The defendant appealed his convictions for robbery. He had been subject to a dock identification, and he complained that the prosecution had failed in its duties of disclosure.
Held: The combination of several failings meant that the defendant had not received a fair trial, and the appeal was allowed. The practice of dock identification was intended often as a protection of the accused, but the court had to look at the particular case. The Convention did not lay down that certain forms of evidence were inadmissible, but guaranteed the right to a fair trial, and it was against that test that the particular situation had to be judged. It was suggested that a dock identification was in breach of the right against self-incrimination because the defendant’s presence was obligatory, and by being present he was picked out for a witness. This was rejected by the Board. As to whether the trial was fair given the admission of such evidence: ‘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’s trial unfair in terms of article 6. ‘ The court recognised that in Scotland the prosecution have always been reluctant to disclose the criminal records of prosecution witnesses. In this case thee defence sought details of impending cases which would be much more difficult to provide. The Board’s task was to see whether as a whole the defendant had a fair trial.
Judges:
Lord Bingham of Cornhill, Lord Hope of Craighead, Lord Rodger of Earlsferry, Baroness Hale of Richmond, Lord Carswell
Citations:
[2005] UKPC D1, (2005) SCCR 417, 2005 GWD 17-305, [2005] HRLR 25, 18 BHRC 500, 2005 SLT 563
Links:
Statutes:
European Convention on Human Rights 6, Criminal Procedure (Scotland) Act 1995 92(1)
Jurisdiction:
Scotland
Citing:
Appeal from – Holland v Her Majesty’s Advocate HCJ 21-Aug-2003
The defendant appealed his conviction after a dock identification.
Held: Scotland is unique among the jurisdictions in the United Kingdom in the significance that it attaches to dock identification. However, Scottish law was not alone in this. . .
Cited – Schenk v Switzerland ECHR 12-Jul-1988
The applicant had faced charges of hiring someone to kill his wife. He complained about the use of a recording of his telephone conversation with the man he hired recorded unlawfully by that man.
Held: The ECHR does not address issues about . .
Appeal from – Holland v Her Majesty’s Advocate IHCS 16-Jun-2004
. .
Cited – Bruce v H M Advocate HCJ 1936
Several 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.
Cited – Moorov v HM Advocate 1930
Corroboration evidence. . .
Cited – Stewart v H M Advocate HCJ 1980
The court re-affirmed 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. . .
Cited – Farmer v HM Advocate 1991
The judge warned the jury of the dangers in assessing evidence: ‘The task of assessment is not an easy one: it is certainly one which has to be approached with great care and circumspection.’ . .
Cited – Beattie v Scott 1990
The court emphasised 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’. . .
Cited – Edwards v The United Kingdom ECHR 16-Dec-1992
The fact that the elderly victim of the robbery of which the defendant had been convicted had failed to pick out Mr Edwards when she was shown two volumes of photographs of possible burglars which included his photograph was not disclosed to the . .
Cited – Teixeira De Castro v Portugal ECHR 9-Jun-1998
Mr De Castro had been the target of an unwarranted, unauthorised, unsupervised police operation in which undercover officers incited him to supply drugs. He challenged a conviction for trafficking in heroin, based mainly on statements of two police . .
Cited – Tani v Finland ECHR 12-Oct-1994
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 . .
Cited – Barnes v Chief Constable of Durham Admn 24-Apr-1997
The defendant was prosecuted for a driving offence. No identification parade had been held, and he was identified in the dock at court.
Held: Despite the firmly-rooted hostility to dock identifications in the Crown Court, they are permitted in . .
Cited – Alistair Mcleod v Her Majesty’s Advocate (No 2) HCJ 19-Dec-1997
A full court applied the guidance in Edwards -v- United Kingdom when considering the duty of the Crown to make disclosure under Scots law: ‘Our system of criminal procedure therefore proceeds on the basis that the Crown have a duty at any time to . .
Cited – HM Advocate v Ashrif 1988
The accused had sought to recover the previous convictions of the complainant not from the prosecution, but from the Scottish Criminal Record Office.
Held: The appeal court came down firmly against permitting defence agents to recover the . .
Cited – Maan Petitioner 2001
The accused sought to defend a charge on indictment of assault on 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 the previous convictions of . .
Cited – Jasper v The United Kingdom ECHR 16-Feb-2000
Grand Chamber – The defendants had been convicted after the prosecution had withheld evidence from them and from the judge under public interest immunity certificates. They complained that they had not had fair trials.
Held: The right was . .
Cited – Leggate v HM Advocate 1988
The judge has a wide discretion to refuse any application by the advocate depute to cross-examine the appellant on his previous convictions. . .
Cited by:
Cited – Afzal, Regina (on the Application of) v Election Court and others CA 26-May-2005
The appellant sought judicial review of the decision of the election court as to his conduct at an election to certify him guilty of corrupt and illegal practices.
Held: The allegations against the appellants were so serious that though the . .
Cited – McInnes v Her Majesty’s Advocate SC 10-Feb-2010
The defendant complained that the prosecution had not disclosed the fact that a prosecution witness had convictions, and that had it been disclosed it would have undermined the prosecution. Other statements taken were not disclosed as had later . .
Cited – Allison v Her Majesty’s Advocate SC 10-Feb-2010
(Scotland) The defendant appealed against his conviction saying that the prosecution had introduced at trial a statement of a witness who had died before the trial, but they had failed to disclose that he had several convictions and outstanding . .
Applied – Robson v HM Advocate HCJ 6-Oct-2014
Application for leave to appeal to Supreme Court – refused – Holland had been followed . .
Cited – Macklin v Her Majesty’s Advocate (Scotland) SC 16-Dec-2015
Appeal against conviction (in 2003) after release of undisclosed material helpful to the defendant, including an eye witness decsription incompatible with the defendant.
Held: The court considered the developing issues as to compatibility . .
Lists of cited by and citing cases may be incomplete.
Criminal Practice, Human Rights
Updated: 30 June 2022; Ref: scu.224874
