APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice General Lord Osborne Lord Johnston	[2006] HCJAC 90 Appeal No: XC334/06 and XC335/06 OPINION OF THE COURT delivered by THE LORD JUSTICE GENERAL in NOTES OF APPEAL y (1) JULIE CAROLINE BRITZ (section 71(2) Appeal) and (2) JULIE CAROLINE BRITZ (devolution minute appeal) Minuter; against HER MAJESTY'S ADVOCATE Respondent: _______

Act: A. Ogg, solicitor advocate; McCusker McElroy & Co., Paisley

Alt: A. Mackay, A.D.; Crown Agent

7 December 2006

[1] The appellant has been indicted, along with two co-accused, in the Sheriff Court at Dunoon on a charge of assault to severe injury, permanent disfigurement and permanent impairment. At a first diet she gave notice by minute of a preliminary issue in respect of an objection to the admissibility of certain evidence. By her minute she contended that a line of evidence pertaining to her identification by the complainer at a specified identification parade should not be admitted in evidence. She maintained that that identification parade, in so far as it related to her, had been conducted unfairly by the police officers responsible for it. In particular, the stand-in participants were not of similar age, height, dress or appearance to the minuter. At the hearing the solicitor appearing for the minuter referred to a production entitled "The Scottish Home and Health Guidelines on the Conduct of Identification Parades". It was submitted that the manner in which the identification parade had been conducted did not meet the guidelines and was unfair. A co-accused, who was heavily pregnant at the time, had also been on that parade; the only step taken in respect of the difference between her and others had been the use of a curtain.

[2] Along with the notice under section 71(2) the appellant had lodged a devolution minute. By it she maintained that it was ultra vires of the prosecutor to lead evidence of dock identification of the minuter as perpetrator of the alleged crime. In that minute she narrated the circumstances of the identification parade and maintained that any dock identification would inevitably have been tainted by the earlier proceedings at the identification parade. Dock identification in such circumstances would, she maintained, have been contrary to her right to a fair trial in terms of Article 6 of the European Convention of Human Rights.

[3] Some confusion appears to have occurred before the sheriff as a result of the solicitor for the appellant addressing her first on the devolution minute. The sheriff became aware of the section 71(2) minute only after the conclusion of the solicitor's submissions. Although there appears to have been some reference to Thompson v Crowe 1999 S.C.C.R. 1003, the sheriff was not addressed specifically on why she should have a "pre-trial" on the admissibility of evidence of the identification parade. In response to the solicitor's submissions the procurator fiscal depute had submitted that the section 71(2) minute should be repelled. What had occurred at the identification parade was a question of fact. That was a matter for the jury and not for the judge. It should not be subject to a preliminary plea. Reference was made to Holland v H.M. Advocate 2005 S.C.C.R. 417.

[4] The sheriff repelled the section 71(2) notice. In her report to us she observes that Thompson v Crowe concerned a statement and its admissibility "and therefore I differentiated it from the present case". She also noted that Thompson v Crowe arose from a summary trial, not from proceedings on indictment. For the same reasons she repelled the devolution minute.

[5] The appellant has, with leave of the sheriff, appealed against her determination on each minute. Miss Ogg on her behalf submitted that the sheriff had erred in repelling the section 71(2) minute. The issue of admissibility in indictment proceedings (which was a question of law) should have been determined by the sheriff, either before the trial or in a trial within the trial (Thompson v Crowe). She should at least have "considered" the preliminary issue at the first diet (section 71(2); Wright v H.M. Advocate 2006 S.C.C.R. 455) and not repelled it. Reference was also made to Howarth v H.M. Advocate 1992 S.C.C.R. 364. Miss Ogg, on the other hand, accepted that the devolution minute raised an issue of the fairness of the trial as a whole - an issue which could not ordinarily be determined until the trial was over (Holland v H.M. Advocate, per Lord Rodger of Earlsferry at para. 41). It was, however, premature to repel the devolution minute.

[6] The advocate depute accepted that any question of the admissibility of evidence, including the resolution of any factual issue upon which the question of admissibility depended, was a matter for the judge or sheriff, not for the jury. The sheriff had not identified whether there was any factual dispute about the circumstances of the identification parade which required to be resolved before the legal issue of admissibility could be determined. If there was no dispute about these factual circumstances, the sheriff would be able to determine the issue of fairness, and accordingly of admissibility, on the basis of submissions. He did not seek to support the position adopted by the procurator fiscal depute. Although he was unable to point to any reported decision in which the issue of fairness of an identification parade had been held to be a question of law, he accepted that Thompson v Crowe covered all issues of fairness touching upon admissibility. The appropriate course in relation to the section 71(2) minute was to allow the appeal and to remit it back to the sheriff to hear the evidence (or, if the relevant facts were agreed, to hear submissions) on the issue of admissibility. The devolution minute appeal should be allowed and that minute remitted to the sheriff with a direction that it be continued to the end of the trial.

[7] For several decades prior to 1999 there was current in Scottish criminal jurisprudence the view that issues of fairness in indictment proceedings were essentially matters for a jury to determine (see Thompson v H.M. Advocate 1968 J.C. 61; Balloch v H.M. Advocate 1977 J.C. 23). The practice of holding, where an issue of admissibility arose, a trial within a trial, which had been advocated by Lord Justice-General Cooper and his colleagues in Chalmers v H.M. Advocate 1954 J.C. 66, was disapproved, one judge (Lord Avonside) going so far as to describe it as a "lamentable process" (Hartley v H.M. Advocate 1979 S.L.T. 26 at page 28).

[8] In Thompson v Crowe a court of five judges, having reviewed the law and practice in relation to objections to the admissibility of evidence, reinstated the earlier practice. At page 1033D-F Lord Justice General Rodger said:

"In my view the correct course is for the court to overrule Balloch and to revert to the previous law as it applied in Scotland up to the time of Chalmers. In doing so, Scots law will once more accord to the judiciary in full measure the power to exclude statements obtained by improper methods, a power which has been regarded as a necessary hallmark of any civilised system of criminal jurisprudence (Wong Kam-ming v The Queen at p. 261 per Lord Hailsham of St. Marylebone). Once again, accordingly, it will be for the trial judge to decide questions of the admissibility of the evidence of statements by the accused, just as it is for the trial judge to decide all other questions of admissibility. The decision will depend, of course, on the facts of the particular case and, where there are conflicts in the evidence about the circumstances, it will be for the trial judge to resolve those conflicts and so to settle the factual basis upon which to take the decision. The judge will exclude the statement if it was taken in circumstances which would render it inadmissible under any rule laid down by the law. In other cases the judge will admit the statement if the Crown satisfies the court that it would be fair to do so, by proving that the statement was made freely and voluntarily and was not extracted by unfair or improper means".

[9] Thompson v Crowe was concerned with the admissibility of a statement, but, as the final clause in the sentence at page 1033E shows, the principle applies to all questions of admissibility. Thus, if an issue is raised as to the admissibility of evidence of an identification made at an identification parade, whether on the basis of the unfairness of the procedure adopted or otherwise, it is for the judge or sheriff to rule upon that issue, incidentally resolving, in so far as it may be necessary to do so for that purpose, any factual issues which may arise. If the judge or sheriff holds the evidence, or the line of evidence, to be inadmissible the jury will hear nothing of it. If, on the other hand, the judge or sheriff rules that it is admissible, the evidence can be laid before the jury, which will, however, be entitled to take its own view of the circumstances in which the challenged evidence arose and consequentially of the weight, if any, to be given to that evidence (Chalmers v H.M. Advocate, per Lord Justice-Clerk Thomson at pages 82-3). It should also be noted that the test for withholding evidence from a jury referred to in Howarth v H.M. Advocate, adopting the test laid down in Lord Advocate's Reference No. 1 of 1983) 1984 J.C. 52; 1984 S.C.C.R. 62, is no longer applicable, both these cases having been decided during the currency of the view referred to in paragraph [7] above.

[10] These principles apply equally to solemn and summary proceedings (Thompson v Crowe, per Lord Justice-General Rodger at pages 1043G-1044A).

[11] In solemn proceedings in the Sheriff Court the court is required to "consider" any preliminary issue at the first diet (section 71(2)). Preliminary issues include a duly intimated objection by a party to the admissibility of evidence (section 79(2)(b)(iv)). As was observed in Wright v H.M. Advocate at para. [16], the legislation was framed with a view to facilitating the resolution of preliminary issues before trial. There may, however, be cases, such as Wright, in which that is not possible or practicable and where the resolution requires to be made in the context of the trial itself. The sheriff was, however, in error in repelling the section 71(2) minute.

[12] We shall accordingly allow the appeal in respect of the section 71(2) minute and remit to the sheriff to proceed as accords in light of this Opinion. We shall also allow the appeal in respect of the devolution minute and remit to the sheriff with a direction to continue consideration of that minute until the trial diet.