Appellant: Jackson QC, Mitchell; Drummond Miller LLP

Respondent: Harper AD; Crown Agent

17 October 2012

Introduction
[1] On 28 October 2011 the appellant was convicted, after trial, at Glasgow High Court, as libelled, of the following charge:

"On 20 January 2011 at Glenhove Stores, 92 Glenhove Road, Cumbernauld, you NICHOLAS RUSSELL HENRY, while acting with another whose identity is to the Prosecutor meantime unknown, did assault Allan Scott, c/o Strathclyde Police, Cumbernauld, and, with your faces masked, brandish a machete and wooden pole or similar instruments at him, pursue him, and repeatedly strike him on the head and body with said machete and pole, all to his severe injury, permanent disfigurement, permanent impairment and to the danger of his life and you did attempt to murder him."

[2] The appellant was sentenced to 12 years' imprisonment, back-dated to 7 February 2011.

[3] The appellant has appealed against conviction. No issue is taken with the sentence imposed.

Grounds of appeal
[4] The appellant presents two grounds of appeal. Both relate to the evidence relied on by the Crown to identify the appellant as one of the two perpetrators of the assault on the complainer. These grounds are as follows:

"1. The Crown case depended on the identification of Mr Hendry as the perpetrator of the crime and that the identification was made purely on the evidence of police officers who viewed a CCTV footage of the crime being committed and identified Mr Hendry from that footage (Charge to Jury page 30 line 7 to 15).

That evidence should not have been admitted. An objection to its admissibility was dealt with at a preliminary evidential hearing and the motion to rule that evidence as admissible was wrongly refused.

That evidence should have been ruled inadmissible for a number of reasons including the following:

a. The quality of the CCTV footage and the lack of detail shown was such that no proper identification could be made from it.

b. There was clear defence evidence that the CCTV footage was of such a quality as to make proper identification impossible and unsafe. That evidence came from a number of witnesses including a former police officer who was the leading Scottish expert on this subject while in the police.

c. The circumstances of the identification were that the police officers concerned had gone to detain Mr Hendry and had information that he was the perpetrator of the crime. When they saw him and thereafter identified him as the person on the CCTV footage they did so having already been influenced that he was the perpetrator.

d. Mr Hendry was not known to these police officers prior to this.

e. No attempt was made to have people who knew Mr Hendry examine the CCTV footage with a view to stating whether or not they could identify him from it. This could easily have been done.

f. Even if the evidence were to come from police officers there should have been an identification parade at which police officers, other than those who had gone to detain Mr Hendry, would have viewed the CCTV footage and thereafter would have been asked if they could identify the person in the footage at an identification parade involving the Appellant.

2. Further and in any event no reasonable jury could have convicted in that no reasonable jury could have relied on the identification of Mr Hendry by the police officers by reference to the CCTV footage. The reasons for that are by reference to the reasons in point one above".

Pre-trial procedure

[5] Section 79(1) of the Criminal Procedure (Scotland) Act 1995 provides:

"Except by leave of the court on cause shown, no preliminary plea or preliminary issue shall be made, raised or submitted in any proceedings on indictment by any party unless his intention to do so has been stated in a notice under section ...72 (3)...of this Act."

[6] An objection by a party to the admissibility of any evidence is a preliminary issue: 1995 Act section 79(2)(b)(iv). In terms of section 72(6) of the Act, at a preliminary hearing the court shall, having heard how the accused pleads to the indictment (and in the event that he pleads not guilty or that any guilty plea is not accepted by the Crown), unless it considers it inappropriate to do so, dispose of any preliminary issues within the meaning of section 79(2)(b) of which a party has given notice.

[7] The appellant was indicted to a preliminary hearing on 3 June 2011. On that date the court allowed to be received, although late, a minute on behalf of the appellant, which had been lodged in terms of section 72(3) of the 1995 Act, objecting to the admissibility of the evidence which it was anticipated that the Crown would seek to lead from three police officers, the witnesses Thomas Thackeray, Stuart Greenhorn and Linda Bain, as to their identification of the appellant as the perpetrator of the crime libelled on the basis of their observations of CCTV footage recorded at Glenhove Stores, 92 Glenhove Road, Cumbernauld on 20 January 2011 and contained within Crown label productions 1 and 4. The minute included the following contentions:

"It can be seen from viewing Crown productions 1 and 4 that the individuals involved in the commission of said assault had their faces masked. The CCTV footage does not permit a clear enough view of the perpetrators to permit the Crown witnesses aforesaid a proper identification.

It is understood that the police witnesses aforesaid have no expert qualifications in facial recognition technique. That being so to allow the purported identification evidence of the minuter as being involved in said assault at trial would permit the very real possibility of a miscarriage of justice occurring. Accordingly the identification evidence sought to be adduced by the Crown at trial should be excluded."

[8] At a continued preliminary hearing on 4 July 2011, the court appointed 4 August 2011 as a hearing to which witnesses would be cited and evidence led in order to dispose of the minute lodged on behalf of the appellant. That diet was thereafter discharged on a joint application of parties made in terms of section 75A of the 1995 Act and a new diet of 18 August 2011 assigned in lieu.

[9] The hearing on 18 and 19 August 2011 was conducted by Lord Pentland. He heard the evidence of the three police officers named in the minute and two witnesses led on behalf of the appellant, Dr Allan McNeill, a psychologist and lecturer at Glasgow Caledonian University; and Andrew Rolph, a former police officer who had been in charge of the scientific support department of Grampian Police and had retired with the rank of detective inspector. Both Dr McNeill and Mr Rolph gave their evidence under reference to their respective reports.

[10] Lord Pentland repelled the objection to the admissibility of the evidence of the police officers of their identification of the appellant as the person shown in the CCTV footage. In his report to this court he summarises the evidence he had heard, the submissions of parties on that evidence and his reasoning as follows:

"2. In short, the evidence of the officers was to the effect that they studied the footage the day after the offence; some time later they identified the accused as the black-jacketed assailant because they recognised him from the footage and not, it may be noted, because they were previously familiar with him. By the time when they identified the accused, the officers were each aware that he was under suspicion as one of the perpetrators; there was police intelligence to that effect (which had apparently been graded as being reliable) and there was other circumstantial evidence, of which they were also aware, capable of pointing to him as one of the attackers. The information which had been accumulated against the accused by the stage of the identifications had been sufficient to justify a warrant being granted for his apprehension. The first two officers, Thackery and Bain, identified the Minuter at the time of executing the warrant and the third, Greenhorn, made his identification after the accused had been arrested and charged and was in police custody.

3. Each of the officers gave concrete and specific reasons to explain why they were able confidently to say that the Minuter was one and the same as the black-jacketed attacker. I need not go into the details (which differed somewhat as between the first of the witnesses and the other two), but I note that the footage clearly shows that this perpetrator did not have his face completely covered throughout the attack. I think it is fair also to observe that something at least can be discerned of his height and build and of the way he moved.

4. Against that body of evidence, Mr Jackson relied inter alia on the opinions expressed by the two facial recognition experts whom he called as witnesses. Their evidence was broadly to the effect that the footage was unsuitable to allow any reliable identification to be made from it. This was not because of the quality of the film, as is often the case, but rather because the images were insufficiently detailed to allow any safe identification to be made. Dr McNeill said that in the circumstances any identification should be treated with caution. Mr Rolf went further and said that he would strongly advise against using the images as any form of identification.

5. Mr Jackson did not ultimately challenge (at least for present purposes) the good faith of the officers in purporting to identify the Minuter. Instead, he submitted that they had inevitably approached the issue with a particular mindset (or, as he put it, idée fixe) because they knew that the Minuter was already suspected of being one of the assailants. The danger was, Mr Jackson said, that a jury would be unduly influenced by the identification evidence, given as it was by police officers engaged in the investigation of this particular offence. They could not be regarded, in any realistic sense, as being objective or independent, but because of their status as police officers their testimonies would inevitably be stamped with a degree of respectability and authority. This, it was argued, gave rise to a serious risk of unfairness, particularly when one recalled the strong reservations expressed by the expert witnesses about the dangers of facial identification in general and in the circumstances of the present case in particular.

6. I was at one point somewhat attracted by those submissions, but on further reflection I have come to be of the opinion that they are unsound. It is true, as Mr Jackson submitted, that the circumstances of the present case are not covered by the ratio of Bowie v Tudhope 1986 SCCR 205 or indeed of Robertson v Docherty 2011 SCCR 123 (at least insofar as I can understand what the latter case decided). But like Lord Hodge in HMA v Ronald 2007 SCCR 466 I am not persuaded that there exists any rule of law rendering inadmissible evidence from a witness of his or her understanding of what CCTV footage shows. As Lord Sorn observed in a characteristically illuminating judgement in Hopes and Lavery v HMA 1960 JC 104 there is no rigid rule that only witnesses possessing some technical qualification can be allowed to expound their understanding of any particular item of evidence. His Lordship pointed out that expositions of this kind are often given, subject to the control of the presiding judge. It is all, he said, a question of circumstances.

7. Bearing that guidance in mind, I ask myself whether there would be anything fundamentally unfair to the accused in allowing the identification evidence of the three police officers to be given. In my view, there would not be. The elusive line (between fairness and unfairness) referred to by Mr Jackson has not, in my opinion, been crossed. It will, of course, be open to the Minuter to challenge head-on the reliability of the evidence of the officers and to rely on the views of the expert witnesses in so doing. It will also be open to the defence to put into play the theory of a preconceived mindset or a deliberate or sub-conscious predisposition on the part of the officers to make an identification on the basis that the Minuter had already fallen under suspicion for other reasons. In this connection, I do not accept Mr Jackson's submission that it would be particularly difficult for this line to be developed because of its potentially prejudicial effect. A certain level of discretion might be needed, but there is no reason to suppose, in my view at least, that the point could not adequately be put without compromising the rights of the accused. The distinction between mere suspicion and incriminating evidence is one that a jury can certainly be expected to grasp and the trial judge can, if necessary reinforce the relevant principles to the jury. It must be remembered also that the trial judge will ensure that the limitations and risks of identification evidence of the sort to be relied on by the Crown will be appropriately explained to the jury in line with the now well-established directions on such evidence.

8. It seems to me that in order to succeed with the present challenge to the admissibility of the police identification evidence Mr Jackson would need to satisfy me that unfairness would inevitably arise from its presentation. That is, I venture to suggest, a high threshold. I am not, in the final analysis, persuaded that it has been crossed and I must accordingly repel the Minute".

Trial

[11] As Mr Jackson QC, who had appeared for the appellant at trial and who appeared on his behalf before this court, confirmed, there was no issue but that the assault on the complainer which had been recorded in the CCTV footage was properly to be characterised as an attempted murder. The issue was whether it was established that the appellant had been one of the two assailants. When spoken to by the police, the complainer had said that the attacker with the knife resembled the appellant in his build, but he was unable positively to identify either of the masked men when he came to give his evidence in court. A tenuous link between the appellant and the attack was provided by evidence to the effect that the same telephone which had been used to call the complainer on the morning of 20 January 2011 and arrange that he went to Glenhove Stores, had been used, one minute after the first call made to the complainer, to call a mobile telephone number associated with the appellant. Beyond that the Crown relied on the evidence of Constables Thackeray, Greenhorn and Bain as to their interpretation of the CCTV footage. Mr Jackson was accordingly well founded when he said that the identification of the appellant as a perpetrator of the murderous assault on the complainer depended upon the evidence of the three police officers which had been objected to at the hearing before Lord Pentland.

[12] The appellant gave evidence, speaking to his special defence of alibi, as did his partner. Mr Rolph and Dr McNeill were also led on behalf of the appellant. Their evidence was given at somewhat greater length than it had been before Lord Pentland, but it was to the same effect. Putting it very shortly, in Mr Rolph's view there was simply not enough information recorded in the CCTV footage to allow a positive identification to be made. Dr McNeill considered that the positive identification evidence supplied by Thackeray, Greenhorn and Bain should be treated with caution and that Mr Rolph's view (and that expressed in a report commissioned by the Crown but not lodged or led in evidence) that there was insufficient detail in the CCTV footage to make an accurate identification, was consistent with the scientific literature on facial recognition and matching.

[13] In convicting the appellant the jury must be taken to have rejected the alibi evidence given by the appellant and his partner and accepted the identification by the three police officers of the person shown on the CCTV footage with his face partially obscured as the appellant, notwithstanding the reservations expressed by Mr Rolph and Dr McNeill.

Submissions of parties
[14] Mr Jackson indicated that he was insisting in both of his grounds of appeal: (1) that the evidence of the police officers should not have been admitted, and (2) that no reasonable jury could have convicted the appellant in that no reasonable jury could have found the evidence as to identification reliable. However, exactly the same consideration informed each of the two grounds: the identification evidence relied on by the Crown was simply and clearly unreliable. Mr Jackson explained that there were two sides to this coin: first, the unchallenged expert evidence led on behalf of the appellant; second, the circumstances in which the officers in this case had come to make their identifications. To illustrate what was to be seen on the first side of the coin, Mr Jackson reviewed the transcripts of the evidence given by Mr Rolph and Dr McNeill at trial. In considering what he described as the defence experts' evidence, Mr Jackson said that it was to be borne in mind that there was no contrary expert evidence led by the Crown. It was to be assumed that had the Crown had available to it any material that would "shoot down" the evidence of Mr Rolph and Dr McNeill, it would have been led.

[15] The second side of Mr Jackson's coin related to the circumstances in which the police officers who gave evidence on identification had come into contact with the appellant. They had not known him previously. Constables Thackeray and Bain had detained the appellant on the basis of "high quality intelligence" that they considered good enough to meet the terms of section 14 of the 1995 Act. DC Greenhorn had taken a DNA sample from the appellant by means of a mouth swab after the appellant had been detained. The officers involved in viewing the CCTV footage and making their identifications were accordingly "programmed" to regard this complete stranger as being the perpetrator of the assault. It was the equivalent of asking an eye-witness to a crime to look into the back of a police van where a suspect was being held, and then inquiring of the eye-witness whether the person being held was the same person whom the eye-witness had seen committing the crime. It could have been done differently. Officers not involved in detaining the appellant could have been asked to view the CCTV footage and then express a view on identification in conditions equivalent to that of an identification parade, perhaps being asked whether they could identify one of a number of persons shown in photographs as the person shown on CCTV.

[16] Both sides of the coin were, in Mr Jackson's submission, important.

[17] In response, the advocate depute reminded the court that the defence experts had not said that the appellant could not be the person shown in the CCTV footage. Mr Rolph had accepted in cross-examination that the identification of the appellant as the person shown in CCTV footage could be correct. The trial judge had directed the jury as to the need to take care with their assessment of the identification evidence. When one looked at the transcripts of the police officers' evidence one could see that the officers gave detailed reasons in support of the identifications that they had made. It was not simply a matter of asserting that the appellant was the person shown in the CCTV imaging. The officers had an advantage over the experts in the period of time they had had to observe the appellant. The experts had never met the appellant prior to their appearing in court, although they had seen photographs of him. It had been open to the defence to lead their evidence in response to that of the Crown and to criticise the evidence of the Crown witnesses and the defence had done so. Assessment of the strength or otherwise of the identification evidence was a jury question. Clearly the jury had accepted the evidence of the police officers. They had been entitled to do so.

Discussion
Admissibility of evidence of identification from CCTV images
[18] The present case is not one where the witnesses relied on by the Crown to identify the accused were speaking to a direct observation but, rather, they were speaking to their examination of CCTV footage and their conclusion that one of the persons shown there as attacking the complainer was the appellant. That may introduce different difficulties in relation to the reliability of the identification, but it does not introduce any difference in principle. It is a competent way of establishing identification: Bowie v Tudhope 1986 SCCR 205. For all that the witness's previous acquaintance with the subject may enhance the reliability of an identification (see eg Strachan v HM Advocate 2011 HCJAC 66) evidence of identification is admissible irrespective of whether the witness making the identification had any previous knowledge of the person whom the witness identifies as the person shown in the CCTV images: Robertson v Docherty supra and logically that must be so. Nothing as to the generality of the admissibility of evidence as to identification based on photographic, video or CCTV images was challenged by Mr Jackson. He specifically accepted that a good identification might be arrived at on the basis of CCTV footage. That this case involves the interpretation of CCTV imaging does not therefore make for any speciality. Mr Jackson specifically accepted that the argument that he was advancing might apply equally where what was in issue was direct eyewitness identification. Turning then to that argument, what it comes to is a criticism of the quality of the evidence relied on for identification by the Crown and the consequent weight that can be attached to it. Because, according to the submission made on behalf of the appellant, the quality was so poor and the consequential weight so negligible, it should not have been admitted by the court when objected to and, once admitted, it should have been rejected by any reasonable jury, properly directed, as an inadequate basis for a conviction. A difficulty for that argument, which was highlighted by the advocate depute, is that it calls for an assessment of the quality of the evidence, and assessment of evidence is a matter for the jury: Holland v HM Advocate 2003 SCCR 616 at paras 36 and 39; it is, as the advocate depute put it, a jury question.

The first ground of appeal
[19] While we do not rule out the possibility of proposed evidence of identification being ruled as being inadmissible pre-trial, simply upon the basis of its likely unreliability or the inevitable unfairness that it would introduce, given that, in our system, the assessment of the quality of evidence is a matter for the jury, such a case would be extreme (cf Holland v HM Advocate 2005 1 SC (PC) 3 paras 41 and 57) and the supposed inadequacy of the evidence would have to be capable of being very clearly demonstrated. This, as we will expand upon below, is not such a case. In our opinion, Lord Pentland was correct to repel the objection to the admissibility of the evidence of the three police officers, for the reasons that he gave, with which we agree.

The second ground of appeal

[20] This leaves the appellant's second ground of appeal which is in terms of section 106(3)(b) of the 1995 Act; that the jury's verdict, based as it had to be on the police officers' identification of the appellant from the CCTV footage, was one which no reasonable jury, properly directed, could have returned. While both grounds of appeal involve the appeal court being invited to trespass on what is primarily a jury function, the two grounds relate to different stages in the process. The first ground looks forward to the introduction, at a trial which has yet to take place, of a discrete piece of evidence; hence the emphasis on the supposed identification being necessarily unreliable and consequently inevitably unfair. The second ground, on the other hand, looks back on a guilty verdict pronounced at a trial which has been concluded. It is therefore open to the appeal court to consider the verdict in the light of all the evidence, having regard to all the elements in the proceedings, including the way in which the identification evidence was obtained: cf Holland v HM Advocate 2005 1 SC (PC) 3, at para 41. An argument to similar effect to that made here, albeit in relation to direct eyewitness identification, was made in Jenkins v HM Advocate 2011 SCCR 575 and in Gage v HM Advocate (No 2) 2012 SCCR 254. While in Gage (No 2) the argument was unsuccessful, in Jenkins it succeeded. As appears from Jenkins, the test is a very high one, but an appeal court, applying its collective knowledge and experience to a consideration of the identification evidence upon which a properly directed jury has convicted the appellant, may be able to conclude that the verdict under appeal was indeed one which no jury could reasonably have returned. Here we simply cannot come to such a conclusion. Most of the points made by Mr Jackson as indicating the weaknesses of the identification of the appellant, would appear to be uncontroversial: eyewitness identification is a difficult task in which mistakes can be made; this is particularly so where the person supposedly identified is a stranger to the witness; while it may be thought to offer some advantages over direct eyewitness identification, identification on the basis of a still or moving photographic image, such as the CCTV footage here, introduces its own difficulties due to the imperfect quality of the image; identification will be the more difficult where the face is partially obscured, as by a hat or scarf; any identification may be regarded as suspect in the absence of the safeguards provided by a procedure equivalent to an identification parade; and an identification will be particularly suspect when the person identified is first introduced to the witness in circumstances suggestive of the person's guilt. However, against these points, all of which we would see as having been fully ventilated before the jury, there was the detail of the evidence given by the police officers and the explanations which they gave as to why it was that they were able to identify the person wielding a knife in the CCTV footage as the appellant, explanations which members of the jury had been able to consider as they viewed the relevant images during the course of the officers' evidence.

[21] DC Greenhorn had taken a DNA sample from the appellant by means of a mouth swab on 22 January 2011. In order to do so he had been in close proximity to the appellant's face. When the CCTV footage was played in court he identified the person shown in the images wearing a black jacket and blue gloves and holding a knife as the appellant. DC Greenhorn indicated that the full bottom half of the person's face was shown in the footages; on a few occasions there was a "very good facial". He explained how he was able to make the identification by reference to "very distinctive" lines on the person's face and to the person's muscular build and size. According to DC Greenhorn, "It's the same person." In cross-examining DC Greenhorn, Mr Jackson accepted that the man shown in the CCTV footage had the same build as the appellant. He did not challenge the police officer's good faith or credibility; he accepted that the witness was sure that the man was the appellant. However, confirming that DC Greenhorn had not known the appellant prior to commencement of the enquiry and that he had not come across him "accidentally", Mr Jackson suggested that DC Greenhorn's certainty that the person shown in the footage was the appellant was the result of the officer being "totally conditioned" by what he had learned during the course of the police investigation, including certain intelligence which did not feature in the evidence in the case, to believe that the person whose image had been caught on CCTV was the appellant. Mr Jackson put to DC Greenhorn: "We may hear evidence from various experts that the CCTV cannot be used for identification. It just doesn't have that quality of picture about it. It cannot ever be used with certainty. I just take it you disagree with that?" to which DC Greenhorn replied: "I do. I would not have said it was him if I was not sure."

[22] DC Thackeray had detained the appellant and thereafter interviewed him on 5 February 2011 for about 15 minutes. When giving evidence he was shown the CCTV footage and photographic stills taken from the CCTV images. When asked whether he could identify either of the individuals carrying out the attack he indicated that "the person with the black jacket who was in possession of the sword" was the appellant. DC Thackeray explained that when the person first entered the shop his face was covered with a scarf but due to the fierceness of the attack the scarf fell away from the lower part of his face. The person was wearing a hat but the only part of the face that was concealed was towards the eyebrows and upwards. It was clear from the shape of the face, the height and build of the person that he was the appellant (although the appellant had lost weight since the date of the interview). He had the same nose, the same mouth, the same chin. On one of the still images, the nose, the deep lines either side of the nose and the shape of the mouth were clearly visible. DC Thackeray concluded his examination-in-chief with: "I'm in no doubt, sir. Having seen him on 5 February and having spent time in his company, I'm in no doubt he is the person depicted in the CCTV." Again, during cross-examination Mr Jackson did not dispute that the officer had no doubts about his identification and that he firmly believed that it was accurate. Mr Jackson confirmed that DC Thackeray had viewed the footage "a lot" but that neither the officer nor any other witness giving evidence as to identification had previously known the appellant. Mr Jackson put it to the police officer that nothing of the nature of an identification parade had been carried out. Otherwise DC Thackeray's evidence was not directly challenged.

[23] DC Bain had also taken part in the detention of the appellant and had been present during the interview of the appellant on 5 February 2011. Like DC Thackeray, she had been sitting close to the appellant in the interview room for a period of about 15 minutes. On being shown the CCTV footage in court she indicated that the individual shown there in a black top with blue gloves and a knife was the appellant. When asked what it was that allowed her to identify the appellant she replied: "At one point his scarf or mask falls down and there [are] distinctive creases at the side of the nose." She indicated that the creases were also on the side of the cheek. She considered that these were particularly distinctive to the appellant. When asked whether there was any other aspect that enabled her to identify the appellant, she first answered in the negative but, having indicated the point in the CCTV footage which best illustrated what she described as the distinctive lines, she mentioned the build of the individual shown on CCTV as being similar to that of the appellant. She was also shown a still image which she said showed the distinctive lines. She accepted that she had not previously known the appellant and that nothing of the nature of an identification parade had been carried out. Cross-examination was limited to confirming that the witness had not been involved in any policy decisions relating to how the enquiry should be conducted; that her evidence was that the man shown on CCTV was the person she had detained; and that there had been some chat between her and DC Thackeray about the identity of the appellant in the house where they had detained him.

[24] Thus, taking what was said by the three police officers in isolation, there was, in our opinion, a body of competent, admissible and credible evidence, quite unshaken by cross-examination, which, if accepted by the jury, identified the appellant as one of the two men responsible for the assault on the complainer. It had weaknesses, as were highlighted by Mr Jackson in his cross-examination, which might have led a jury to reject it as unreliable, but it also had the strength of any identification by reference to a photographic image which is that the relevant imaging was available for consideration by the jury while the witnesses speaking to identification were explaining why they had come to their view. However, what is of importance for the second ground of appeal is that looking at the Crown evidence for the moment in isolation it cannot be said that no reasonable jury, properly instructed, could find that evidence to be reliable and therefore such as to provide a basis for a guilty verdict.

[25] Of course, the jury had also to consider the defence evidence. Mr Jackson accorded that evidence particular weight. As we understood him, this was because it was to be characterised as expert evidence and because it had not been challenged. Therefore, on Mr Jackson's approach, what had been led for the defence was to be taken as effectively trumping any evidence to contrary effect. That seems to be the position taken in the Grounds of Appeal where the following appears:

"There was clear defence evidence that the CCTV footage was of such quality as to make proper identification impossible and unsafe. That evidence came from a number of witnesses including a former police officer who was the leading Scottish expert on this subject while in the police."

It will also be recalled that Mr Jackson put it to DC Greenhorn:

"We may hear evidence from various experts that the CCTV cannot be used for identification. It just doesn't have that quality of picture about it. It cannot ever be used with certainty."

In his submissions before us Mr Jackson referred to what had been led from Mr Rolph and Dr McNeill as "the expert evidence".

[26] Insofar as the evidence given by Dr McNeill and Mr Rolph related to normal human capabilities and therefore the reliability of the identifications which the Crown witnesses had claimed to have been able to make, it is highly questionable whether it was properly admissible: Gage v HMA (No 1) 2012 SCCR 161. However, for whatever reason, it was not objected to and therefore was before the jury. It did not follow that the jury was bound to accept it or, even if it did accept it, to accept the conclusion that, on the basis of all the evidence, it had not been established that the appellant was one of the perpetrators of the assault on the complainer. Describing it as "expert" evidence does not change that. Where such evidence is admitted, the expert witness does not take the place of the decision-maker. As Lord President Cooper observed in Davie v The Magistrates of Edinburgh 1953 SC 34 at 40: "Expert witnesses, however skilled or eminent, can give no more than evidence. They cannot usurp the functions of the jury or judge sitting as a jury...".

[27] Turning then to the defence evidence, Dr McNeill was a psychologist and academic who had recently completed a funded project entitled "False Identification of Faces". Much of his work was in the area of misidentification where the literature showed that "most of us are much worse at recognising faces than we might imagine". Dr McNeill explained that while people are exceptionally good at recognising faces if those faces are well-known, the opposite is true if the face is not well-known, even in optimal conditions. Even with a test designed to make the task as easy as possible, people still make errors in the region of about 20 per cent. While perhaps not entirely clear from the transcript of his evidence, Dr McNeill's report indicates that he had the opportunity to view the CCTV footage spoken to by the three police officers led by the Crown. In examination-in-chief Mr Jackson asked Dr McNeill whether he would consider using a CCTV image of this quality as a safe way to identify a person whom the police already thought might be the perpetrator of the assault on the complainer. Dr McNeill responded by explaining that what the research shows is that even if a CCTV image is of very good quality it is still a very difficult task to match it to another image of a person or even to a live person. If the CCTV image is occluded in some way or the image is degraded in some way, it becomes even more difficult. Therefore, in Dr McNeill's opinion, the positive identification evidence supplied by Thackeray, Greenhorn and Bain should be treated with caution. Very much the same thing was said by the trial judge when in the course of his directions he warned the jury of the risk of misidentification as he was required to do in terms of Lord Justice-General's Practice Note of 18 February 1977 (see also McAvoy v HM Advocate 1992 SLT 46 at 50 to 51). The evidence of Dr McNeill did not take the matter any further.

[28] Mr Rolph's evidence drew heavily on his experience as a police officer with special responsibility for the deployment of a number of investigative techniques. He explained his usual methodology in considering an identification from CCTV imaging which is to enhance the CCTV footage, look at the facial features shown there (size and shape of the nose, size and shape of the mouth, distance between the nose and mouth, the type of ears) and note them; then to carry out the same exercise in relation to photographs of the person it was suggested was shown on CCTV; and finally to compare them with a view to concluding whether they were similar or not. On that basis he assesses his comparisons on a scale which includes highly likely, unlikely and insufficient detail to make any meaningful comparison. He had followed that methodology when instructed in the present case. Using "high quality equipment", he had been able to enhance the quality of the CCTV footage which had been viewed by the police officers and shown to the jury, by increasing its sharpness, brightness and contrast. He had then examined that enhanced footage and compared it with photographs of the appellant. Among the questions and answers which followed this introductory part of Mr Rolph's evidence some were particularly relied upon by Mr Jackson when he addressed this court. These were:

Q - "Now, let us say ... that you were examining the CCTV footage, which you have done, and not examining it against photographs but against a person. ...Would you think that there is sufficient detail ...on the CCTV imaging to use that as a base for positive identification of someone?"

A - "No."

Q - "Why do you say that?"

A - "Because there is insufficient information there for anyone, in my view, to positively identify someone."

Q - "We have had police officers in this case ...who come in and say 'We have looked at the CCTV image. We then looked at a person, and we can say that that image allows us to identify that person' ...do you have any comments on the quality of it, CCTV imaging, that would allow that identification to be made?"

A - "... in my view no. In my police career, obviously this is one of the things I had to deal with on a regular basis, because I was in charge of identification, and I would not be happy with someone giving a finding like that, because I do not think, in my view, in my experience that there is enough information there, in that image, no matter what you are looking at, whether it is a photograph or a person or whatever, there is not enough information in that image to make a judgement like that, because you cannot see the eye, you cannot see the mouth, you cannot see the ear, all you are looking at is basically part of the nose."

Q - "So it is not what you comparing it to because if thought there was enough features in the CCTV you might ask to see the person or get better photographs of the person, but the starting point of the CCTV did not have the imaging you required?"

A - "That is correct, yes."

Q - "Now let us say that you are back in the police ... [and someone said] 'Using that quality, that level of CCTV, we can use that to identify someone we had never known before' would you be happy with that?"

A - "No, not at all, no".

Q - "...even if it was somebody you knew well you would not be happy with this level of imaging?"

A - "That is correct."

[29] In cross-examination Mr Rolph confirmed that the still photographs that he had used for comparison purposes had not been taken at exactly the same angles as were shown in the CCTV footage. When it was put to him that if someone on viewing the CCTV images said that the person attacking the complainer was the appellant, Mr Rolph's response was that he could not say anything about that. He accepted that there was a risk of error where a witness saw someone in the street and then purported to identify them in the dock. Confirming what he had said in chief, Mr Rolph said that he did not think that one could "positively identify" the person shown on CCTV from the detail available. When asked to clarify the expression "positively identify", Mr Rolph explained that he thought it would be very dangerous to try and identify someone when there was so little identifiable material.

[30] Re-examination included the following:

Q - "...the police may have thought who it is, but you, as an expert, analysing the CCTV material say that does not have the material and detail to be the starting point of identification?"

A - "That is correct."

Q - ...the police say the man in the video, therefore the man who did this is a certain person. You were asked could they be right in that. Of course they could be right in that it might be that person. I mean you do not know who did this crime?"

A - "Yes, that is correct."

Q - "But you are telling us is that as a method of identifying him, or anybody, the material in the CCTV footage [is inadequate]"

A - "That is correct, yes."

Q - "Let us say ...that we ran an experiment ...where we put 12 white males all roughly the same build, age, in a line and then say to anyone, 'Look at that CCTV footage and now tell us who the person is', do you think you could [make an identification] from that footage?"

A - "No, no. No, I do not think so."

[31] Thus, the basis upon which Mr Rolph was invited to express a view was informed by a comparison of the CCTV footage in an enhanced format with photographs of the appellant whereas what the police officers had spoken to was comparison of unenhanced footage and their direct observations of the appellant. Mr Rolph's way of making that comparison was to note facial features individually in the footage on the one hand and in the photographs on the other and then see if there were correspondences as between particular features. Then, drawing on his experience as a police officer, he was asked whether there was sufficient detail for "positive identification". To that he answered in the negative. He was then asked, again in the context of his specific role in the police, if he would be "happy" were anyone to suggest that they had made an identification from the particular footage. Now, asking a witness whether particular material conforms to his professional standards for "positive identification" is rather different from asking a witness whether he or she recognises a suspect as the person shown on CCTV footage and whatever may be said in favour of the methodology described by Mr Rolph in his evidence, it is not the way in which those who do not share his interests recognise others in everyday life. Moreover, as the advocate depute emphasised, neither Mr Rolph or Dr McNeill went the distance of saying that the person shown on the CCTV footage was not the appellant. However, be that as it may, the critical point is that, entirely correctly, in a charge which is subject to no criticism whatsoever, the trial judge left assessment of the reliability of the identification evidence to the jury. That was the jury's function and, on all the evidence led, it simply cannot be said that they exercised that function in a way that no reasonable jury would have done.

[32] It follows that this appeal must be refused.