Recent Appeal Court Decisions
The following text accompanied a talk delivered by Chris Shead to the Glasgow Bar Association in June 2012. A PDF version is available to download.
Since the time of the decision of the Judicial Committee of the Privy Council in Holland v HMA 2005 SCCR 417 it has been the expectation of practitioners, at least in solemn cases, that where the question of identification of the accused is going to be an issue, a VIPER parade will be held by the police.
Lord Hope of Craighead made the following observations:
 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's article 6(1) 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 (Cmnd 6218). 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.
Some indication of the Crown’s position is to be found at  of the judgement of Lord Rodger of Earlsferry:
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's 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's 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's position in the dock positively increases the risk of a wrong identification.
On the other hand it is perhaps worth recalling that, generally at least, the use of dock identification will not raise a question of admissibility. Having quoted from the opinion of the Lord Justice Clerk Lord Rodger observed at :
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 and to 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.
The Lord Advocate’s Guidelines are available on the Crown Office website. For present purposes it is worth quoting the following extract:
Decision to hold identification procedures
Subject to the requirements of the Procurator Fiscal, the decision to hold identification procedures should normally rest with the officer-in-charge of the case or their supervisory officer. In all cases where identification may be an issue or where it is envisaged that it may be necessary to lead evidence of prior identification e.g. due to the anticipated use of a live television link in a subsequent court case by a child or vulnerable witness, the police should normally arrange an identification procedure.
If a suspect or accused person or his/her legal representative requests that an identification procedure is held and the police are in any doubt, the request should be referred to the Procurator Fiscal for instruction. Notwithstanding this, Section 290 of the Criminal Procedure (Scotland) Act 1995 provides that a Sheriff may, on application by an accused at any time after the accused has been charged with an offence, order that, in relation to the alleged offence, the Procurator Fiscal shall hold an identification parade in which the accused will be included.
Despite the position adopted by the Crown in Holland there have been a number of examples in recent years where no parade has been held even where it was plain that identification was an issue. This may gave rise to a difficult decision as to whether to make an application under s.290 of the 1995 Act. It is a precondition of making such an application to the Sheriff that the accused has requested that the Fiscal hold a parade.
It is difficult decision not least because the absence of a parade and the use of dock identification at the trial will place an onus on the presiding judge to direct the jury in appropriate terms. However here again experience suggests that it is not always safe to assume that directions of the kind contemplated by Lord Rodger in Holland will be given.
That brings me to the recent case of Tido v the Queen  UKPC 16 another decision of the Judicial Committee of the Privy Council in which Lord Kerr gave judgement on behalf of the Board. In reviewing the relevant decisions Holland was cited with approval:
 In Holland v HM Advocate it was not suggested that dock identifications were only to be permitted in the most exceptional of circumstances. On the contrary Lord Rodger (at para 57) stated that there was no reason that dock identifications should be regarded "except perhaps in an extreme case" as inadmissible per se either under domestic law or the European Convention on Human Rights and Fundamental Freedoms. Lord Rodger again returned to the theme of the importance of the directions that the trial judge gives to the jury about the possible dangers of dock identifications. He was at pains to point out that these dangers were not sufficiently conveyed to the jury by the rehearsal of standard directions as to the risks associated with eye-witness evidence generally.
His Lordship continued:
 The Board therefore considers that it is important to make clear that a dock identification is not inadmissible evidence per se and that the admission of such evidence is not to be regarded as permissible in only the most exceptional circumstances. A trial judge will always need to consider, however, whether the admission of such testimony, particularly where it is the first occasion on which the accused is purportedly identified, should be permitted on the basis that its admission might imperil the fair trial of the accused. Where it is decided that the evidence may be admitted, it will always be necessary to give the jury careful directions as to the dangers of relying on that evidence and in particular to warn them of the disadvantages to the accused of having been denied the opportunity of participating in an identification parade, if indeed he has been deprived of that opportunity. In such circumstances the judge should draw directly to the attention of the jury that the possibility of an inconclusive result to an identification parade, if it had materialised, could have been deployed on the accused's behalf to cast doubt on the accuracy of any subsequent identification. The jury should also be reminded of the obvious danger that a defendant occupying the dock might automatically be assumed by even a well-intentioned eye-witness to be the person who had committed the crime with which he or she was charged.
 The Board does not consider that this was a case where the judge was bound to have concluded that the admission of the dock identification of the appellant by Ms Edgecombe would result in an unfair trial to the accused. But the discretion to admit the evidence must be exercised in light of the particular circumstances of the individual case. Relevant circumstances will always include consideration of why an identification parade was not held. If there was no good reason not to hold the parade this will militate against the admission of the evidence. Conversely, if the defendant resolutely resists participation in an identification parade, this may be a good reason for admitting the evidence. In England and Wales and in Northern Ireland, various means have been devised whereby identification of accused persons by witnesses before trial can take place even where they are unwilling to participate in a formal parade. On that account, dock identifications in those jurisdictions are rare. In Scotland, identification evidence invariably requires corroboration and this may explain why dock identifications more frequently occur in that jurisdiction. In this case, however, counsel for the appellant had pointed out that the prosecution had not offered any explanation for the failure to hold such a parade but the judge in giving her ruling that the evidence was admissible made no reference to this. There was therefore no consideration of why an identification parade had not been held. On the hearing of the appeal to the Board, Mr Knox QC for the respondent accepted that no good reason for failing to hold an identification parade had been given.
The directions mentioned in  are not, so far as I am aware, standard directions in Scotland. However the case of Tido has been cited in at least one case presently under consideration by the appeal court and thus it remains to be seen whether the approach of the Board will be endorsed by the appeal court or not.
That decision is likely to have bearing on the question of whether to make an application under s.290 or not. I am aware of a recent case in the Sheriff Court in which the Crown having failed to organise a parade (with no obvious justification) the defence made an application under s.290 which was refused by the Sheriff essentially on the basis that it came too late. That decision was appealed but the appeal court refused to pass the bill. As a result agents have raised a devolution issue seeking a declarator that it would be contrary to the accused’s right to a fair trial to admit the evidence of dock identification.
As will be apparent from the decision in Tido there are some situations at least in which the use of dock identification will be raise a question of admissibility.
Du Plooy revisited in Gemmell v HMA
The question of whether Du Plooy and later cases required modification was raised in the cases of Gemmell & others. The various opinions may suggest a difference of emphasis. However it seems to me that the following points can be taken from the decision:
The “utilitarian” principle (or the practical benefit to the system) underpinning the decision in Du Plooy has been affirmed
The need for some measure of consistency has been recognised while emphasising that there is no entitlement to a reduction in sentence
The strength of the Crown case should not be a factor in assessing the measure of reduction
No reduction should be made to the extension period of an extended sentence although in general a sentence should not be subdivided for calculating any reduction
It is permissible to make a reduction in periods of disqualification and the number of penalty points although not below the statutory minimum.
On the second point it is perhaps worth drawing attention to what Lord Eassie said:
 The first matter to which I would advert is the weight to be placed on the element of discretion involved in the allowance of a reduction of sentence on account of the timing of the plea of guilty. While I of course agree that the allowance of that reduction is, in its essential nature, an exercise of discretion, one is well familiar with areas of discretionary judgment in which the discretion is generally guided by established rules or principles. The utility of such rules or principles guiding or directing the exercise of the discretion enables the court not only to achieve consistency in its decisions - in essence, comparative justice - but also enables practitioners to offer advice with some reasonable degree of confidence. While one may take issue with the use of language to the effect that there is an "entitlement" to a discount, it respectfully seems to me that if the utilitarian and cost-saving benefits underlying the principle of discounting sanctioned by the legislature are usefully to be realised, practitioners should, in general, be able to advise the client of the amount of the likely discount with some degree of confidence. That necessarily involves the elaboration of principles, or guidance, for the exercise of the discretion upon which practitioners can have some reliance and hence the creation of a legitimate expectation, peculiar circumstances apart, that the guidance will be followed.
 The ability of practitioners to tender reasonably confident advice is made more difficult if the sentencer is required to enter into some detailed examination in the individual case of the particular administrative and other utilitarian benefits of the accused's having pled guilty at the particular stage at which he or she did. It also complicates the sentencing exercise. Your Lordship in the Chair has set out various costings in paragraphs  and  of the Opinion and in paragraph  your Lordship observes that saving in jury costs applies in relatively few cases. However, in view of the proposals for the actual disposal of the appeals, which do not involve such a detailed consideration, I take it that such an examination is not intended as part of the sentencing process. In my view, practical considerations dictate that the utilitarian benefit be taken on a "broad brush" basis, without distinction between solemn and summary procedure; the principle criterion should be the timing of the plea.
These observations, as it seems to me, should be borne in mind by sentencers when deciding what reduction in sentence would otherwise be appropriate.
Post Cadder: waiver and the vulnerable suspect
As every practitioner will be aware one of the main challenges for the Crown and the police was how to take account of the decision in Cadder in respect of the provision of access to a solicitor. Since then there has of course been legislation but questions remain as to whether the suspect’s rights are being secured in a manner which is both practical and effective.
Thus even now in the context of the preparation of cases for trial it is worth bearing in mind that not every interview in the course of which an admission has been made will be admissible even where the suspect has declined the services of a solicitor. The question in each case is whether there has been a valid waiver.
That issue was the subject matter of the appeals to the Supreme Court in the cases of Jude & McGowan. The observations of the majority fall to be applied to each case to determine whether there has been a valid waiver.
However what of the position of the vulnerable suspect?
67. On the other hand, if there are reasonable grounds for believing that the
accused is vulnerable in some way and that he does not understand in general
terms that a lawyer might be able to assist him at the interview, then it is not
enough for the police merely to ask him whether he wishes to have the assistance
of a lawyer. Additional safeguards are necessary to ensure that such a person does
not waive his right to legal assistance at the interview without a proper
understanding of the significance of what he is doing. The most obvious way of
achieving this is by the provision of legal advice on the question of legal
assistance. Depending on the circumstances, however, there may be other ways of
ensuring that the accused understands the implications of refusing the assistance of
a lawyer at interview.
68. It will be a question of fact in each case whether the accused can reasonably
understand the implications of refusing the assistance of a lawyer at police
interview. The ultimate question is what fairness demands in the particular case.
Lord Hope has referred to a number of cases at para 35 where for one reason or
another there were grounds for doubting whether an accused had sufficient
understanding of the implications of refusing the assistance of a lawyer. Another
case where the court held that the accused had not waived his article 6 rights
because it had not been established that he would have understood the implications
of his doing so is Panovits v Cyprus (Application No 4268/04) (unreported) 11
December 2008. At para 71, the court said:
“Moreover given the lack of assistance by a lawyer or his guardian,
it was also unlikely that he could reasonably appreciate the
consequences of his proceeding to be questioned without the
assistance of a lawyer in criminal proceedings concerning the
investigation of a murder…”
69. The court had earlier emphasised “the vulnerability of an accused minor
and the imbalance of power to which he is subjected by the very nature of criminal
proceedings” (para 68). He was 17 years of age at the material time.
70. I agree with what Lord Hope says at para 47. The court must be astute to
the possibility that the implications of refusing the assistance of a lawyer may not
be understood even by an apparently intelligent person. It will depend on all the
circumstances, including the age, health and apparent intelligence of the person as
well as the extent to which he or she appears to be in a state of stress and the likely
length and complexity of the interview. But in a relatively simple case, where the
accused appears to be intelligent and not especially vulnerable and he
unequivocally and voluntarily refuses the offer of the assistance of a lawyer, the
prosecution will usually be able to show that there has been a valid waiver. It is not
necessary to show that the accused understood precisely what assistance could
have been given but rejected it nevertheless. It is sufficient to show that the
accused understood that the lawyer would or might be able to provide assistance at
the interview stage which would or might be of benefit to him. The precise nature
of the benefit does not matter. In most cases, this cannot be known in advance of
Against that background I will focus on one obvious category: the child suspect. I do so because in terms of the 1995 Act a child is still defined as someone under 16. However it seems apparent from the relevant decisions of the European Court that a “child” is someone under the age of 18. Yet it is my impression that steps are not always taken to recognize that fact when interviewing suspects.
The point has arisen in a recent appeal. There the suspect was 16 interviewed a month after the decision in Cadder was issued. The police appear to have treated the suspect as an adult. Thus he was not afforded the assistance of an appropriate adult. His decision to proceed without a solicitor was treated by the Sheriff as a valid waiver despite the lack of any additional safeguards. The appeal court affirmed the Sheriff’s decision on the facts of that case and refused permission to appeal to the Supreme Court. The point was raised and determined in advance of the trial. In that context, in refusing permission to appeal, the appeal court left open the possibility that the matter might be revisited at the trial.
The case appears to me to illustrate the need to scrutinize carefully any cases in which a suspect under 18 has made admissions without the benefit of legal advice particularly where no other measures have been taken to compensate for the youth of the suspect.
It also seems to me to suggest that if challenges are to be mounted to the use of such evidence thought will have to be given to whether the relevant expert should be instructed to assess the level of intellectual functioning and comprehension of the accused.
In the very practical field of waiver the outcome of any argument will always depend on the precise circumstances of the particular case.
Chris Shead, Advocate
21st June 2012