge gave on the approach to be adopted in relation to eye-witness
identification evidence in general and directions on the dangers of dock identification evidence, in particular.

Attention had been drawn to the Lord Justice General's 1977 Practice Note (REF) and to a series of
decisions in which the appeal court had given guidance on eye-witness identification in general.

Important as those were in relation to that matter, they did not deal with the peculiar dangers of a dock
identification where a witness had previously failed to identify at an identification parade.

Nor was there anything in the excerpts from the Judicial Handbook to suggest that judges should give a
direction of that kind. Doubtless, in practice, judges often did so.

However, given the importance of the safeguard, judges should give an appropriate and authoritative
direction in all cases of that kind. The general lines of such a direction were obvious, but, ideally, in any given
case its precise form would reflect the particular circumstances.

In the instant case the judge had not given the jury such a clear warning.

It was also submitted for the appellant that, by failing to disclose information about outstanding charges
against the victims of the robbery, relating to drug dealing from the house where they had been attacked, the
prosecution had further infringed his rights under article 6.1.

There was no doubt that, historically, in Scotland the Crown had been reluctant to provide the defence with
details of the previous convictions of witnesses in advance of trial. In more recent years the practice of the
Crown had been somewhat modified so as to permit disclosure of previous convictions where the defence
agents could show that they would be relevant to the proposed defence.

Although the new approach constituted a significant advance on the traditional stance of the Crown, it still
required procurators-fiscal to decide whether the circumstances were such that, in the public interest, the
witnesses' previous convictions should be revealed to the accused's representatives. That procedure was
open to the kind of criticism expressed by the European Court of Human Rights in Rowe and Davis v United
Kingdom (Application No 28901/95) (The Times March 1, 2000, (2000) 30 EHRR 1, 30).

Although it was open to the defence to apply to the court for an order for production, the new scheme placed
procurators-fiscal and Crown counsel in the invidious position of having to judge the relevance of previous
convictions to a defence, the lines of which the accused's representatives were generally under no obligation
to reveal.

In reality, however, the scheme was more deeply flawed since it was obvious that a reasonably competent
defence agent or counsel, considering how to approach the examination or cross-examination of a witness,
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would wish to know whether the witness had any previous convictions and, if so, their nature. Indeed it was
precisely the kind of thing he would want to know.

What use, if any, the agent or counsel chose to make of the information was a matter for him and he might
well not be able to decide until he actually had it.

But, at the very least, the information would help in assessing the strengths and weaknesses of the witness.

Therefore, information about the previous convictions of any witnesses to be led at the trial would be likely to
be of material assistance to the proper preparation or presentation of the accused's defence.

Under article 6.1 the accused's agents and counsel were accordingly entitled to have that information
disclosed so that they could prepare his defence. Since in that way both sides would have access to that
information at trial, the accused's right to equality of arms would be respected. The observations to the
contrary effect in HM Advocate v Ashrif (1988 SLT 567) should not be followed.

Of course, in the instant case the defence agents did not ask for details of previous convictions but, rather,
for information about any outstanding criminal charges that the victim faced. In particular, they wished to
know whether he had been indicted or was due to be indicted in the near future.

Again, for the same kinds of reasons, that was information which would be likely to be of material assistance
to the proper preparation or presentation of the accused's defence. So, in principle, in terms of article 6.1 the
Crown should disclose it.

As a rule, there could be no good reason not to disclose that the witness had been charged. Similarly, in
solemn cases, where the witness had been indicted, the defence agents could be told. Where no decision
had yet been taken about indicting the witness, the defence agents should be told that.

Details of previous convictions were computerised and procurators-fiscal could readily obtain the necessary
information. Details of outstanding charges, especially in summary proceedings, might well be much more
difficult to discover, if, for example, a different office was dealing with the matter.

So, while the duty of those handling the Crown case would be to disclose any outstanding charges of which
they knew, a general duty to search for outstanding charges would be unduly burdensome.

If Crown officials were asked about a particular witness, they need only take such steps to search for any
outstanding charges as were appropriate, having regard to any indications given in the defence request.

Lord Hope delivered a concurring opinion. Lord Bingham, Baroness Hale and Lord Carswell agreed.

Solicitors: Drummond Miller, WS, Edinburgh, for Browns Glasgow; Crown Office, Edinburgh.

Copyright © Times Newspapers Ltd and Reed Elsevier (UK) Ltd 2005

Session Cases/2005/Holland v HM Advocate - 2005 SC (PC) 3

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2005 SC (PC) 3

Holland v HM Advocate

PRIVY COUNCIL

LORD BINGHAM OF CORNHILL, LORD HOPE OF CRAIGHEAD, LORD RODGER OF EARLSFERRY,

BARONESS HALE OF RICHMOND, LORD CARSWELL

11 MAY 2005

Justiciary- Evidence- Dock identification- Witnesses failing to identify accused at identification parade-
Whether dock identification self-incrimination- Whether fair trial- European Convention on Human Rights and
Fundamental Freedoms, Art 6

Justiciary- Procedure- Dock identification- Witnesses failing to identify accused at identification parade-
Crown declining to disclose whether witnesses had outstanding criminal charges against them- Crown not
disclosing statement made by police to witness at identification parade- Judge s charge to jury- Whether
dock identification self-incrimination- Whether fair trial- European Convention on Human Rights and
Fundamental Freedoms, Art 6(1)

Alison Stirling

The appellant was charged, inter alia, with two charges of assault and robbery. Charge two related to an
incident at a house, and charge three related to shop premises. The eye-witnesses in respect of charge two
were Mr Lynn, Miss Gilchrist and Mr Gilchrist, and the eye-witness in respect of charge three was Mr
Simpson. Mr Lynn, Miss Gilchrist and Mr Simpson failed to identify the appellant at an identification parade.
Miss Gilchrist gave a precognition to the Crown in which she stated that the police had commented adversely
on her selection at the identification parade. That information was not disclosed to the appellant. Before the
trial the appellant sought information from the Crown regarding whether Mr Lynn had outstanding criminal
charges against him and, in particular, whether he had been indicted or was due to be indicted in the near
future. The Crown declined to disclose any such information to the appellant. At trial Miss Gilchrist and Mr
Simpson positively identified the appellant in the dock. The appellant was convicted. After the trial Mr Lynn
pleaded guilty to a charge of dealing in heroin from the house in charge two. It transpired that both Mr Lynn
and Miss Gilchrist had appeared on petition on drugs charges weeks before the incident in charge two. The
appellant appealed on the ground that the prosecution conducted in the name of the Lord Advocate had
infringed his Art 6 right to a fair trial because (1) the Crown relied on evidence from witnesses who identified
him when he was sitting in the dock during his trial, and (2) the Crown had failed to disclose certain evidence
to him. The day beforethe appeal the Crown disclosed to the appellant Miss Gilchrist statement about the
police officer remark to her at the identification parade. The appeal court considered the appeal in two
stages. The appeal court rejected the ground relating to dock identification. A differently constituted appeal
court subsequently rejected the ground relating to the alleged failure to disclose information. The appeal
court refused leave to appeal to the Judicial Committee of the Privy Council. The Judicial Committee granted
special leave to appeal. The appellant argued that (1) dock identification evidence was so unfair and
unreliable that it was incompatible with a fair trial under Art 6(1), and (2) the procedure of dock identification
compelled the appellant to assist the Crown case against himself by exhibiting himself, contrary to his Art
6(1) right against self-incrimination. He also argued that the failure to disclose the outstanding charges
against Mr Lynn and Miss Gilchrist, and the failure to disclose the remark after the identification parade
infringed his rights under Art 6(1).

Held that: (1) there was no infringement of the appellant Art 6(1) right against self-incrimination (paras 1, 2,
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36, 37, 87, 88); (2) the proper approach was to consider whether, having regard to all the elements of the
proceedings, including the way in which the identification evidence was obtained, the accused had a fair trial
in terms of Art 6 and that issue would generally be for the appeal court to determine after considering all the
relevant aspects of the trial (paras 1, 2, 5, 38, 39, 41, 87, 88); (3) the question whether the trial as a whole
was fair could only be decided by the same court considering all its relevant strengths and weaknesses,
including any breaches of specific safeguards in Art 6, together (paras 1, 2, 43, 87, 88); (4) by leading and
relying on dock identification evidence where a witness failed to pick out an accused at an identification
parade, the prosecutor was introducing into the trial a heightened risk of false identification but such
evidence was not inadmissible per se (paras 1, 2, 5, 9, 38, 4749, 57, 87, 88); (5) the judge directions to the
jury were an important safeguard in securing a fair trial, and accordingly judges should give an appropriate
and authoritative direction of the dangers of dock identification where a witness previously failed to identify at
an identification parade (paras 1, 2, 58, 87, 88); (6) information about the previous convictions of any
witnesses to be led at the trial would be likely to be of material assistance to the proper preparation or
presentation of the defence and under Art 6(1) the defence was accordingly entitled to have that information
disclosed along with information about any outstanding criminal charges faced by the witnesses of which the
Crown were aware, and the failure to provide information about the outstanding charges against Mr Lynn and
Miss Gilchrist infringed the appellant Art 6(1) right (paras 1, 2, 7275, 87, 88); (7) the Crown had infringed the
appellant Art 6(1) right by failing to disclose the remark which the police officer had made to Miss Gilchrist
after the identification parade (paras 1, 2, 76, 87, 88); (8) the two Crown failures to disclose information were
properly to be seen not as separate and isolated infringements of Art 6(1), but as infringements that each
had a bearing on Miss Gilchrist dock identification, which was one of the central elements of the prosecution
case, and about which the trial judge had given no proper warning, and taking all the relevant factors
together, the failures to disclose information and the reliance on dock identifications were incompatible with
the appellant core Art 6 right since they resulted in an unfair trial (paras 1, 2, 84, 85, 87, 88); and appeal
allowed and case remitted to the appeal court to decide whether to grant the Crown authority to bring a new
prosecution.

Observed (per Lord Hope of Craighead) where the Crown sets out to prove that a particular person is the
perpetrator of a crime the identification of the accused as its perpetrator must not be left to implication: if this
rule is to be applied correctly the accused, in whose favour the rule has been devised as a matter of fairness,
must accept that witnesses for the Crown may be asked during the trial to confirm that he is the person to
whom they are referring in their evidence (paras 8, 9). HM Advocate v Ashrif 1988 SLT 567 commented
upon.

Cases referred to

Advocate (HM) v Ashrif 1988 SLT 567; 1988 SCCR 197; Barnes v Chief Constable, Durham [1997] V.2
Cr App R 505; Beattie v Scott 1990 JC 320; 1991 SLT 110; 1990 SCCR 296; Bruce v HM Advocate 1936
JC 93; 1936 SLT 577; Edwards v UK (1992) V.15 EHRR 417; Farmer v HM Advocate 1991 SCCR 986;
Hogg v Clark 1959 JC 7; 1959 SLT 109; Holland v HM Advocate 2003 SLT 1119; 2003 SCCR 616;
Holland v HM Advocate 2004 SLT 762; 2004 SCCR 452; Leggate v HM Advocate 1988 JC 127; 1988
SLT 665; 1988 SCCR 391; McLeod v HM Advocate (No 2) 1998 JC 67; 1998 SLT 233; 1998 SCCR 77;
Maan, Petr 2001 SLT 408; 2001 SCCR 172; Moorov v HM Advocate 1930 JC 68; 1930 SLT 596; Rowe
and Davis v UK (2000) V.30 EHRR 1; Schenk v Switzerland (1988) V.13 EHRR 242; Stewart v HM
Advocate 1980 SLT 245; Tani v Finland App No 20593/92, unreported; Teixeira de Castro v Portugal
(1998) V.28 EHRR 101; Wilson v Brown 1947 JC 81; 1947 SLT 276; 1947 SLT (Notes) 21

James Holland was charged along with a co-accused on an indictment at the instance of the Right
Honourable Colin David Boyd QC, Her Majesty Advocate, the libel of which set forth, inter alia, two
charges of assault and robbery. He pled not guilty and the case came to trial before Lord Menzies
and a jury in the High Court of Justiciary at Glasgow. On 22 April 2002 he was convicted.
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The appellant appealed to the High Court of Justiciary, raising devolution issues in terms of para
1(d) and (e) of sch 6 to the Scotland Act 1998 (cap 46) on the ground that the prosecution
conducted in the name of the Lord Advocate had infringed his Art 6 Convention rights because (1)
the Crown relied on dock identifications, and (2) the Crown had failed to disclose certain
information to the defence.

The appeal in respect of the dock identification was heard before the High Court of Justiciary,
commencing on 8 July 2003. At advising on 21 August 2003, the court (Lord Justice-Clerk (Gill),
Lord Osborne and Lord Abernethy) rejected that ground of appeal.

The appeal in respect of failure to disclose information was heard subsequently. At advising on 16
June 2004, the court (Lord Justice-Clerk (Gill), Lord Penrose and Lord Hamilton) rejected the
second ground of appeal.

On 24 June 2004 the High Court of Justiciary refused leave to appeal to the Judicial Committee of
the Privy Council. On 28 July 2004 the Judicial Committee granted special leave to appeal.

The cause called before their Lordships in the Judicial Committee of the Privy Council, comprising
Lord Bingham of Cornhill, Lord Hope of Craighead, Lord Rodger of Earlsferry, Baroness Hale of
Richmond and Lord Carswell, for a hearing on 7 and 8 March 2005, together with Sinclair v HM
Advocate 2005 SC (PC) 28. The court allowed the appeal for reasons delivered on 11 May 2005

Her Majesty Advocate, Respondent; Brailsford QC, Armstrong QC, Grahame; Crown Agent

11 May 2005

Lord Bingham of Cornhill

[1] I have had the opportunity of reading in draft the opinions of my noble and learned friends Lord Hope of
Craighead and Lord Rodger of Earlsferry. I am in complete agreement with them, and for the reasons that
they give would make the orders which Lord Rodger proposes.

Lord Hope of Craighead

[2] I have had the advantage of reading in draft the opinion of my noble and learned friend Lord Rodger of
Earlsferry. For the reasons which he has given, with which I am in full agreement, I would allow the appeal
and make the order which he proposes. I should however like to add these brief observations on the use of
dock identification evidence.

[3] There is no doubt that Scotland is unique among the jurisdictions in the United Kingdom in the
significance that it attaches to dock identification. But in the appeal court, as the Lord Justice-Clerk (Gill)
records in his opinion (Holland v HM Advocate (2003), para 25), counsel for the appellant submitted that
Scots law on this point compared unfavourably with all other comparable jurisdictions. The Advocate-depute
submitted, on the other hand, that there were numerous other jurisdictions in which dock identifications were
allowed. The Lord Justice-Clerk said that counsel for the appellant had failed to satisfy him that Scots law
was unique among all other comparable jurisdictions in this respect ((2003), para 31).
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[4] No attempt was made to deploy any comparative material on this issue during the hearing before the
Board. In a letter which was submitted after the hearing the Deputy Crown Agent said that the
Advocate-depute submissions to the appeal court were based on a document about the use of dock
identifications in other European jurisdictions which had been obtained from Eurojust, and their Lordships
have been shown a copy of that document. As the appellant counsel have pointed out, however, it is difficult
to make reliable comparisons as the practices of inquisitorial systems differ markedly from the Scottish
system with regard to the gathering and adducing of evidence. The most that can be taken from the brief
descriptions contained in this document is that, while dock identifications are used in a number of European
systems, these systems vary in their approach to evidence of identification generally and in the weight that is
to be attached to dock identifications in particular.

[5] I do not think that this material assists one way or the other in resolving the issue which lies at the heart of
this case, which is whether dock identification evidence is incompatible with the Art 6(1) Convention right to a
fair trial. As the jurisprudence of the European Court to which Lord Rodger refers makes clear, it is not its
practice to address issues about the admissibility of evidence in the abstract or to deal with them as issues of
principle (see especially Schenk v Switzerland, para 46). So I would reject any suggestion that the use of
dock identification evidence in solemn proceedings must always be regarded as incompatible with the
accused Art 6(1) Convention right to a fair trial, even if Scots law is indeed unique in the importance which it
attaches to such evidence. It all depends upon the facts of the case whether the use of this kind of evidence
could be said in the particular circumstances to have been unfair.

[6] Looking at the point more generally, I see no reason why Scots law should be diverted from its current
practice in the use of dock identification evidence even if it were the case that all other comparable
jurisdictions regard this as unacceptable. It is pre-eminently a matter for each jurisdiction to determine its
own rules of evidence. Particular care must of course be taken, where identification is likely to be a real issue
in the case, to ensure that the way the evidence is obtained and presented is compatible with the accused
Art 6(1) Convention right to a fair trial. Guidance as to what is and what is not unfair is to be found in the
Second Report of the Thomson Committee in 1975. In para 134 of its report the committee recommended
that it ought not to be competent for the Crown to ask a witness who had viewed an identification parade and
had failed to identify the accused on that occasion to identify the accused in court. But in para 133 the
committee also recommended that it should be competent for the prosecutor to ask a witness who confirms
that he did identify the accused at the parade whether the accused in the dock is that person. This shows
that the committee was content to accept that there was no fundamental objection to the practice of dock
identification as such.

[7] In Bruce v HM Advocate a number of witnesses who were asked to speak to certain facts in connection
with the indictment spoke of the accused James Bruce. But they were not asked directly to identify in court
the person to whom they were referring in their evidence. Lord Wark said that, as a matter of practice, the
identification of the accused by witnesses who are speaking to the facts should, in every case, be a matter of
careful and express question on the part of the prosecutor (p 95; see also Wilson v Brown where witnesses
said that they knew the licence holder but were not asked to identify the accused as that person). In Stewart
v HM Advocate (p 251) Lord Justice-General Emslie reaffirmed what he described as the general rule of
practice, that where the Crown sets out to prove that a particular person is the perpetrator of a crime the
identification of the accused as its perpetrator must not be left to implication.

[8] If this rule is to be applied correctly, the accused in whose favour, after all, the rule has been devised as a
matter of fairness must accept the fact that witnesses for the Crown may be asked from time to time during
the trial to confirm that he is the person to whom they are referring in their evidence. This includes witnesses
who were responsible for the conduct of any identification parade as well as those in whose case, because
they knew the accused, the holding of a parade was thought to be unnecessary. The general rule and the
practice of asking witnesses to confirm that the person in the dock, or which of them if more than one, is the
person to whom they are referring go hand in hand. It would not be possible to abandon the practice without
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departing from the rule too.

[9] The decision in this case demonstrates the limits beyond which the practice of dock identification cannot
be taken without risk to the accused Art 6(1) Convention right to a fair trial. But it should not be taken as a
signal that the practice of inviting witnesses to say whether the person to whom they are referring is in court,
and if so to identify him, is itself objectionable and should now be departed from.

Lord Rodger of Earlsferry

[10] The appellant is James Holland who went to trial along with his co-accused, Stephen Foy, at the High
Court at Glasgow in April 2002. On 22 April the appellant was convicted, inter alia, of two charges of assault
and robbery (charges 2 and 3). Charge 2 related to an incident at a house at 11 Western Avenue,
Rutherglen, on 4 September 2001, while charge 3 concerned an incident at shop premises at Rankin Gate,
Carluke, on 9 September 2001. In addition, the appellant was convicted of two comparatively minor charges:
having with him, without lawful authority or reasonable excuse, a loaded air pistol in Tollcross Road,
Glasgow, on 15 September 2001, contrary to sec 19 of the Firearms Act 1968 (cap 27) (charge 4); and
attempting to pervert the course of justice by giving the police a false name, also on 15 September 2001
(charge 5).

[11] The appellant appealed against his conviction of charges 2 and 3 on the ground, inter alia, that the
prosecution conducted in the name of the Lord Advocate had infringed his Art 6 Convention rights, first,
because the Crown relied on evidence from witnesses who identified him when he was sitting in the dock
during his trial and, secondly, because the Crown had failed to disclose certain information to the defence.
The appeal thus raised devolution issues in terms of para 1(d) and (e) of sch 6 to the Scotland Act 1998. The
appeal court considered the appeal in two stages. In the first (Holland v HM Advocate (2003)), the Lord
Justice-Clerk (Gill), Lord Osborne and Lord Abernethy rejected the ground relating to the dock identification
and in the second (Holland v HM Advocate (2004)), the Lord Justice-Clerk, Lord Penrose and Lord Hamilton
rejected the ground relating to the alleged failure to disclose the information. In the result they refused the
appeal against conviction. On 24 June 2004 the appeal court refused leave to appeal to the Board on the
devolution issues, but on 28 July 2004 the Board granted special leave to appeal.

[12] To set the scene, it is necessary to explain the circumstances in a little more detail. I gratefully adopt the
trial judge narrative of the events giving rise to the assault and robbery charges, as they emerged in
evidence at the trial. Crimes

[13] The complainers in charge 2, a Miss Gilchrist and a Mr Lynn, lived together and were both disabled. At
about 9 pm on 4 September 2001 they were at home, expecting Miss Gilchrist son, Jamie, to return from
coaching football for younger children. There was a knock at the front door and, when Miss Gilchrist opened
it, she saw three men. One of them had a gun and another had a knife. She screamed and they grabbed her
by the hair and pushed her back into the flat. She was dragged to the living room where her hair was again
grabbed and she was forced to her knees, while her assailant put his hand over her nose and mouth. She
explained that she suffered from asthma and lung disease and that he would kill her, but her assailant
continued to keep his hand over her nose and mouth. He was wearing latex gloves. One of the other
assailants, whom Miss Gilchrist identified as the appellant, was also wearing latex gloves and held a gun at
Mr Lynn head. The men tied Miss Gilchrist hands and wrists tightly in front of her body. They also tied Mr
Lynn hands behind his back. The men demanded money and jewellery, pulling a ring from Miss Gilchrist
finger, grabbing and pulling a chain from around her neck and taking one from around Mr Lynn neck. They
were unable to remove all the rings on Miss Gilchrist fingers and appeared to be preparing to use a kitchen
knife to chop off her fingers when Jamie Gilchrist returned home and knocked on the living room window.
This caused all three men to run out of the house taking the jewellery with them.
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[14] The incident in charge 3 occurred some five days later. The complainer, Mr Simpson, was the manager
of the RS McColl shop at Rankin Gate, Carluke. Shortly after 8.00am on 9 September he arrived to open the
shop. When he had opened some of the shutters at the front, Mr Simpson noticed two men loitering outside.
He thought that they were customers waiting for the shop to open and he indicated that they should wait for
five or six minutes. Mr Simpson then went to the back area of the shop. While he was there, the two men
came running through the back door. They were wearing latex gloves. One was carrying a gun. Putting his
arm round Mr Simpson, he put the gun to his left temple. The men forced Mr Simpson upstairs into the
cigarette room and pushed him to his knees. He was terrified. The men ordered him to open the safe and he
did so. They then began pulling change from the bottom part of the safe. The men put cigarettes, cash and
telephone cards into black bin bags. They then forced Mr Simpson to lie in front of the safe, held the gun to
the back of his head and obtained the key to the cigarette room. Having locked Mr Simpson in, the men ran
off.

[15] In the witness box Mr Simpson identified the appellant and his co-accused, Mr Foy, as the two men who
had robbed him. After that evidence had been led, Mr Foy pleaded guilty to charge 3, his pleas of not guilty
to two other charges on the indictment being accepted by the Advocate-depute. Pre-trial procedures

[16] Following the incident when he had the air pistol in Tollcross Road on 15 September 2001, the appellant
was first detained and then charged with offences relating to incidents on that date. He appeared on petition
in the sheriff court at Glasgow in that connexion on 17 September 2001 when he was committed for further
examination. He appeared again on a fresh, slightly amended, petition in relation to those matters on 21
September when he was fully committed. On the same day, along with Mr Foy, the appellant appeared on a
different petition in the same court. This petition contained charges relating to the incidents which eventually
formed the subject-matter of charges 2 and 3 on the indictment. In the case of the assault and robbery on
Miss Gilchrist and Mr Lynn, the petition was based on Miss Gilchrist having identified the appellant from
police photographs that were shown to her. Similarly, in the case involving Mr Simpson, he had given a
description of one of his assailants and had identified the appellant from police photographs. On 21
September the appellant and Mr Foy were committed for further examination in respect of these matters and
bail was refused.

[17] The procurator fiscal directed that an identification parade should be held in respect of both accused.
This duly took place on 26 September. Mr Lynn, who has poor sight, attended, as did Miss Gilchrist, Jamie
Gilchrist and Mr Simpson. Mr Lynn could not identify anyone. Jamie Gilchrist identified the appellant. Miss
Gilchrist and Mr Simpson each picked out two (different) stand-ins. Despite this setback for the Crown, on 28
September 2001 the appellant and Mr Foy were fully committed in respect of both robberies.

[18] The Crown proceeded to precognosce the witnesses. Miss Gilchrist said to the precognoscer that, after
the identification parade, a policeman had told her that she had not done too well. In due course, the
precognition and draft charges were submitted to Crown counsel. In the accompanying summary, the
procurator fiscal drew attention to the potential problems as to the sufficiency of evidence for the two charges
of assault and robbery. About the charge concerning Mr Lynn and Miss Gilchrist the procurator fiscal said
this:

There were three perpetrators involved in this incident. The witness Allison Gilchrist identified the accused
Holland from photographs as being one of the three robbers (the one wearing the grey fleece and carrying
the knife). She is confident (or, at least, expressed confidence at precognition) that she would be able to
identify the one with the grey fleece again if she were to see him in the flesh. Unfortunately, she failed to pick
out the accused Holland at the identification parade held on 26 September 2001. She picked out two
stand-ins at the parade. She has stated at precognition that she was put off by the fact that members of the
parade were laughing during the parade and she now thinks that she got things wrong. It is rather concerning
that, at precognition, she stated that the police had told her after the parade that she didnt do too well.
Clearly the police have no business to be saying such things to witnesses who have just viewed an
 Page 12

identification parade (and no doubt, if I made enquiries, I would be met with complete police denials that
anything of the sort was said to the witness). On the basis of the precognition Crown counsel instructed that
the appellant and Mr Foy should be indicted for trial in the High Court. In due course they were indicted for
trial on 11 February 2002 but, in the event, the trial did not take place until April. When the indictment was
served, the Crown did not tell the appellant agents about what the police officer had said to Miss Gilchrist
after the identification parade.

[19] At some stage in the course of preparing for the trial, the appellant told his agents that there was a
rumour in prison circles that Mr Lynn, who was on the Crown witness list, had outstanding drugs charges
against him. So, on 29 January 2002, on the instructions of senior counsel, the appellant agents wrote to the
Crown Office to enquire whether Mr Lynn had outstanding criminal charges against him and, in particular,
whether he had been indicted or was due to be indicted in the near future. On 7 February the Crown Office
replied, asking the appellant agents to provide them with the basis on which the request was being made
and its relevance to the appellant defence. On 22 February the appellant agents replied, saying that their
enquiries suggested that Mr Lynn might have been the target of a robbery because of criminal activity on his
part and associations he had made in that regard. They further believed that he had an association with the
appellant co-accused (Mr Foy). They believed that evidence of Mr Lynn conduct and character might cast
doubt on their client involvement in the matters in hand. Finally, on 6 March the Crown Office official replied
that he was not in a position to disclose any such information to the appellant agents.

[20] Faced with this refusal, the appellant agents and counsel did not seek an order from the High Court for
the disclosure of the information. Evidence at trial

[21] When the trial began and the Advocate-depute was about to call Miss Gilchrist to give evidence, senior
counsel for the appellant objected on the ground that the Advocate-depute intended to ask questions that
were designed to see whether Miss Gilchrist would identify the appellant, sitting in the dock, as one of the
perpetrators of the assault and robbery in charge 2. The same applied to Mr Simpson in charge 3. Senior
counsel lodged a devolution minute to the effect that the act of the prosecutor in leading and relying on such
evidence was incompatible with the appellant Art 6 Convention rights and so was ultra vires in terms of sec
57(2) of the Scotland Act 1998. The trial judge repelled senior counsel objection and the trial proceeded.

[22] Miss Gilchrist gave evidence in which she identified the appellant as the man who had had the gun
during the incident. She also identified Mr Foy as one of those involved in the incident, although he had not
been charged with that offence. Towards the end of her examination in chief the Advocate-depute asked her
about picking out the two stand-ins at the identification parade. Miss Gilchrist said:

Well, I wasnt too sure because I was in a state and there was people laughing on the parade and the police
were telling them to be quiet. About three times the police told them to be quiet. They were laughing and I
am quite self-conscious and I thought they were laughing at me, so I was really I couldnt do it. I really just
picked out who I thought it was but I wasnt absolutely positive at the time. I just picked out who looked quite
like them, but I wasnt too sure. She went on to say that the man she had picked out in court was definitely in
my house. Definitely. Senior counsel then cross-examined Miss Gilchrist to the effect that she had not said
anything at the time about being frightened or scared. Miss Gilchrist also said that her identification was
more likely to be accurate in court, when she saw the men in front of her face, than at the parade 22 days
after the event. Senior counsel pointed out to Miss Gilchrist that in court she had identified Mr Foy who was
not charged with the offence. She replied, Well, I dont know who has been charged with it. I am just telling
you who was in my house. She rejected any suggestion that she might have been mistaken. In
re-examination she confirmed that the man with the spectacles in court (the appellant) was definitely the one
with the gun.

[23] When he gave evidence, Jamie Gilchrist, who had already identified the appellant at the identification
 Page 13

parade, again identified him in the dock as being one of the three men who ran out of the building as he
arrived. In cross-examination he said that it was possible that he could be mistaken but that the appellant
looked very much like the man. In re-examination he said that he was sure of his identification of the
appellant.

[24] Because of his defective sight, Mr Lynn was not asked if he could identify any of the robbers.

[25] There is no transcript of the evidence of Mr Simpson but it is not disputed that he identified the appellant
and Mr Foy as the two robbers. He was asked about the identification parade and said that the appellant was
the man whom he had picked out on that occasion. It was put to him that he was wrong about that. He also
said that no-one had told him at the parade that he had [not?] picked the right man.

[26] None of the officers who conducted the identification parade was called as a witness.

[27] In seeking a conviction of the appellant on charge 2, the Advocate-depute relied on the dock
identification by Miss Gilchrist and Jamie Gilchrist of the appellant as one of the participants. The
Advocate-depute also relied on the evidence, led in relation to charge 4, that on 15 September 2001, some
11 days after the assault and robbery in charge 2, the appellant was in possession of an air pistol which Miss
Gilchrist, Mr Lynn and Jamie Gilchrist all said was similar to the weapon used in that assault and robbery.

[28] So far as charge 3 was concerned, the Crown relied, of course, on the evidence of Mr Simpson
identifying the appellant as one of the perpetrators. The Advocate-depute also relied on Mr Simpson
evidence that the air pistol found in the possession of the appellant on 15 September, some six days after
the assault and robbery on Mr Simpson, was similar to the weapon which he said had been used. For
corroboration of Mr Simpson evidence, the Crown invoked the principle in Moorov v HM Advocate. Here the
incidents in charges 2 and 3 were both assaults and robberies; they occurred within a few days of one
another; the places where they occurred were in the same general geographical area; and there were
striking similarities (the holding of the gun to the victim left temple, forcing the victim to the floor, the use of
latex gloves) between the two incidents. In these circumstances, if the jury accepted the evidence of Mr
Simpson as truthful and reliable, they could find corroboration of it in evidence which they accepted,
indicating that the appellant had been one of the perpetrators of the assault and robbery in charge 2. Equally,
of course, Mr Simpson evidence was potentially available as corroboration of the evidence of Miss Gilchrist
and Jamie Gilchrist on charge 2. Judge charge to the jury

[29] In his charge to the jury the judge began with the usual general directions and then gave directions on
the legal meaning of the charges which they had to consider. He continued:

Now, having explained to you the legal meaning of each of the charges which James Holland faces, let me
give you some words of warning about the evidence of identification of the accused, particularly in relation to
charges 2 and 3. This is a warning which is to a large extent not particular to the circumstances of this case.
It is a warning which I give in all trials which involve identification evidence. In giving it I do not mean to
suggest to you that you should believe or disbelieve any particular witnesses: that is a matter for you. What I
am inviting you to do is to take particular care in assessing the identification evidence.

The critical issue, ladies and gentlemen, in this trial in relation to charges 2 and 3 in particular is the quality of
the identification evidence. That is something you must decide on.

Now, the Crown asks you to accept the evidence of Alison Gilchrist, Jamie Gilchrist and Stuart Simpson as
 Page 14

credible and reliable evidence pointing to the accused as the perpetrator of the crimes in charges 2 and 3.
And the defence invites you not to accept their identifications as reliable, and to conclude that this is a case
of mistaken identity.

It for you to decide if that evidence sufficiently links the accused with the perpetration of the crimes in
charges 2 and 3. You would have to be satisfied beyond reasonable doubt that the accused has been
identified as the perpetrator of the crime in charge 2 and as the perpetrator of the crime as charged in charge
3. And the evidence for that would have to come from two independent sources, both credible and reliable. If
you were not satisfied, the Crown would have failed to prove one of the essential facts by corroborated
evidence, and you would have to acquit the accused of whichever charge you were considering.

Errors can occur in identification. Sometimes we think we have recognised somebody we have seen before;
sometimes we are right, sometimes we are wrong. Some people are better at it than others. Mistakes about
identification have been made in court cases in the past; but it doesnt follow from that that any mistake has
been made here. It for you to assess the soundness of the eyewitness identification. But you will need to
take special care in assessing that evidence. You may wish to take account and consider several factors.
First, what opportunity did the witness have to observe the person concerned? Was it a fleeting glimpse?
Was there time for reliable observations to be made? And was the person clearly visible? What was the state
of the lighting? Was the person previously known to the witness, or was he a stranger? Was the person
someone with some easily distinguishable feature or not? How positive have the identifications been? And
have the memories of the witnesses been affected in any way?

To regard the identification evidence as acceptable, it not necessary that you should conclude that the
witness in question has made a 100 per cent, absolutely certain identification; but you need to be satisfied
that you can rely on the substance of what the witness said.

The task of assessment is not an easy one: it is certainly one which has to be approached with great care
and circumspection. Up to this point, the trial judge was giving the standard directions on identification
suggested in the Judicial Handbook and ending with a sentence taken from Lord Cullen charge to the jury in
Farmer v HM Advocate (p 987DE).

[30] The judge then went on to deal with the evidence given by the eyewitnesses. He reminded the jury of
Miss Gilchrist dock identification and also reminded them that, at the identification parade, she had not
identified the appellant but had identified two stand-ins. He reminded the jury of the explanation which she
had given of that. He went on:

But in assessing that, ladies and gentlemen, remember that in her evidence she denied saying to the police
that she would know the one with the grey fleece, but that she couldnt identify the other; and you have heard
the evidence of PC Angus McDougall, who spoke to the fact that he had taken a statement from her that day,
and he read out to you what she had said; although remember also that that statement was given within one
hour of the incident, and that could go either way: that is a matter for you. It might mean that her recollection
was clearer, or because she was very upset at the time it might be that you wouldnt be swayed by what she
said at the time. It a matter for you. The trial judge then went over Jamie Gilchrist evidence, before saying:

So, ladies and gentlemen, you may think that you have two witnesses giving positive identification of the
accused James Holland in court. That is a matter for you. What I am urging you and directing you to do is to
take particular care in assessing and weighing up this material. As I said, the task of assessment is not an
easy one, and it is certainly one which has to be approached with great care and circumspection.
 Page 15

[31] When he came to charge 3, the trial judge said:

Turning to charge 3, ladies and gentlemen, you have got the evidence on that charge of identification, which
came from Stuart Simpson, the store manager. According to my recollection and I repeat, it yours that counts
he identified Mr Holland in court as one of the two men. And he thought that he had picked him out at the
identification parade. In fact and it not, I think, disputed by the Crown he did not pick Mr Holland out in the
identification parade. And he accepted in cross-examination that he could possibly be mistaken, although he
said in re-examination, as I recollect him, that he was sure of his identification of the two men in court today.

Now, all the words of caution that I gave you about identification evidence in relation to charge 2 also apply
to this evidence in relation to charge 3. I do not mean to suggest that Mr Simpson is mistaken in this
identification of the accused in court, nor that he is correct in it: that is a matter for you to decide. You must
remember all the points relied on by Miss Scott in her speech to you, including the general point that what is
known as a dock identification, that is pointing to an accused in court, is in her submission not fair and
therefore not to be relied upon. All I require of you is to approach all the evidence of identification with great
care and circumspection.

[32] In the light of the judge charge, by a majority, the jury found the appellant guilty of charge 2 and,
unanimously, found him guilty of charges 3, 4 and 5. Post-trial developments

[33] On 21 June 2002 Mr Lynn and Miss Gilchrist appeared at the High Court at Glasgow on charges of
dealing in heroin at 11 Western Avenue, Rutherglen, between 19 January and 1 June 2001. Mr Lynn
pleaded guilty to a restricted charge covering the period from 19 April to 1 June 2001. The court was told that
he had more than £3,000 hidden in a safe in the house, that he had £1,096 in his trouser pocket and sums of
£600 and £188 hidden behind an electric cable in the road. He had been found with 10 bags of heroin and
was later caught selling a bag of heroin to an addict. The Crown accepted Miss Gilchrist plea of not guilty.
Since then the appellant agents have established that Mr Lynn and Miss Gilchrist appeared on petition on
these charges on 12 July 2001, some weeks before the incident in charge 2.

[34] On 7 July 2003, the day before the first hearing in the appeal court, the Advocate-depute who was to
conduct the appeal told senior counsel for the appellant that he had come across certain information among
the Crown papers regarding the identification parade in which Miss Gilchrist took part. He gave her a
photocopy of part of the summary attached to the Crown precognition. The passage about the police officer
remark quoted in para 18 was taken from this photocopy. Dock identification evidence

[35] Before the Board, senior counsel challenge to the dock identification evidence was put in two ways: first,
that such evidence was so unfair and unreliable that it was incompatible with a fair trial under Art 6(1);
secondly, that the procedure of dock identification compelled the petitioner to assist the Crown case against
him by exhibiting himself, contrary to his Art 6(1) Convention right against self-incrimination. These are
sweeping submissions and, as the Lord Justice-Clerk pointed out (Holland v HM Advocate (2003), para 30),
if they were accepted, they would mean that dock identification was always unfair to the accused. Right
against self-incrimination

[36] I begin with the second of these submissions, which in my view is devoid of merit. Section 92(1) of the
Criminal Procedure (Scotland) Act 1995 (cap 46) provides that, in general, no part of a trial shall take place
outwith the presence of the accused. This requirement that the accused should usually be present
throughout his trial is designed to promote his interests by ensuring that he can see and hear all the
evidence against him and observe how the proceedings are conducted. It also gives him an opportunity to
alert his solicitor or counsel to any matters that may be relevant to his defence. Section 92(1) therefore
confers an important right on the accused one that is not so fully guaranteed by many other systems. Clearly,
 Page 16

however, by abusing sec 92(1) and refusing to be present, the accused might prevent his trial from going
ahead. So, where necessary, appropriate steps can be taken to ensure that he comes to court and remains
in court during the trial. That does nothing to alter the fact that sec 92(1) is conceived in the interest of the
accused. The requirement for him to be present involves no conceivable breach of Art 6(1) of the
Convention: rather, it is designed to promote the values protected by that Article.

[37] Of course, one side-effect of the accused right to be present when witnesses give their evidence is that
they can see him in the dock. Any potential dangers in witnesses identifying the accused sitting in the dock
as the perpetrator of the crime do not arise, however, out of the legal requirement for him to be present in
court: they would apply equally if he were present voluntarily. Notably, the quality of the witnesses
identification of the accused is not affected one way or the other by the fact that he is compelled to be
present. In these circumstances, given the purpose of sec 92(1), there is no basis for saying that the fact that
a witness may identify the accused when he is present in court means that his Art 6(1) Convention right
against self-incrimination has been infringed. It might well be very different if, when in the dock, the accused
could be required to assist the prosecution witnesses by, say, standing up, or turning round, or showing part
of his body. But nothing like that is permitted. In Beattie v Scott (p 301D) Lord Justice-General Hope
emphatically declared that, when a case comes to trial, the interests of the accused person demand that the
Crown should prove its case against him without any assistance whatever on his part. In the present case,
there was, of course, no question of the appellant being asked to do anything to assist the Crown in proving
their case against him. In these circumstances there was no infringement of his Art 6(1) right against
self-incrimination. Evidence and a fair trial under Article 6(1)

[38] I turn now to senior counsel principal submission on this aspect of the appeal. In the appellant written
case and, it appears, in the appeal court this submission was formulated very broadly to the effect that
evidence derived from the witness identifying the accused in the dock was, by its very nature, so unfair as to
be incompatible with his Art 6(1) rights in all cases. That broad submission cannot be accepted.

[39] It is trite that the Convention does not concern itself with the law of evidence as such. In particular, it
does not lay down that certain forms of evidence should be regarded as inadmissible. Such questions are left
to the national legal systems. What Art 6 does is guarantee a fair trial and so, when the introduction of some
form of evidence is said to have infringed the accused Art 6 rights, the question always is whether admitting
the evidence has resulted in the accused not having a fair trial in the circumstances of the particular case.
So, for instance, in Teixeira de Castro v Portugal (para 34) the European Court of Human Rights observed:

The Court reiterates that the admissibility of evidence is primarily a matter for regulation by national law and
as a general rule it is for the national courts to assess the evidence before them. The Court task under the
Convention is not to give a ruling as to whether statements of witnesses were properly admitted as evidence,
but rather to ascertain whether the proceedings as a whole, including the way in which evidence was taken,
were fair. Statements to a similar effect are to be found in many earlier authorities, including Edwards v UK
(para 34). In Schenk v Switzerland (para 46), where the applicant complained about the use of an unlawful
recording of a telephone conversation, the Court again noted that Art 6 simply guarantees the right to a fair
trial and that the admissibility of evidence was primarily a matter for regulation under national law. The Court
added:

The Court therefore cannot exclude as a matter of principle and in the abstract that unlawfully obtained
evidence of the present kind may be admissible. It has only to ascertain whether Mr Schenk trial as a whole
was fair. The Court went on to note that the rights of the defence were respected: the applicant had the
opportunity of challenging the authenticity of the recording and of opposing its use. The defence had been
able to secure an investigation of the background of the relevant witness and could have examined him in
court. In addition, the Court attached weight to the fact that the recording was not the only evidence on which
the applicant conviction was based and that the domestic court had expressly said that it had relied on
evidence, other than the recording, which pointed to the applicant guilt.
 Page 17

[40] In Tani v Finland the applicant had been convicted of murder. He complained to the European
Commission of Human Rights that one of the prosecution witnesses had identified him when he was brought
into a room where the witness was being questioned. For identification purposes he ought to have been
placed in a room along with others of similar appearance. The Commission reminded itself that the task of
the Convention organs when considering a complaint under Art 6 was to ascertain whether the proceedings,
considered as a whole, including the way in which evidence was taken and submitted, were fair. The
Commission noted that the applicant conviction was based on an assessment of a significant amount of
corroborative circumstantial evidence; that the identification in question had not played any decisive role in
the applicant conviction; that the applicant was assisted by counsel throughout the proceedings and that he
had been able to question the witness in the proceedings before the domestic court. Having assessed all
elements of the domestic proceedings, the Commission rejected the application as manifestly ill-founded.

[41] These authorities show that the proper approach is to consider whether, having regard to all the
elements of the proceedings, including the way in which the identification evidence was obtained, the
accused had a fair trial in terms of Art 6. While one cannot exclude the possibility that, in an extreme case,
the judge could conclude that admitting dock identification evidence would inevitably render the trial unfair,
normally the requirements of Art 6 will not raise any issue of admissibility. So the trial judge was right to
reject the objection to Miss Gilchrist evidence in this case. Similarly, while there might occasionally come a
time in the course of a trial when the judge could conclude that the dock identification evidence had made
the trial unfair, in most cases it will be impossible to reach a view on that matter until the judge has given his
directions to the jury and they have returned their verdict. In effect, therefore, the issue will generally be for
the appeal court to determine after considering all the relevant aspects of the trial.

[42] Two factors which will weigh in favour of the conclusion that an accused did indeed have a fair trial will
be the fact that he was legally represented and that the rights of the defence were respected, with the
accused representative being able to challenge the admissibility of the evidence, to cross-examine the
witness and then to address the jury on the weaknesses of the evidence. It will also be important to consider
any directions which the judge gave to the jury about the identification evidence. The significance of the
contested evidence in the context of the prosecution case as a whole will also be relevant. In particular, was
it one of the principal planks in the case against the accused or was there a substantial body of other
evidence pointing to his guilt? Since decisions are thus liable to depend very much on the circumstances of
the individual case, they are likely to afford only limited guidance in subsequent cases.

[43] In the present case the appeal court found it convenient to split the hearing of the appeal into two parts,
with the alleged breaches relating to the identification evidence being considered by the Lord Justice-Clerk
and two judges in the first part and those relating to non-disclosure being considered by the Lord
Justice-Clerk and two different judges in the second. It is clear from the judgments that the court would have
rejected both grounds of appeal, irrespective of whether they had considered the points separately or
together. But the ultimate question is whether the trial as a whole was fair and that question can only be
decided by the same court considering all its relevant strengths and weaknesses, including any breaches of
specific safeguards in Art 6, together. It follows that, although the issues relating to identification and
non-disclosure were argued in sequence at the hearing before the Board, in deciding whether the appellant
can be said to have had a fair trial, the Board must consider all the relevant elements together.

[44] As I have explained, in this case the police did not hold an identification parade at the time when the
appellant and Mr Foy were charged. It was only after they had appeared on petition that the procurator fiscal
instructed that a parade should be held. The Advocate-depute was unable to explain why no identification
parade had been held initially, but he repudiated any suggestion that the police were now holding fewer
parades than in the past. Moreover, he 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-ins for 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
 Page 18

possible stage.

[45] In the present case the Board are concerned with a trial conducted under solemn procedure. In their
Second Report (para 46.12) the committee appointed by the Secretary of State for Scotland and the Lord
Advocate to examine trial and pre-trial procedures (the Thomson Committee) discussed identification
evidence and concluded, albeit reluctantly, that a distinction should indeed be drawn between solemn and
summary proceedings. That distinction has also been recognised in England where, despite the firmly-rooted
hostility to dock identifications in the Crown Court, for practical reasons they are permitted in driving cases in
the magistrates court (Barnes v Chief Constable, Durham, pp 512, 513). So in this case the Board are
considering the position in solemn proceedings only.

[46] Moreover, the Board are concerned only with the issues in a case where, as here, identification is a live
issue at the trial and the Crown witnesses who identify the accused in court have previously failed to pick him
out at an identification parade. Therefore the appeal does not touch the use of dock identification in other
cases, eg where the witness knows the accused or identification is not in dispute. Nor, of course, does it cast
any doubt on the requirement that a Crown witness identification of the accused should not, generally, be left
to implication (Bruce v HM Advocate; Stewart v HM Advocate, p 251). Lastly, this case is not concerned with
questioning by defence counsel, especially in cases involving several accused, which is designed to show
that counsel client was not the person to whom the witness was referring. Identification evidence and Article
6

[47] In the hearing before the Board the Advocate-depute, Mr Armstrong QC, who dealt with this aspect of
the appeal, accepted that identification parades offer safeguards which are not available when the witness is
asked to identify the accused in the dock at his trial. An identification parade is usually held much nearer the
time of the offence when the witness recollection is fresher. Moreover, placing the accused among a number
of stand-ins of generally similar appearance provides a check on the accuracy of the witness identification by
reducing the risk that the witness is simply picking out someone who resembles the perpetrator. Similarly, the
Advocate-depute did not gainsay the positive disadvantages of an identification carried out when the
accused is sitting in the dock between security guards: the implication that the prosecution is asserting that
he is the perpetrator is plain for all to see. When a witness is invited to identify the perpetrator in court, there
must be a considerable risk that his evidence will be influenced by seeing the accused sitting in the dock in
this way. So a dock identification can be criticised in two complementary respects: not only does it lack the
safeguards that are offered by an identification parade, but the accused position in the dock positively
increases the risk of a wrong identification.

[48] These criticisms are at their most compelling in a case like the present where a witness who has failed
to pick out the accused at an identification parade is invited to try to identify him in court. The prosecutor is
then seeking to use evidence obtained in circumstances which carry a heightened risk of a false
identification, when he knows that the witness was unable to identify under the controlled conditions of an
identification parade. By leading and relying on such evidence, the prosecutor is introducing into the trial this
particular element of risk.

[49] The potential dangers of a dock identification in these circumstances derive from aspects of human
psychology which are the same in similar societies. In this respect witnesses and juries in a Scottish court
are no different from witnesses and juries in, say, an English or Canadian court. So, when the
Advocate-depute invites the witness to identify the accused in such a case, the Crown are deliberately
introducing an adminicle of evidence which certain other systems generally exclude precisely because of the
heightened risk that the identification will be mistaken. The issue in any given case is whether, by doing so,
the Crown have rendered the accused trial unfair in terms of Art 6.

[50] Not surprisingly, the dangers of dock identification have been as obvious to Scottish authors and official
 Page 19

bodies as to those in other parts of the world. Indeed, as long ago as 1833, in his Practice of the Criminal
Law of Scotland (p 628), Alison recognised that a dock identification of the accused was open to the
observation that his being in that situation helped them to believe he was the same.

[51] In 1975 the Thomson Committee recorded that many of those who gave evidence to them had been
very critical of the procedure for identifying the accused in court (para 46.03). Much of the criticism was
directed at the practice of the accused being put into such a prominent position, in the dock between two
uniformed policemen. Most of the committee witnesses thought that the procedure could result in prejudice
to the accused. The committee accepted this criticism and agreed that (para 46.09) in many cases such an
arrangement may cast doubts upon the fairness and accuracy of the identification. The committee
recommended that, where identification was in issue, the Crown should be required to arrange for an
identification parade to be held for each witness who would be called on to identify the accused (para 46.11).
They further recommended that it should not be competent for the Crown at the trial to lead evidence of
identification other than evidence of identification at such a parade. The committee expressly recommended
that (para 46.13) in any case in which a witness has viewed an identification parade and has failed to identify
the accused, it shall not be competent for the Crown to ask that witness to identify the accused in court.

[52] These recommendations were not adopted, but for present purposes the importance of the report lies in
the committee recognition of the risks in a dock identification in such cases risks which the committee clearly
considered to be so significant as to justify a blanket ban on the use of such evidence.

[53] In 1976 the report of the Departmental Committee on Evidence of Identification in Criminal Cases
chaired by Lord Devlin was published. It recommended (chap 8.7) that the discretion of the trial judge to
admit dock identification evidence should be limited and regulated by statute. In particular identification at an
identification parade or in some similar fashion should generally be a precondition to identification in court
and, where a dock identification was permitted, the judge should be required by statute to warn the jury
about the weakness of such evidence in a situation in which there has to be a confrontation and not a picking
out.

[54] Following the publication of that report, the Secretary of State and Lord Advocate set up a working party
chaired by Sheriff Principal Bryden to examine its implications for Scottish criminal procedure. In their report
the working party considered the question of dock identification and came down against recommending any
reform along the lines proposed by the Thomson Committee.

[55] The working party began by acknowledging that (para 3.02): The fallibility of eyewitness evidence on
identification is now generally accepted. This perception of the nature of eyewitness identification evidence
forms the backdrop against which they considered the particular issue of dock identification evidence. Having
summarised the observations which they had received, the working party said this (para 5.12):

We found this question particularly difficult to resolve. On the one hand, we recognised that, in the interests
of fairness to the accused, dock identificationswere undesirable because of the conspicuous position of the
person to be identified. There is clearly a danger that a person might make an identification in court because,
simply by seeing him in the dock, he had become convinced that he was the offender. Because of this
consideration, we were in sympathy with the Devlin Committee suggestion that the witness should previously
have had to take the initiative in picking out the accused in a situation where he was not conspicuous. The
working party then marshalled the counter-arguments and eventually expressed their conclusion in this way
(para 5.16):

Taking all this into account, we have concluded that, although dock identification can be criticised, it would
be more undesirable to make it always conditional upon prior identification at a parade. We see it as vital to
 Page 20

preserve the importance of identification on oath; and the recommendation that identification at a parade be
made a condition precedent of dock identification seems to us to erode this. We feel that it is of paramount
importance to protect the witness right to change his mind at the time of the trial, and the jury right to have
such evidence placed before it: cross-examination can bring out the value (or lack of it) to be attached to
such evidence in the particular circumstances. We were reluctant to differ from the recommendations of the
Thomson Committee in this respect, but in the course of our detailed consideration of this question we came
to the conclusion that the implementation of the Thomson Committee recommendation would require in
practice numerous exceptions to be made, and we found it impossible to formulate a recommendation which
would be flexible enough for the purpose. We therefore decided against proscribing dock identifications
where these have not been preceded by an identification outwith the court. Where an identification parade
has been held at which a witness identified the accused, and the basis of the identification has been noted
and can be established in court, then a leading question should be permitted, such as Is that the man you
identified at the identification parade on [date] as the man who on [24 April] [snatched your handbag] in [the
Canongate, Edinburgh]? It could be left to the cross-examiner to raise the question of mistaken identify and
give the witness the opportunity of correcting any mistake. Again, what matters for present purposes is the
clear recognition by the working party of the danger associated with dock identifications. This is over and
above the fallibility of eyewitness identification evidence in general.

[56] I would understand the Lord Justice-Clerk to be acknowledging this same increased risk when he said
(Holland v HM Advocate (2003), para 39), that dock identification can in some cases be a less satisfactory
form of identification than identification made at an identification parade, or on some other occasion shortly
after the relevant event. Having regard to the safeguards afforded by the laws of evidence and procedure,
the Lord Justice-Clerk concluded that dock identifications could not be said to be unfair per se and should
not be inadmissible (para 33).

[57] I respectfully agree that, except perhaps in an extreme case, there is no basis, either in domestic law or
in the Convention, for regarding such evidence as inadmissible per se. The safeguards to which the Lord
Justice-Clerk draws attention the requirement for corroboration, the opportunity for counsel to contrast the
failure to identify at the parade with the identification in the dock andto comment accordingly are, of course,
important. Their mere existence cannot be used, however, to justify the abstract proposition that in all cases
in Scots law an accused who has been convicted on the basis of a dock identification has necessarily had a
fair trial. In Scots law, as in any other system, the actual circumstances of any given trial have to be
considered before one can say that it was fair. In some cases, for instance, the dock identification evidence
of one witness will have been confirmed by the evidence of witnesses who knew the accused. In other
cases, there may be DNA evidence confirming the identification. In others again, however, the available
corroboration may consist in facts and circumstances which are open to more than one interpretation, or else
it may take the form of a dock identification by another witness who failed to identify at the identification
parade. Similarly, in most trials counsel will have duly cross-examined the witness about the purported
identification, but in some the cross-examination may have been perfunctory. In some trials defence counsel
may have made a powerful submission to the jury on the point; in others counsel may have made little, or
even nothing, of it. The effectiveness of these and other potential safeguards in securing a fair trial depends
on what actually happened in the individual case.

[58] One potentially important safeguard lies in the judge directions to the jury. Indeed the Lord Justice-Clerk
saw it as the most important (Holland v HM Advocate (2003), para 37). It is necessary, however, to
distinguish between directions which a judge gives on the approach to be adopted in relation to eyewitness
identification evidence in general and directions on the dangers of dock identification evidence, in particular.
The Lord Justice-Clerk referred to the Lord Justice-General 1977 Practice Note and to a series of decisions
in which the appeal court have given guidance on eyewitness identification in general. Important as these are
in relation to that matter, they do not deal with the peculiar dangers of a dock identification where a witness
previously failed to identify at an identification parade. Nor is there anything in the excerpts from the Judicial
Handbook to suggest that judges should give a direction of this kind. Doubtless, in practice, judges often do
so. In my respectful view, however, given the importance of the safeguard, judges should give an appropriate
 Page 21

and authoritative direction in all cases of this kind. The general lines of such a direction are obvious, but,
ideally, in any given case its precise form will reflect the particular circumstances.

[59] Applying the approach which I have outlined to the circumstances of this case, one can immediately see
that the appellant had the benefit of counsel, who first objected to the admission of the dock identification
evidence and then cross-examined the witnesses about their identifications, including the point that they had
failed to identify the appellant at the identification parade. Furthermore, although there is no transcript of the
speech which senior counsel for the appellant made to the jury, the passage which I have quoted in para 31
from the judge charge to the jury shows that she made submissions to the effect that the evidence was not
fair and that the jury should not rely on it. It is therefore clear that, in this respect, the rights of the defence
were fully respected.

[60] So far as corroboration of the identification by Miss Gilchrist is concerned, there was the identification of
the appellant by her son, who had picked him out at the identification parade. In addition there was the air
pistol which had been found in the appellant possession some eleven days later and which looked like the
pistol used in the attack on Mr Lynn and Miss Gilchrist. But there was evidence also that air pistols tended to
look the same. So far as charge 3 is concerned, the principal corroboration of the dock identification
evidence of Mr Simpson was to be found in the identification evidence of Miss Gilchrist and Jamie Gilchrist
on charge 2. In addition there was the evidence that the air pistol found in the appellant possession was
similar to the weapon used in the attack on Mr Simpson.

[61] It is important to recall that, as the judge directed the jury, the critical issue in the trial, in relation to
charges 2 and 3 in particular, was the quality of the identification evidence.

[62] Finally, while the judge gave the jury the usual directions on the need for care in relation to identification
evidence, he merely told them that they should remember senior counsel general point that a dock
identification is in her submission not fair and therefore not to be relied upon. All I require of you is to
approach all the evidence of identification with great care and circumspection. Whether deliberately or not,
the way that this particular direction was formulated might be thought to suggest that the judge was
distancing himself from senior counsel submissions on the point. At the very least, neither by associating
himself with her submissions nor otherwise did the judge clearly warn the jury of the particular risks of a dock
identification in a case where the witness had previously failed to identify the appellant at the identification
parade.

[63] These factors will have to be reconsidered in the context of senior counsel further submission that the
trial was unfair in terms of Art 6 because of two distinct failures by the Crown to disclose relevant information
to the defence. Failure to disclose outstanding charges

[64] Senior counsel submitted that, by failing to disclose the information about the charges against Mr Lynn
and Miss Gilchrist relating to drug dealing from the house where they were attacked, the prosecution had
infringed the appellant rights under Art 6(1) of the Convention. The parties accepted that the requirements of
Art 6(1) in this regard had been correctly identified by the European Court of Human Rights in Edwards v UK
(para 36):

The Court considers that it is a requirement of fairness under paragraph 1 of Article 6 (art. 6-1), indeed one
which is recognised under English law, that the prosecution authorities disclose to the defence all material
evidence for or against the accused. In McLeod v HM Advocate (No 2) a court of five judges applied that
guidance when considering the duty of the Crown to make disclosure under Scots law. I put the position
shortly (p 79FG):
 Page 22

Our system of criminal procedure therefore proceeds on the basis that the Crown have a duty at any time to
disclose to the defence information in their possession which would tend to exculpate the accused. I added
that the court would order the production of documents if satisfied that their production would be likely to be
of material assistance to the proper preparation or presentation of the accused defence (p 80EF). Lord
Hamilton said that the duty was to disclose information that is significant to an indicated line of defence or is
likely to be of real importance to any undermining of the Crown case or to any casting of reasonable doubt
on it, (p 83AC).

[65] Before the Board the Advocate-depute, Mr Brailsford QC, who argued this part of the appeal, accepted
these formulations of the Crown duty of disclosure. Similarly, senior counsel for the appellant accepted that
they accurately described the duty of the Crown in terms of Art 6(1). The problem, she said, was not the way
that the duty had been formulated in McLeod but the way in which it had subsequently been interpreted and
applied by the Crown and, in her experience, by the judges. If she had not applied to the court for an order
for disclosure in this case, it was because, in her experience, it would have been unlikely to be granted.

[66] There is no doubt that, historically, in Scotland the Crown have been reluctant to provide the defence
with details of the previous convictions of witnesses in advance of trial. In part, at least, this reluctance is
probably a hangover from a time when the Crown regarded all the information which they gathered when
investigating a case as confidential. This could be and was justified on the ground that it prevented
unnecessary and undesirable diffusion of discreditable information about individuals. Moreover, in practice
this approach was not thought to be liable to prejudice the defence since, at the trial, the prosecutor, acting
as a minister of justice, would put forward everything that needed to be revealed in the interests of both the
prosecution and the defence. On the other side, the defence were free to precognosce the relevant
witnesses and to build up their case in preparation for the trial. But, since at the trial the prosecutor would
correct any false impression about a witness previous convictions, there was no need for the defence to be
told about them in advance.

[67] In more recent years the practice of the Crown has been somewhat modified so as to permit disclosure
of previous convictions where the defence agents can show that they would be relevant to the proposed
defence. In 2002, when the question of disclosure arose in this case, the Book of Regulations for the
Procurator Fiscal Service described the position in this way:

Defence solicitors may be supplied with copies of the criminal records of their clients if they so request in
connection with any matter relating to bail. In relation to any request for the criminal record of a witness, the
defence should be asked to state the basis upon which the previous convictions are sought in relation to
each witness and, in particular, the relevance of any previous convictions to the proposed defence.
Thereafter, procurators fiscal should consider, having regard to the relevant authority, whether the previous
convictions requested ought to be disclosed. In cases of doubt or difficulty or of particular complexity, the
request for disclosure should be reported for the instructions of Crown Counsel. The report should include
copies of any schedules of previous convictions of the witnesses requested and should detail the basis upon
which the previous convictions are sought and, in particular, the relevance of the previous convictions to the
proposed defence.

If any witness gives false evidence regarding their criminal record, it is the duty of the Crown to ensure that
the court is made aware of the true position.

[68] It is a tribute to the traditions of fairness among prosecutors in Scotland that the system which I have
described has caused surprisingly little difficulty in practice. Presumably, this is part of the reason why, as
late as 1988, in HM Advocate v Ashrif the appeal court came down firmly against permitting defence agents
to recover the previous convictions of Crown witnesses. In that case the accused had sought to recover the
previous convictions not from the prosecution, but from the Scottish Criminal Record Office. Moreover, the
 Page 23

decision of the appeal court turned in part on their view of the competency of such a motion in the sheriff
court. Nevertheless, the Lord Justice-Clerk (Ross) also observed (p 569):

In my opinion, there are very sound reasons why a diligence in these terms should not be granted. If access
is to be given to such criminal records of a witness, it could not be confined to solicitors acting for accused
persons but would also be available to accused persons who were appearing on their own behalf. This might
then result in an accused getting full information of all offences of which the witness had been convicted
even though these were not relevant and even though they had occurred many years before. If that were to
be the position, the result might well be that members of the public would be slow to come forward to give
evidence if they knew that their past record was liable to become public and in particular to be disclosed to
an accused person to whom they might be known. This difficulty was recognised by the Thomson Committee
who stated their ultimate conclusion in para 27.07 as follows: While we have some sympathy with the view
that the defence should be able to use previous convictions in the same way as the Crown, bearing in mind
the general public interest, we are not persuaded that it is desirable that the previous convictions of
witnesses should be disclosed to the accused person or his solicitor.

[69] More recently, under the influence of Art 6(1) of the Convention, the weaknesses of this approach have
become apparent. In Maan, Petr the accused was charged on indictment with assault. He lodged a special
defence of self-defence and gave notice of an intention to attack the character of the complainer and the
other two Crown witnesses. He sought to recover the previous convictions of the complainer and these
witnesses, as well as those relating to a third witness who had been cited for the defence. The Crown
resisted the motion and relied on HM Advocate v Ashrif. Adopting the general approach in McLeod v HM
Advocate (No 2), Lord Macfadyen declined to follow Ashrif and ordered production of the previous
convictions of all four witnesses. He said (para 27):

In my opinion, provided the witnesses previous convictions are relevant to a legitimate attack on character or
to their credibility, the material sought would plainly be relevant to his defence. It is therefore material which
the petitioner is prima facie entitled to have disclosed to him. Moreover, in my view he is prima facie entitled
to have it disclosed to him in advance of the trial. His right is to have disclosed to him material necessary for
the proper preparation as well as the proper presentation of his defence. Possession of information about the
witnesses relevant criminal records would enable the petitioner counsel or solicitor to make proper
preparation for the cross-examination of the witnesses in question. Lack of that information in advance would
not wholly preclude the contemplated lines of cross-examination, but would make embarking on them a
much more uncertain course. Matters of credibility and character depend very much on the impressions
made on the jury, and cross-examination might well be less effective if embarked upon without knowledge of
the detail of the witnesses records. An impression unfairly unfavourable to the petitioner might be made on
the jury if cross-examination were embarked upon on his behalf, appeared to be unsuccessful, then was
followed by re-examination which showed that the cross-examiner had been ill-informed.

[70] As Lord Macfadyen shows, it is in principle wrong that at trial the prosecutor should have official
information about witnesses previous convictions which has been withheld from the defence. The
presentation of the defence case is liable to be less effective if the accused counsel and agents do not have
the information in advance of the trial. Reflecting a shift in the position of the Crown, in presenting his
argument before the Board the Advocate-depute did not seek to justify this situation by reference to the
supposed practical difficulties identified in Ashrif which, it is fair to say, have not been experienced in other
jurisdictions where previous convictions have long been supplied to the defence. Nor did he advance any
other reason why the public interest required that this information should be withheld.

[71] Although the approach recommended in the Book of Regulations constitutes a significant advance on
the traditional stance of the Crown, it still requires procurators fiscal to decide whether the circumstances are
such that, in the public interest, the witnesses previous convictions should be revealed to the accused
representatives. That procedure is open to the kind of criticism expressed by the European Court in Rowe
 Page 24

and Davis v UK (p 30). Having explained that it is not the role of the European Court to decide whether or not
non-disclosure on public interest grounds was strictly necessary, the Court continued:

62. Instead the European Court task is to ascertain whether the decision-making procedure applied in each
case complied, as far as possible, with the requirements of adversarial proceedings and equality of arms and
incorporated adequate safeguards to protect the interests of the accused.

63. During the applicants trial at first instance the prosecution decided, without notifying the judge, to
withhold certain relevant evidence on grounds of public interest. Such a procedure, whereby the prosecution
itself attempts to assess the importance of concealed information to the defence and weigh this against the
public interest in keeping the information secret, cannot comply with the above-mentioned requirements of
article 6(1).

[72] Although it is open to the defence to apply to the Court for an order for production, the scheme
envisaged by the Book of Regulations places procurators fiscal and Crown counsel in the invidious position
of having to judge the relevance of previous convictions to a defence, the lines of which the accused
representatives are generally under no obligation to reveal. In reality, however, the scheme is more deeply
flawed since it is obvious that a reasonably competent defence agent or counsel, considering how to
approach the examination or cross-examination of a witness, would wish to know whether the witness had
any previous convictions and, if so, their nature. Indeed it is precisely the kind of thing he would want to
know. What use, if any, the agent or counsel chooses to make of the information is a matter for him and he
may well not be able to decide until he actually has it. But, at the very least, the information will help in
assessing the strengths and weaknesses of the witness. Therefore, information about the previous
convictions of any witnesses to be led at the trial would be likely to be of material assistance to the proper
preparation or presentation of the accused defence. Under Art 6(1) the accused agents and counsel are
accordingly entitled to have that information disclosed so that they can prepare his defence. Since in this way
both sides will have access to this information at trial, the accused right to equality of arms will be respected.
The observations to the contrary effect in HM Advocate v Ashrif should not be followed.

[73] Of course, in the present case the defence agents did not ask for details of previous convictions of Mr
Lynn but, rather, for information about any outstanding criminal charges that he faced. In particular, they
wished to know whether he had been indicted or was due to be indicted in the near future. Again, for the
same kinds of reasons, this is information which would be likely to be of material assistance to the proper
preparation or presentation of the accused defence. So, in principle, in terms of Art 6(1) the Crown should
disclose it. As a rule, there could be no good reason not to disclose that the witness had been charged.
Similarly, in solemn cases, where the witness has been indicted, the defence agents can be told. Where no
decision has yet been taken about indicting the witness, the defence agents should be told that.

[74] Details of previous convictions are computerised and procurators fiscal can readily obtain the necessary
information. Details of outstanding charges, especially in summary proceedings, may well be much more
difficult to discover, if, for example, a different office is dealing with the matter. So, while the duty of those
handling the Crown case will be to disclose any outstanding charges of which they know, a general duty to
search for outstanding charges would be unduly burdensome. If Crown officials are asked about a particular
witness, they need only take such steps to search for any outstanding charges as are appropriate, having
regard to any indications given in the defence request.

[75] At first sight, the letters from Crown Office in this case might give the impression that, without further
specification, the officials would not have known whether there were any charges against Mr Lynn. That is
plainly not the case, however. Mr Lynn had appeared on petition on 12 July 2001 and so his trial would have
had to begin within twelve months of that date. He and Miss Gilchrist were indeed indicted to a sitting of the
High Court in July 2002 and High Court indictments are handled under the direction of Crown Office.
 Page 25

Therefore, as the Advocate-depute conceded, in February 2002 officials in Crown Office would either have
known, or have readily been able to discover, that there were outstanding charges against Mr Lynn (and
Miss Gilchrist) relating to drug dealing from the very house where the assault had taken place. The officials
simply chose not to disclose that information, apparently on the view that the defence agents had not shown
that it was necessary for the proper preparation of the appellant defence. That was, however, an untenable
conclusion since, quite plainly, a reasonably competent agent or counsel preparing the defence would have
wished to know that, in another context, the Crown were alleging that, shortly before, both the complainers
had been involved in drug dealing from the very house where they were attacked. Such information would
help to complete the picture both of the complainers and of their milieu. In that sense, it was highly relevant
to the preparation of the defence and should have been disclosed, whether or not the defence agents asked
for it and whether or not they sought a court order. Moreover, the information was not any the less relevant
because in the end counsel might choose not to refer to it at trial. The agents and counsel were entitled to
have the information on which to reach their own independent judgment on how best to proceed. In these
circumstances I am satisfied that, by failing to provide the defence with information about the outstanding
charges against Mr Lynn and Miss Gilchrist, the Crown infringed the appellant Art 6(1) Convention right.
Failure to disclose remark after the identification parade

[76] Both before the appeal court and again before the Board, the Crown accepted that they had infringed
the appellant Art 6(1) Convention right by failing to tell the defence about the remark which the police officer
had made to Miss Gilchrist after the identification parade. Did the appellant have a fair trial in terms of Article
6(1)?

[77] It is now necessary to consider whether, taken as a whole, the appellant trial was fair in terms of Art
6(1).

[78] The fact that he was represented by counsel and a solicitor who could investigate the case on his behalf,
who could, and did, object to the admission of evidence, who examined and cross-examined the witnesses
and who made submissions to the jury is a positive feature, pointing towards the trial being fair.

[79] On the other hand, the appellant rights under Art 6(1) were breached by the Crown failure to disclose the
outstanding charges against Mr Lynn and Miss Gilchrist as well as by their failure to tell the defence what the
police officer had said to Miss Gilchrist after the identification parade. In the appeal court both the Lord
Justice-Clerk and Lord Hamilton considered that, on any view, these failures had not resulted in any
substantial prejudice to the appellant (Holland v HM Advocate (2004), paras 4144 and 5459 respectively).

[80] So far as the failure to disclose the outstanding charges is concerned, at the trial the Advocate-depute
called Mr Lynn sister, Anne Lynn, as a witness. She gave evidence that Mr Lynn and Miss Gilchrist were
drug dealers and were involved in prostitution. The Advocate-depute did not suggest to Miss Lynn that her
evidence on this point was untruthful and senior counsel did not take the matter any further. The Lord
Justice-Clerk considered that Miss Lynn evidence put the defence in the best possible position since the
information came from a source within the family and had emerged without defence counsel having to run
the risk that, by questioning the complainers about their involvement in drugs, she would have exposed the
appellant to questioning about his own (significant) previous convictions.

[81] Senior counsel made the point, however, that, if she had known about the outstanding charges and had
been able to put them to the complainers, this would have reinforced Miss Lynn evidence and so would have
helped, for instance, to undermine the credibility of Miss Gilchrist who had claimed not to know what was
meant by gear. She accepted that cross-examination on the outstanding charges would have come within
the terms of sec 266(4)(b) of the Criminal Procedure (Scotland) Act 1995, but submitted that in the
circumstances she might well have been able to persuade the judge to exercise his wide discretion to refuse
any application by the Advocate-depute to cross-examine the appellant on his previous convictions (Leggate
 Page 26

v HM Advocate, p 145).

[82] Clearly, if the appellant convictions had been revealed to the jury, this might well have been a disastrous
consequence, to adopt the Lord Justice-Clerk description. But, given what Miss Lynn said in evidence and
Miss Gilchrist claim that she did not know what was meant by gear, I am unable to say that
cross-examination of the complainers about the outstanding drugs charges would inevitably have led to the
Crown being permitted to cross-examine the appellant on his previous convictions. Information about the
outstanding charges might therefore have played a useful part in the defence effort to undermine the
credibility of the Crown principal witness on charge 2. At least, that possibility cannot be excluded. One
cannot tell, for sure, what the effect of such cross-examination would have been. But, applying the test
suggested by Lord Justice-General Clyde in Hogg v Clark (p 10) I cannot say that the fact that counsel was
unable to cross-examine in this way might not possibly have affected the jury (majority) verdict on charge 2
and hence their verdict on charge 3.

[83] Similarly, it is hard to make any precise assessment of the significance of the Crown failure to disclose
the remark made to Miss Gilchrist after the identification parade. One can be sure, however, that, if the
defence had been aware of it, senior counsel would have deployed it in her cross-examination of Miss
Gilchrist. It would have been one more reason for suggesting to her and ultimately to the jury that her dock
identification of the appellant was not to be trusted. By withholding the information, the Crown deprived the
defence of the opportunity to advance this additional argument on the crucial issue of identification. Again, I
cannot say that this might not possibly have affected the jury verdict.

[84] The two Crown failures to disclose information are therefore properly to be seen not as separate and
isolated infringements of Art 6(1), but as infringements that each had a bearing on Miss Gilchrist dock
identification of the appellant, which was one of the central elements of the prosecution case at the trial. For
the reasons which I have already given, the dock identifications by Miss Gilchrist and Mr Simpson, who had
failed to pick out the appellant at the identification parade, carried with them significant risks of mistake, over
and above the risks of mistake which go with any eyewitness identification evidence. Unfortunately, the trial
judge gave the jury no proper warning about those additional risks.

[85] At the trial the Crown also relied, by way of corroboration, on Jamie Gilchrist evidence and on the
appellant possession of an air pistol which resembled the one used in the assaults and robberies. None the
less, as the trial judge told the jury, the critical issue in relation to charges 2 and 3 was the quality of the
identification evidence. Taking all the relevant factors together, I have reached the conclusion that in this
case the failures of the Lord Advocate representatives to disclose information to the defence and the
Advocate-depute reliance on the dock identifications of Miss Gilchrist and Mr Simpson were incompatible
with the appellant core Art 6 Convention right since, taken together, they resulted in an unfair trial. Since a
conviction resulting from an unfair trial cannot stand, the appellant conviction of charges 2 and 3 must be
quashed.

[86] I would accordingly propose that, in the exercise of the Board powers under Art 4(1)(a) of the Judicial
Committee (Powers in Devolution Cases) Order 1999 (SI 1999/1320), the appeal should be allowed, the
verdict of the jury set aside and the appellant conviction of charges 2 and 3 on the indictment quashed.
Thereafter the case should be remitted to the appeal court to decide whether to grant the Crown authority to
bring a new prosecution in terms of sec 119 of the Criminal Procedure (Scotland) Act 1995 (cap 46).

Baroness Hale of Richmond [87] I am in complete agreement with the opinion of my noble and learned friend
Lord Rodger of Earlsferry and for the reasons that he gives would make the orders which he proposes.

Lord Carswell [88] I have had the advantage of reading in draft the opinion of my noble and learned friend
 Page 27

Lord Rodger of Earlsferry. For the reasons which he has given I too would allow the appeal and make the
order which he proposes.

The Court allowed the appeal and remitted the case to the High Court of Justiciary to decide whether to grant
the Crown authority to bring a new prosecution.

Copyright 2004 Scottish Council of Law Reporting

Scottish Case Digests/2005/Holland v HM Advocate - 2005 Scot (D) 1/5

2005 Scot (D) 1/5

Holland v HM Advocate
[2005] UKPC D1

Privy Council

Lord Bingham of Cornhill, Lord Hope of Craighead, Lord Rodger of Earlsferry, Baroness Hale of
Richmond and Lord Carswell

11 May 2005

Criminal evidence and procedure - Devolution issue - Right to fair trial - Dock identification - Criminal
Procedure (Scotland) Act 1995, s 92(1) - European Convention on Human Rights, art 6(1).

The petitioner was charged with, inter alia, two offences of assault and robbery. The victims of the first
offence were L and G. The victim of the second offence was S. At an identification parade, L, who had poor
sight, could not identify anyone; G's son, J, who had arrived on the scene before the robbers had left,
identified the petitioner; and G and S each picked out two different stand-ins. At the trial, G, J and S made
dock identifications of the petitioner. L was not asked to do so because of his poor sight. The petitioner was
convicted. He appealed, on the grounds that dock identification evidence was so unfair and unreliable that it
was incompatible with a fair trial under art 6(1) of the European Convention on Human Rights; that the
procedure of dock identification had compelled him to assist the Crown case against him by exhibiting
himself, contrary to his art 6(1) right against self-incrimination; and that the Crown had failed to disclose
certain information to the defence.

The appeal would be allowed.

(1) The right of the petitioner against self-incrimination, guaranteed by art 6(1), had not been infringed by the
procedure of dock identification. Section 92(1) of the Criminal Procedure (Scotland) Act 1995 provided that,
in general, 'no part of a trial shall take place outwith the presence of the accused'. That requirement that the
accused should usually be present throughout his trial was designed to promote his interests, and involved
no conceivable breach of art 6(1). Of course, one side effect of the accused's right to be present when
witnesses gave their evidence was that they could see him in the dock. Any potential dangers in witnesses
identifying the accused in the dock as the perpetrator of the crime did not arise, however, out of the legal
requirement for him to be present in court: they would apply equally if he were present voluntarily. Moreover,
the quality of the witnesses' identification of the accused was not affected one way or the other by the fact
that he was compelled to be present.
 Page 28

(2) There was no basis, except perhaps in an extreme case, either in domestic law or under the Convention,
for regarding dock identifications as inadmissible per se. However, the mere existence of safeguards such as
the requirement for corroboration, and the opportunity for counsel to contrast a failure to identify at an
identification parade with identification in the dock and to comment accordingly, could not be used to justify
the abstract proposition that in all cases in Scots law an accused who had been convicted on the basis of a
dock identification had necessarily had a fair trial. In Scots law, as in any other system, the actual
circumstances of any given trial had to be considered before it could be said that it was fair. In the instant
case, the judge had not clearly warned the jury of the particular risks of a dock identification in a case where
the witness had previously failed to identify the accused at an identification parade. The advocate depute's
reliance on the dock identifications, together with the failures of the Lord Advocate's representatives to
disclose information to the defence, had rendered the petitioner's trial unfair within the terms of art 6(1).
Accordingly, in the exercise of the Board's powers under art 4(1)(a) of the Judicial Committee (Powers in
Devolution Cases) Order 1999, the petitioner's conviction would be quashed, and the case would be remitted
to the appeal court to decide whether to grant the Crown authority to bring a new prosecution in terms of
s 119 of the 1995 Act.

Kate O'Hanlon, Barrister.

Holland v HM Advocate

[2005] UKPC D1, (2005) Times, 1 June, 2005 SCCR 417, 18 BHRC 500, [2005] 4 LRC 445, [2005] All ER
(D) 193 (May)

Court: PC

Judgment Date: 11/05/2005

Case History
Annotations Case Name Citations Court Date Signal
[2005] UKPC D1, (2005)
Times, 1 June, 2005
Holland v HM Advoc- SCCR 417, 18 BHRC
-- PC 11/05/2005
ate 500, [2005] 4 LRC 445,
[2005] All ER (D) 193
(May)
HC of
Holland v HM Advoc- 2004 SLT 762, 2004
Reversing Justici- 16/06/2004
ate SCCR 452
ary (Sc)
HC of
Holland v HM Advoc- 2003 SLT 1119, 2003
Reversing Justici- 21/08/2003
ate SCCR 616
ary (Sc)

Cases referring to this case

Annotations: All Cases Court: ALL COURTS
Sort by: Judgment Date (Latest First)
Treatment Case Name Citations Court Date Signal
[2010] UKSC 6, (2010)
Allison v HM Advocate
Applied Times, 17 February, SC 10/02/2010
(Scotland)
2010 SC (UKSC) 19,
 Page 29

2010 SLT 261, 2010

SCCR 277, [2010] All
ER (D) 103 (Feb)
[2010] UKSC 7, 2010
SC (UKSC) 28, 2010
McInnes v HM Advoc-
Considered SLT 266, 2010 SCCR SC 10/02/2010
ate (Scotland)
286, [2010] All ER (D)
101 (Feb)
Considered HM Advocate v Kelly 2010 SCCR 86 Sh Ct 13/11/2009
[2008] UKPC 46, (2008)
Times, 5 November,
McDonald v HM Ad- 2010 SC (PC) 1, 2008
Considered PC 16/10/2008
vocate SLT 993, 2008 SCCR
954, [2008] All ER (D)
253 (Oct)
HC of
McInnes v HM Advoc- [2008] HCJAC 53, 2009
Considered Justici- 26/09/2008
ate JC 6, 2008 SCCR 869
ary (Sc)
HC of
[2008] HCJAC 26, 2008
Considered Fraser v HM Advocate Justici- 06/05/2008
SCCR 407
ary (Sc)
[2008] UKPC 11, 72
WIR 108, [2008] 4 LRC
Applied Pipersburgh v R PC 22/02/2008
345, [2008] All ER (D)
334 (Feb)

Cases considered by this case

Annotations: All CasesCourt: ALL COURTS
Sort by: Judgment Date (Latest First)
Treatment Case Name Citations Court Date Signal
HC of
McLeod v HM Advoc- 1998 JC 67, 1998 SLT
Applied Justici- 19/12/1997
ate 233, 1998 SCCR 77
ary (Sc)

Catchwords & Digest

CRIMINAL LAW, EVIDENCE AND PROCEDURE - APPEAL FROM SCOTLAND TO PRIVY COUNCIL -
DEVOLUTION ISSUE - RIGHT TO FAIR TRIAL - DOCK IDENTIFICATION - CRIMINAL PROCEDURE
(SCOTLAND) ACT 1995, S 92(1) - EUROPEAN CONVENTION ON HUMAN RIGHTS, ART 6(1).
The petitioner was charged with, inter alia, two offences of assault and robbery. The victims of the first
offence were L and G. The victim of the second offence was S. At an identification parade, L, who had poor
sight, could not identify anyone; G's son, J, who had arrived on the scene before the robbers had left,
identified the petitioner; and G and S each picked out two different stand-ins. At the trial, G, J and S made
dock identifications of the petitioner. L was not asked to do so because of his poor sight. The petitioner was
convicted.
He appealed, on the grounds that dock identification evidence was so unfair and unreliable that it was
incompatible with a fair trial under art 6(1) of the European Convention on Human Rights; that the procedure
of dock identification had compelled him to assist the Crown case against him by exhibiting himself, contrary
to his art 6(1) right against self-incrimination; and that the Crown had failed to disclose certain information to
the defence.
 Page 30

Held - The appeal would be allowed. (1) The right of the petitioner against self-incrimination, guaranteed by
art 6(1), had not been infringed by the procedure of dock identification. Section 92(1) of the Criminal
Procedure (Scotland) Act 1995 provided that, in general, 'no part of a trial shall take place outwith the
presence of the accused'. That requirement that the accused should usually be present throughout his trial
was designed to promote his interests, and involved no conceivable breach of art 6(1). Of course, one side
effect of the accused's right to be present when witnesses gave their evidence was that they could see him in
the dock. Any potential dangers in witnesses identifying the accused in the dock as the perpetrator of the
crime did not arise, however, out of the legal requirement for him to be present in court: they would apply
equally if he were present voluntarily. Moreover, the quality of the witnesses' identification of the accused
was not affected one way or the other by the fact that he was compelled to be present.
(2) There was no basis, except perhaps in an extreme case, either in domestic law or under the Convention,
for regarding dock identifications as inadmissible per se. However, the mere existence of safeguards such
as the requirement for corroboration, and the opportunity for counsel to contrast a failure to identify at an
identification parade with identification in the dock and to comment accordingly, could not be used to justify
the abstract proposition that in all cases in Scots law an accused who had been convicted on the basis of a
dock identification had necessarily had a fair trial. In Scots law, as in any other system, the actual
circumstances of any given trial had to be considered before it could be said that it was fair. In the instant
case, the judge had not clearly warned the jury of the particular risks of a dock identification in a case where
the witness had previously failed to identify the accused at an identification parade. The advocate depute's
reliance on the dock identifications, together with the failures of the Lord Advocate's representatives to
disclose information to the defence, had rendered the petitioner's trial unfair within the terms of art 6(1).
Accordingly, in the exercise of the Board's powers under art 4(1)(a) of the Judicial Committee (Powers in
Devolution Cases) Order 1999, the petitioner's conviction would be quashed, and the case would be remitted
to the appeal court to decide whether to grant the Crown authority to bring a new prosecution in terms of s
119 of the 1995 Act.

Scottish Case Digests/2004/Holland v HM Advocate - 2004 Scot (D) 27/6

2004 Scot (D) 27/6

Holland v HM Advocate

Appeal Court, High Court of Justiciary

Lord Justice Clerk (Gill), Lord Penrose, Lord Hamilton

16 June 2004

Criminal - Appeal - Duty of Crown to disclose material information to defence - Armed robbery - Failure by
Crown to disclose involvement of complainers in drug dealing and remark made by police officer following
unsuccessful identification parade - Whether miscarriage of justice.

The appellant was convicted of, inter alia, two charges of armed robbery. The first robbery was committed in
a flat. The two occupiers of the flat, G and L, were the complainers. At the trial the Crown relied, inter alia, on
the identification of the appellant in court by G. The second robbery was committed at shop premises and the
Crown relied, inter alia, on the identification of the appellant by the shop manager. The defence was that the
identification evidence was unreliable, especially since both of the complainers had failed to identify the
appellant in identification parades. In this appeal the appellant advanced two grounds of appeal, both based
upon alleged breaches by the Crown of its duty to disclose material information to the defence. The first
alleged breach was the failure to inform the defence that G and L were facing charges for drug offences. The
second alleged breach was the failure to disclose a remark that G reported having been made to her by a
 Page 31

police officer following the identification parade, namely that she had not done too well. Before the trial the
defence had sought information from the Crown about outstanding criminal charges against L but that
request had been refused. The Crown submitted that there was no general obligation to disclose information
regarding the character of a Crown witness as that would not generally exculpate an accused and that the
defence request for information had not explained why the material sought was material or relevant. The
Crown also submitted that the defence had clearly had information regarding L's drug dealing but had
chosen not to ask L or G about it. Attacking the character of the complainers would have risked opening up
reference to the appellant's character and his criminal record. The Crown conceded that the failure to notify
the defence of the reported police remark was a breach of its obligation of disclosure but argued that in the
circumstances there had been no miscarriage of justice.

The appeal would be refused.

Both grounds of appeal failed. In relation to the failure to disclose the drug dealing charges pending against
the complainers, the Crown was not in breach of its obligation. There was no reason why it would have been
immediately apparent to the Crown that the pending prosecution of L and G was material to the defence of
the appellant on a charge of having robbed them. Furthermore, when the Crown asked the defence agents to
explain why they considered the information sought to be material, it received no satisfactory answer. The
Crown was therefore entitled to refuse to disclose the information sought. In any event, even if the Crown
was in breach of its obligation, in the circumstances there was no miscarriage of justice. The defence had
grounds to suspect that L and G were engaged in drug dealing and could have attempted to recover the
necessary information by petition to the court or asked G and L about drug dealing, but had taken neither of
these steps. In relation to the second charge, the failure to disclose the remark had not caused a miscarriage
of justice. The jury was aware of G's misidentifications at the identification parade. In any case even without
G's evidence there was still ample evidence to convict the appellant. Accordingly the appeal would be
refused.

For an earlier appeal based on the question of dock identification, see Holland v HM Advocate 2003 Scot (D)
19/8, 2003 SCCR 616, 2003 SLT 1119.

M E Scott, QC, Latif (instructed by Drummond Miller, WS) for the appellant

Turnbull, QC, Advocate Depute (instructed by Crown Agent) for the respondent

Caroline Dale-Risk, LLB, Dip LP, MPhil

Holland v HM Advocate

2004 SLT 762, 2004 SCCR 452

Court: HC of Justiciary (Sc)

Judgment Date: 16/06/2004

Case History
Annotations Case Name Citations Court Date Signal
[2005] UKPC D1, (2005)
Holland v HM Advoc-
-- Times, 1 June, 2005 PC 11/05/2005
ate
SCCR 417, 18 BHRC
 Page 32

500, [2005] 4 LRC 445,

[2005] All ER (D) 193
(May)
HC of
Holland v HM Advoc- 2004 SLT 762, 2004
Reversing Justici- 16/06/2004
ate SCCR 452
ary (Sc)
HC of
Holland v HM Advoc- 2003 SLT 1119, 2003
Reversing Justici- 21/08/2003
ate SCCR 616
ary (Sc)

Catchwords & Digest

CRIMINAL LAW, EVIDENCE AND PROCEDURE - APPEAL - DUTY OF CROWN TO DISCLOSE

MATERIAL INFORMATION TO DEFENCE - ARMED ROBBERY - FAILURE BY CROWN TO DISCLOSE
INVOLVEMENT OF COMPLAINERS IN DRUG DEALING AND REMARK MADE BY POLICE OFFICER
FOLLOWING UNSUCCESSFUL IDENTIFICATION PARADE - WHETHER MISCARRIAGE OF JUSTICE
The appellant was convicted of, inter alia, two charges of armed robbery. The first robbery was committed in
a flat. The two occupiers of the flat, G and L, were the complainers. At the trial the Crown relied, inter alia, on
the identification of the appellant in court by G. The second robbery was committed at shop premises and the
Crown relied, inter alia, on the identification of the appellant by the shop manager. The defence was that the
identification evidence was unreliable, especially since both of the complainers had failed to identify the
appellant in identification parades. In this appeal the appellant advanced two grounds of appeal, both based
upon alleged breaches by the Crown of its duty to disclose material information to the defence. The first
alleged breach was the failure to inform the defence that G and L were facing charges for drug offences. The
second alleged breach was the failure to disclose a remark that G reported having been made to her by a
police officer following the identification parade, namely that she had not done too well. Before the trial the
defence had sought information from the Crown about outstanding criminal charges against L but that
request had been refused. The Crown submitted that there was no general obligation to disclose information
regarding the character of a Crown witness as that would not generally exculpate an accused and that the
defence request for information had not explained why the material sought was material or relevant. The
Crown also submitted that the defence had clearly had information regarding L's drug dealing but had
chosen not to ask L or G about it. Attacking the character of the complainers would have risked opening up
reference to the appellant's character and his criminal record. The Crown conceded that the failure to notify
the defence of the reported police remark was a breach of its obligation of disclosure but argued that in the
circumstances there had been no miscarriage of justice.
Held - The appeal would be refused. Both grounds of appeal failed. In relation to the failure to disclose the
drug dealing charges pending against the complainers, the Crown was not in breach of its obligation. There
was no reason why it would have been immediately apparent to the Crown that the pending prosecution of L
and G was material to the defence of the appellant on a charge of having robbed them. Furthermore, when
the Crown asked the defence agents to explain why they considered the information sought to be material, it
received no satisfactory answer. The Crown was therefore entitled to refuse to disclose the information
sought. In any event, even if the Crown was in breach of its obligation, in the circumstances there was no
miscarriage of justice. The defence had grounds to suspect that L and G were engaged in drug dealing and
could have attempted to recover the necessary information by petition to the court or asked G and L about
drug dealing, but had taken neither of these steps. In relation to the second charge, the failure to disclose the
remark had not caused a miscarriage of justice. The jury was aware of G's misidentifications at the
identification parade. In any case even without G's evidence there was still ample evidence to convict the
appellant. Accordingly the appeal would be refused.

Holland v HM Advocate
 Page 33

2003 SLT 1119, 2003 SCCR 616

Court: HC of Justiciary (Sc)

Judgment Date: 21/08/2003

Case History
Annotations Case Name Citations Court Date Signal
[2005] UKPC D1, (2005)
Times, 1 June, 2005
Holland v HM Advoc- SCCR 417, 18 BHRC
-- PC 11/05/2005
ate 500, [2005] 4 LRC 445,
[2005] All ER (D) 193
(May)
HC of
Holland v HM Advoc- 2004 SLT 762, 2004
Reversing Justici- 16/06/2004
ate SCCR 452
ary (Sc)
HC of
Holland v HM Advoc- 2003 SLT 1119, 2003
Reversing Justici- 21/08/2003
ate SCCR 616
ary (Sc)

Cases referring to this case

Annotations: All Cases Court: ALL COURTS
Sort by: Judgment Date (Latest First)
Treatment Case Name Citations Court Date Signal
[2007] HCJAC 57, 2007 HC of
Murphy v HM Advoc-
Considered SLT 1079, 2007 SCCR Justici- 09/10/2007
ate
532 ary (Sc)

Catchwords & Digest

CRIMINAL LAW, EVIDENCE AND PROCEDURE - IDENTIFICATION OF ACCUSED - DOCK

IDENTIFICATION - COMPLAINERS MAKING DOCK IDENTIFICATION AFTER FAILING TO PICK OUT
ACCUSED IN IDENTIFICATION PARADE - WHETHER DOCK IDENTIFICATION UNFAIR AND
UNRELIABLE - WHETHER PROCEDURE COMPELLING ACCUSED TO PROVIDE EVIDENCE AGAINST
HIMSELF - WHETHER CONTRARY TO RIGHT TO FAIR TRIAL - SUFFICIENCY OF IDENTIFICATION
EVIDENCE - EUROPEAN CONVENTION ON HUMAN RIGHTS, ART 6
The appellant was convicted, inter alia, of two charges of assault and robbery. In respect of the first charge
one of the complainers (G) attended an identification parade at which she picked out two stand-ins. In
relation to the second charge the complainer (S) also attended an identification parade and identified two
stand-ins. At the trial counsel objection was taken to either G or S being asked whether they could identify
their assailant in court. The trial judge repelled the objections and the complainers identified the appellant as
being one of the robbers. G also picked out the co-accused as being one of the robbers, although he was not
charged with the robbery. The appellant was convicted and appealed. This hearing was concerned with two
grounds of appeal. The first was that the trial judge erred in repelling the objection to the proposed dock
identification (a) because such identification was unfair and unreliable per se, and (b) because it had the
effect of compelling the accused to assist the Crown by providing evidence against himself contrary to the
law of Scotland and to the accused's right to a fair trial in terms of art 6 of the European Convention on
Human Rights. The second ground was that (i) in the circumstances the trial judge should have excluded the
proposed dock identifications of G and S; and (ii) even if it was properly admitted, the trial judge should in
due course have withdrawn the case from the jury, in terms of s 106(3)(b) of the Criminal Procedure
 Page 34

(Scotland) Act 1995, on the basis that the evidence was such that no reasonable jury, properly directed,
could convict on these charges. The Crown submitted that the practice of dock identification had been
repeatedly recognised without its fairness having been doubted and argued that there were adequate
safeguards to ensure that the accused had a fair trial.
Held - The appeal so far as based on these two grounds would be refused.
(1) While dock identification could in some cases be said to be a less satisfactory form of identification than
identification made at an identification parade, or on some other occasion shortly after the relevant event, it
could not be said to be unfair per se. Rather it was a competent and important part of criminal procedure.
There might be good reason for either the failure to hold an identification parade or for a witness failing to
identify the accused at an identification parade and the Crown should not be prevented by an inflexible rule
from having the accused identified in court. While a witness might be influenced by the accused's
conspicuous position in the dock, experience showed that in many cases the witness would be able to
identify the accused wherever he was sitting. Furthermore important safeguards were provided by the laws
of evidence and procedure, including the law of corroboration, the opportunity given to the defence to found
on an earlier failure to identify and, most importantly, the judge's charge.
(2) The submission that dock identification involved the accused's being compelled to exhibit himself for
identification and thereby to assist the Crown case was unsound. There was a material distinction between
the case where the accused was made to give active assistance to the prosecution at his trial and the case
where his participation in the trial was passive only. There was active assistance, and therefore a
miscarriage of justice, where the accused was made to assist in the identification process. However it could
not be said that an accused person was compelled to assist the Crown case by the mere fact that his
presence in court made it possible for a witness to identify him. Nor could such passive assistance be
regarded as depriving the accused of his protection against self-incrimination and so infringing his rights
under art 6 of the Convention. Accordingly the first ground of appeal failed.
(3) The trial judge had not erred in repelling the objection to the proposed dock identifications, nor in failing to
sustain the appellant's submission that the dock identifications were such that no reasonable jury would be
entitled to convict. On the facts so far as known to the trial judge when the objection was taken, there was
nothing to compel him to the conclusion that the admission of the evidence would be so irremediably unfair
that he had no option but to exclude it. Moreover on basis of the evidence in this case, the trial judge could
not have concluded that no reasonable jury could convict on these charges. Clear and strong directions had
been given on the need to take special care in the assessment of identification evidence. Accordingly no
miscarriage of justice had occurred on this ground.