Act: Shead; Belmonte & Co

Alt: A Miller AD; Crown Agent

9 March 2012

1. General

[1] On 1 February 2011, at the High Court in Livingston, the appellant was found guilty of repeatedly stabbing Dennis Quinn at his place of employment at Fairytales, Easter Road, Edinburgh, on 30 August 2010. He was acquitted of demanding money from Mr Quinn and thus of being engaged in an attempted robbery. He was sentenced to 4 years imprisonment.

2. The trial

[2] The evidence at the trial was that Mr Quinn had been working in a shop called Fairytales as cover for Craig Liddle, the appellant's brother, who had recently been dismissed. The shop is near the junction of Easter Road and Albion Road. At about 11.00 am, a person called in at the shop and told Mr Quinn that he had a mobile telephone that he wanted to leave for his brother Craig. Mr Quinn said that he would pass the mobile onto his brother. The person left the shop.

[3] Shortly afterwards, James Phillips, a service manager with a cleaning company, entered the shop in anticipation of Mr Quinn having keys for neighbouring premises. Mr Quinn did not have the keys. Mr Phillips remained in the shop expecting their imminent arrival. Thereafter, the first person re-appeared. He was dressed in a black tracksuit with a white hooded top pulled up. He produced a knife. Mr Phillips left and called the police. An altercation started between the person and Mr Quinn, during which the person stabbed Mr Quinn on his arms and back. Mr Quinn managed to push the person out of the shop using a piece of worktop. The person fell down in the doorway but got up and was seen by Mr Quinn and passers-by running off down Easter Road and turning into Albion Road, a street which leads to Albion Place.

[4] A young woman, who lived in a flat in Albion Place, saw a person, who was wearing only jogging bottoms and trainers, scale her garden wall at the rear of Albion Place and drop down into the Eastern Cemetery on the other side. Soon after that, such a person was seen by the police, crouching as if he had just jumped back over the cemetery wall, in St Clair Street near its junction with Albion Place. That person, who was identified by the police as the appellant, was detained.

[5] A black tracksuit top was recovered by the police in a vennel leading to a garage just off Albion Road. A white hooded top was found in a bin in the young woman's garden in Albion Place. It had Mr Quinn's blood on it.

[6] Mr Quinn told the police that the perpetrator of the attack had been "Stephen Liddle". At the trial, there was evidence from the police that Mr Quinn had been able to identify the appellant from an "emulator board" containing a number of photographs, including one of the appellant. He identified the photograph of the appellant as depicting the person he had referred to as "Stephen Liddle". However, for whatever reason, Mr Quinn was not asked to identify the appellant in court or indeed at a prior VIPER identification parade (infra).

[7] At the trial diet there was a joint minute, which was read to the jury, in the following terms:

"(vii) Crown Production 9, 'Identification Parade Report', is a true and accurate record of the Video Identification Parade (VIPER) carried out on 6^th September 1010 (sic) and 12^th October 2010 within St Leonards Police Station, conducted by police sergeant Brian Walker and force support officer Louise Pearson".

The production records that one Jason Liddle, born on 11 October 1983, was a suspect on the parade. That name and the date of birth coincide with the appellant's details on the indictment. At this parade, Mr Phillips picked out the person with the appellant's details and two others as resembling the person in the shop. A passer-by identified the same person and one other as resembling the person he had seen close to the shop. However, counsel for the appellant addressed the jury on the basis that no-one had identified the appellant as having been on the identification parade. The force support officer had given evidence, but had not been asked to identify the appellant as the person with the appellant's details.

[8] There was evidence about the appellant's interview by the police following upon his detention. In accordance with the practice at the time, the appellant had been advised that he was entitled to have a private consultation with a solicitor. He had availed himself of that right by telephone on two occasions in advance of the interview. At the interview, there was no solicitor present and, according to the trial judge in his charge (p 20), the appellant had expressly declined to have a solicitor present. The appellant initially denied ever having been near the shop. He later accepted that he had been in the shop, but denied having a knife. He admitted that he had engaged in a struggle with Mr Quinn but denied stabbing him. He gave an explanation, which must have provided the jury with a reasonable doubt on the robbery aspect of the charge, that he had gone to the shop to collect a debt from the complainer.

[9] A transcription of the interview was a production. In advance of the playing of the audio recording of the interview, an edited version of the transcription, presumably agreed with the appellant's counsel, was made available and copies were distributed to the jury. No objection was taken to this course of action. However, at some point during the playing of the audio tape, the appellant's counsel appears to have become concerned that the edited transcription contained questions which included information which transpired, on the evidence adduced at the trial, to be inaccurate. This information was that the appellant had been "named" as the perpetrator and that the passers-by had already identified the appellant. Counsel raised his concerns with the trial judge, who stated that the matter could be clarified in cross-examination, which it was. The police officer accepted that the appellant, as Jason (as distinct from Stephen) Liddle, had not been named and that the passers-by had not identified him.

3. Grounds of Appeal and Submissions

[10] The appellant lodged a Note of Appeal on 12 April 2011 and leave was given to argue the first and second grounds. The first ground relates to the identification parade. The Crown had not adopted the procedure relative to proof of routine evidence contained in section 281A of the Criminal Procedure (Scotland) Act 1995, whereby it is presumed that, where a report names a person, that person is the accused person of the same name. Therefore, it was said, there had been no proof that the appellant had been on the identification parade. The contention was that the trial judge ought to have directed the jury to disregard the resemblance identifications because of the defect in the identification links. The Crown accepted the existence of this defect but maintained that, given the weakness of the identifications as compared to the other evidence, no miscarriage of justice had occurred.

[11] The terms of the second ground of appeal are somewhat rambling and, as it transpired, in large part inaccurate in so far as they suggest, as appeared to be their principal thrust, that there was insufficient evidence that Mr Quinn had identified the appellant from the emulator board. This part of the ground was not insisted upon. However, what was said, at least partly under reference to the final paragraph of this ground presenting an alternative position ("separatim") and partly in connection with the terms of a new ground 5 introduced by amendment, was that there had been a breach of the appellant's Article 6 and common law rights to a fair trial. This was said to be because of the admission of evidence of what the appellant had said during the interview following the erroneous propositions which the police had put to the appellant. It was accepted that there had been no objection to the evidence, but it was maintained that, despite the terms of section 118(8) of the 1995 Act and the dictum of Lady Paton, delivering the Opinion of the Court in Macfadden v HM Advocate 2009 SCCR 902 (at paras [19] - [20]), the appellant could nevertheless complain of an unfair trial at the stage of appeal. The proposition was that, having asked questions based on erroneous fact, the police ought somehow to have realised their error at the time, halted the interview and once more afforded the appellant an opportunity to consult a solicitor. It was asserted that the line of questioning would not have been followed, had a solicitor been present. At one point in the submission, the proposition, which was not contained in the ground of appeal, appeared to be that, as part of his right to a fair trial under Article 6, the appellant ought to have had a solicitor present throughout his interview as this was the only practical method of securing the effective enforcement of this right.

[12] If the interview after the impugned passage had been excluded, there was a real possibility that the jury might have reached a different verdict (McInnes v HM Advocate 2010 SC (UKSC) 28 (Lord Hope at para [24]). The test was the same as that applied in Stirland v DPP [1944] AC 315 (Viscount Simon at 321). Counsel denied having made a similar submission, attributed to him but rejected by the Lord Justice General (Hamilton) delivering the Opinion of the Court, in McGrory v HM Advocate [2011] HCJAC 126 (at para [13]).

[13] In reply, the Crown founded upon the dictum in Macfadden (supra), pointing out that the court had already rejected the same argument about the lack of a fair trial based upon the admission of evidence to which no objection had been taken (para [15]). Unless there were exceptional circumstances, section 118(8) was determinative of the point.

[14] Finally, in relation to a new ground 6, it was submitted that the trial judge ought to have directed the jury to disregard the impugned part of the interview. The Crown response was that, at the time of the trial, there was no basis upon which the trial judge could have been expected to direct the jury to disregard the evidence of the interview once it had been placed before the jury (Crozier v HM Advocate [2011] HCJAC 95, Lord Eassie at para [16]).

4. Decision

[15] The court does not consider that there is merit in the first ground of appeal.

It is, however, important at the outset to make certain observations on the form and use of Minutes of Admission. Section 256 of the 1995 Act provides that it is not necessary for an accused or a prosecutor to prove any fact, which is admitted by the other party, or any document, the terms of which are not in dispute. The parties can enter into a Minute of Admission and "any facts and documents admitted or agreed shall be deemed to have been duly proved". The reference to documents deals with the situation where proof of a document, or its terms, is relevant to establishment of the crime charged. That is a relatively rare occurrence and will seldom arise in connection with identification parade reports. The section is otherwise primarily designed to deal with agreed evidence about facts, thereby dispensing with the need for witnesses, whose testimony is not controversial, to appear in court to speak, not to documents, but to these facts.

[16] Agreeing that a report is a "true and accurate record" of an identification parade is generally a pointless exercise and undoubtedly so if, as here, the Crown then proceed nevertheless to lead evidence from a person who was present at the parade. Indeed, it is positively confusing if, as not infrequently occurs, the witness says something different from, or additional to, the terms of the report. An agreement about the veracity of a document recording an event is of no value if the relevant part of the document is not then read to the jury so that its import can be understood. If there is to be an agreement about what occurred at a parade, and in particular that an identification did, or did not, take place, the proper way of doing that is to agree the fact, not simply the veracity or reliability of the document. Thus, in a case such as this, the joint minute ought to have stipulated, for example, that, at the parade, a particular witness identified the accused as resembling the perpetrator of the crime etc. In short, if it is intended to agree a fact then that fact should be stated in clear terms and the terms stating that fact should be read to the jury.

[17] That having been said, there was, in this case, evidence of what occurred at the parade. There was also the agreement that the report of the parade was accurate. The clear implication was that the jury was being invited by both parties to treat the evidence of the parade as relating to the appellant. The trial judge would have been aware that the agreed report related to a person by the name of Jason Liddle, giving a date of birth of 11 October 1983, and that the appellant had answered to the indictment in that name and with that date of birth. In these circumstances, the court does not consider that it would have been appropriate for the trial judge to direct the jury other than in accordance with that clear implication. Indeed, having regard to the agreement in the Minute, entered into without qualification by counsel for the appellant, the court agrees with the trial judge that suggesting that a different state of affairs existed to the jury strayed "perilously close to the edge of professional propriety". It is worthy of comment, however, that this could all have been avoided by the lodging of a properly drafted Minute or by the trial Advocate Depute employing the simple expedient of asking the officer to identify the appellant in court.

[18] Finally, on this ground, the court does not consider that, in any event, the strength of the evidence relative to the resemblance identifications was such that it could be said that a miscarriage of justice might have occurred because the trial judge had not directed the jury to ignore them. These identifications were extremely weak and, once the other evidence, including the circumstantial evidence, was taken into account, they paled into insignificance.

[19] In relation to the second and fifth grounds of appeal, as Lady Paton stressed, when delivering the Opinion of the Court in McFadden v HM Advocate 2009 SCCR 902:

"[20] It is... of the utmost importance for the efficient administration of justice, that objections to the admission of evidence are taken timeously, for example at a preliminary hearing, or during the course of the trial. Only in very exceptional circumstances will the appeal court sustain arguments relating to admissibility or to the leading of evidence said to render the trial unfair where no objection was taken at or before the trial".

This principle is enshrined in section 118(8) of the 1995 Act, but it is simply a re-statement of the common law rule that objections to the admissibility of evidence must be taken at the time, otherwise in criminal cases the evidence becomes in causa (Skeen v Murphy 1978 SLT (notes) 2, LJ-C (Wheatley)). Of course, if, at the relevant time, no objection could successfully have been taken, different considerations apply (Jude v HM Advocate [2011] SCCR 300, LJ-C (Gill) at paras [29] - [30]), but that is not the position here. It would have been open to the appellant to object to the evidence of that part of the interview at which the police asked questions based on incorrect premises and to seek to exclude any poisoned fruits picked thereafter. The appellant did not do so. Rather, having brought the matter to the trial judge's attention in a vague manner and at a late stage, the appellant was content to proceed on the basis that he could clarify matters by means of cross-examination, which he did. On that basis alone, this ground of appeal must be rejected.

[20] Even if the court had considered that part of the interview ought to have been excluded, it would have had no hesitation in concluding that there was no real possibility that the jury might have reached a different verdict in the absence of that part. What were said to be incorrect premises were only so incorrect as a matter of degree and there was no intention thereby to mislead the appellant. The content of the interview provided the only positive defence that the appellant had, and one which was, in the event, partially successful. But for the interview, it is difficult to see how the appellant could have avoided a finding of guilt as libelled.

[21] The evidence in the case generally was overwhelming. The appellant was identified by the complainer, who had spoken to the assailant referring to his brother, Craig Liddle, by name. He had been seen running off down Albion Road towards Albion Place wearing clothing, later found in the vicinity, stained with the complainer's blood. The assailant had been seen disappearing and re-appearing over the Eastern Cemetery wall. He was detained in that vicinity and positively identified by the police in a state of undress, because, it could readily have been inferred, of his recent discard of the recovered upper clothing. There was, and is, simply no real possibility of a verdict of acquittal.

[22] In relation to the submission that the appellant had a right, in terms of Article 6, to have his solicitor present throughout the interview, there are three answers. First, it does not form part of the appellant's grounds of appeal and no cause was shown for allowing such a point to be raised at the hearing of the appeal (1995 Act s 110(4)). Secondly, according to the trial judge, this particular appellant had actually declined to have a solicitor present during his interview. The ACPOS Solicitor Access Recording Form (SARF) produced to the court is in similar indicative terms. There was certainly no material to suggest that the appellant did not have the opportunity to have his solicitor present at interview, had he requested this. Thirdly, there was no precedent cited to the court to support the proposition that it is part of a detained suspect's Article 6 right to a fair trial that he must have a solicitor present throughout an interview.

[23] Finally, the sixth ground relative to the alleged misdirection is conclusively answered by the Opinion of the Court, delivered by Lord Eassie, in Crozier v HM Advocate [2011] HCJAC 95 in which it was said (at para [16]) that:

"...in so far as it was submitted that the trial judge misdirected the jury by not informing them that they should not have regard to the terms of the police interview, we consider this argument to be misconceived. Insofar as the leading of what was said in the interview might now be open to objection in light of the decision... in Cadder v HM Advocate, that is a matter which goes to the admissibility of the evidence. For no doubt understandable reasons, no objection was taken at the trial. There was accordingly no basis upon which it would have been incumbent, or indeed proper, for the trial judge to have directed the jury to ignore the terms of the police interview".

This court agrees with that dictum, which is in any event binding upon it. Especially in a case such as this, in which the appellant has relied upon the later impugned terms of an interview in addressing the jury, there could be no basis for the trial judge directing the jury to ignore these terms, to which, in any event, no exception had been taken. Such a direction would itself have been likely to be open to substantial criticism. It would have deprived the appellant of his only positive defence. The appeal on this ground also falls to be rejected.