THOMAS HARRIS v. HER MAJESTY'S ADVOCATE
| APPEAL COURT, HIGH COURT OF JUSTICIARY |
| Lord Justice Clerk Lord Osborne Lord Abernethy | Appeal No: XC137/02 OPINION OF THE COURT delivered by LORD ABERNETHY in APPEAL AGAINST CONVICTION by THOMAS HARRIS Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Appellant: Jackson, QC.; Gilfedder & McInnes
Respondent: Turnbull, Q.C., AD; Crown Agent
21 August 2003
[1]On 31 January 2002 at Glasgow High Court the appellant was convicted of a charge in the following terms:
"On 28 January 2000 at Glasgow Broker Services Limited, 38 Herriot Street, Glasgow, you did assault Thomas Livingstone, proprietor there, present a knife or similar instrument at him, seize him bodily, push him, repeatedly demand money from him, threaten him with violence, slap him on the face, rifle his pockets and did rob him of a pair of spectacles, £440 of money, a wallet, six bank cards and a cheque book".
[2]At the trial, which took place almost exactly two years after the crime was committed, the principal issue was identification. In particular, identification of the appellant by the complainer was crucial to the Crown case against him. The identification relied upon was a dock identification.
[3]There had been no prior identification of the appellant by the complainer. It was not until 14 June 2001 that a petition warrant for the appellant's arrest was executed. Shortly before that, on 23 May 2001, an attempt had been made to hold an identification parade. It did not proceed, however, because an objection by the appellant's solicitor was accepted. Thereafter on 18 June, 4 July and 19 September 2001 further attempts were made to hold an identification parade but each failed due to a lack of suitable stand-ins. Given the appellant's description this was not altogether surprising. The result was, however, that through no fault of the appellant there was no pre-trial identification of him by the complainer.
[4]The only other identification evidence was a cheque presented at an Asda superstore more than a week after the crime, which had the appellant's fingerprint on it. The cheque came from the cheque book stolen at the time of the robbery.
[5]The essential part of the appellant's ground of appeal is in the following terms:
"It is submitted that there has been a miscarriage of justice in the absence of any prior identification evidence (e.g. by way of an identification parade) and that to rely upon identification of the Appellant to secure a conviction breached the Appellant's right to a fair trial given the position of the Appellant in court namely sitting in the dock between two uniformed police officers and the lapse in time between the date of the alleged offence and the date of the trial".
[6]Mr Jackson, Q.C. for the appellant accepted that, although rather differently worded, the principal point raised is essentially the same as is raised in the cases of Holland v HMA and Bryce v HMA. It was for this reason that the three appeals were heard together.
[7]In the present case, however, the question of the admissibility of dock identification evidence was not raised at the trial. No objection was taken to it at that stage. Mr Jackson therefore accepted that, standing the terms of section 118(8) of the Criminal Procedure (Scotland) Act 1995, he could not raise it now. If the argument in the first ground of appeal for the appellant in Holland v HMA (which he adopted) were correct, however, it would follow that reliance on the dock identification of the present appellant had resulted in a miscarriage of justice.
[8]In our opinion, for the reasons explained in Holland v HMA, there is no merit in this point.
[9]There remains the question whether the dock identification of the appellant by the complainer, taking place as it did so long after the crime, is necessarily unreliable having regard to the particular circumstances of this case and so resulted in a miscarriage of justice.
[10]It is true that the identification was made two years after the offence and that there had been no prior identification. As the Advocate Depute pointed out, however, it is clear from the trial Judge's report that the complainer was able to recollect the circumstances of the crime in considerable detail. He had the opportunity to observe the attacker over an appreciable period of time: he said that the incident lasted for some ten to fifteen minutes. The jury saw and heard him give his evidence. They were in a good position to assess it and to compare and contrast it with the contrary evidence led by the defence. Shortly after the crime was committed the complainer had given a description of the attacker to the police. Evidence was led by the defence that the appellant did not meet that description. The appellant also had a special defence of alibi. The jury had the benefit of the submissions made by the Advocate Depute and the Solicitor Advocate for the appellant in their closing speeches. They also had the trial Judge's directions that they should examine the complainer's identification evidence very carefully. No criticism had been made of those directions.
[11]In these circumstances we are quite unable to hold that the complainer's identification of the appellant is necessarily unreliable.
[12]For all these reasons the appeal against conviction is refused.