Lord Justice Clerk

Appellant: Shead; Gordon Ritchie & Co., Paisley

Respondent: Stewart, A.D.; Crown Agent

22 March 2006

[1] On 27 January 2004 at Glasgow Sheriff Court the appellant was found guilty by a majority of the following charge:

"On 26 October 2002 within the car park at the Taj Restaurant near to Paisley Road West, Glasgow you did, whilst acting with another to the Prosecutor meantime unknown, assault James McNeill and Fiona McNeill, then sitting within motor vehicle registered number P111 FEE, both c/o Helen Street Police Office, Glasgow, open a door of said motor vehicle, present a knife at them and demand a bag and jewellery from them and rob them of a handbag and contents, a quantity of jewellery and a quantity of money; you did commit this offence while on bail, having been granted bail on 17 July 2002 at Glasgow Sheriff Court."

[2] He had originally lodged an appeal against sentence but this was withdrawn before us.

[3] The entire evidence against the accused was based on identification from the complainers who were husband and wife and who both identified the accused in the dock as the person who had perpetrated the crime and also picked him out at a previous identification parade and from an exhibition of photographs shown to them.

[4] The appellant lodged the following ground of appeal:

"At the commencement of proceedings the Sheriff was advised that the only issue in the trial was that of identification. The trial then commenced and the first witness was called to give evidence. After the witness confirmed the identity [sic] the Sheriff then turned to the jury and addressed the jury on the procedures that would be adopted in the course of the trial. During this address the witness remained in the witness box. In the course of the address the Sheriff indicated to the jury the identity of the Procurator Fiscal and the defence solicitor and indicated that the defence solicitor acted for the accused. At this stage on at least two occasions the Sheriff gestured towards the accused who was sitting in the dock. Given that the only issue at the trial was the question of identification of the accused, the Sheriff having identified the accused in Court in the presence of the first witness gave rise to the possibility of there being a miscarriage of justice."

[5] We were informed from the sheriff's report that the narrative in the ground of appeal was substantially correct in as much that the wife complainer, as the first witness, was sworn in and was in the witness box at the time when the sheriff turned to the jury pointing out the procurator fiscal as representing the Crown and the solicitor in question as representing the accused. It is maintained that as he did the latter he gesticulated or gestured towards the accused in the dock, although he said nothing more. In his report to us the sheriff cannot remember whether he did make such a gesture or indication but we are prepared to approach the matter on the basis that he could well have done.

[6] There is no complaint as to the directions given by the sheriff to the jury at the conclusion of the evidence nor any question of lack of sufficiency of evidence. The appeal was solely concerned with the issue to which we have just referred and to whether or not it amounted to a miscarriage of justice, or at least rendered the trial unfair in the particular context.

[7] It also has to be stated that Mr. Shead made no criticism of the use of dock identification in this case and did not therefore rely upon anything said by the Privy Council in the recent decision of Holland v H.M. Advocate 2005 S.C.C.R. 417.

[8] Mr. Shead's submission, accepting as he had to that the sheriff had not made any suggestion to the jury at the point of time in question that the accused had committed the crime, described the situation as one of "appearances" in the sense that indicating the accused in the dock at least gave rise to the possibility that the witness's subsequent evidence and identification could be jeopardised or influenced by that particular exercise to an unreasonable extent or to a material extent in any event.

[9] In reply the advocate depute took us to the passages in the evidence of both witnesses particularly in cross-examination where they confirmed their identification, in the case of the husband, to a greater extent than he had admitted in chief. The jury was therefore faced with two witnesses who had positively identified the accused in court as the perpetrator of the crime together with the evidence also emanating from the same two witnesses as regards the identification parade and the photographs. The advocate depute drew the sharp distinction between indicating the presence of the accused in the dock as such and the question for the jury as to whether or not the accused had in fact carried out the crime. He submitted that there was no reasonable basis for suggesting anything done by the sheriff, taken at its highest, could have had any influence on the witness in question when it came to the matter of identifying the accused as the perpetrator of the crime.

[10] We are firmly of the view that the distinction made by the advocate depute is entirely correct namely between the fact that the accused person is the person in the dock on the one hand and on the other the question of whether or not the accused had committed the crime. Obviously the question of identification in this case was crucial to that latter question but there is nothing we consider the sheriff is said to have done which could in our view have any material influence on the witness's evidence. To describe the case as one of "appearances" in the sense of what the well-informed bystander watching the proceedings might have taken from the sheriff's conduct is, in our opinion, nothing to the point since the whole matter does not bear upon the real issue before the jury, namely whether or not the accused committed the crime, which they held by a majority that he had so done.

[11] It is perhaps worth commenting that the practice adopted by the sheriff of swearing in the first witness before describing what might be described as "the cast of players" before the jury is a diminishing practice and it may be better thought that there should be no witness in the witness box at the time that the appropriate opening remarks by the judge are made. We understand that that is the more common practice at this time and would seem to us to be preferable to avoid the sort of question which has been raised in this case.

[12] However, for the reasons we have given we are satisfied this appeal is without merit and, as was stated in open court, it is refused.