NOTE OF APPEAL AGAINST CONVICTION BY GARY ORR AGAINST HER MAJESTY'S ADVOCATE

Factual and Procedural Background

On 13 January 2018, at a convenience store in The City, the Appellant was charged with assaulting the Complainer by repeatedly striking him with a knife, causing severe injury and endangering his life. There was an associated charge of possession of an offensive weapon, and the Appellant had also pled guilty to failing to appear at a court diet. On 3 March 2021, at The City Sheriff Court, the Appellant was found guilty of the assault and possession charges, with a 30-month cumulative sentence imposed, including 3 months for bail aggravations. The remaining charge was admonished. The Appellant appealed the conviction, challenging the identification evidence presented at trial, particularly the reliability of police officers’ identification from CCTV footage.

Legal Issues Presented

1. Whether the sheriff ought to have directed the jury to disregard identification evidence from two police officers who had never seen the Appellant in person.
2. Whether the sheriff’s directions to the jury on the issue of identification were confusing and conflicting, potentially amounting to a material misdirection.
3. Whether the quality of the CCTV images was such that no reliable identification could be made, requiring the sheriff to direct the jury accordingly.

Arguments of the Parties

Appellant's Arguments

• The identification evidence from two police officers was flawed and unfair because they had not seen the Appellant in person and relied solely on CCTV images and police database photographs.
• The sheriff gave confusing and conflicting directions by instructing the jury both to form their own view on the CCTV images and to accept the police officers’ identification evidence, which was argued to be a material misdirection.
• At the oral hearing, it was contended that the poor quality of the CCTV images meant the sheriff should have directed the jury that no identification from the images was possible.

Respondent's Arguments

• No requirement exists that police witnesses must have seen the accused in person to give evidence of identification; the officers had the opportunity to compare CCTV images with police database photographs and images from the caution and charge process.
• No objection was raised at trial to the admissibility of the officers’ identification evidence, and it was too late to raise such an objection on appeal.
• Any misdirection by the sheriff in instructing the jury to accept police officers’ evidence was in favour of the Appellant and did not result in a miscarriage of justice.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by emphasizing the centrality of identification evidence, noting that the testimony of a witness who knew the Appellant by name linked the attacker to the Appellant’s identity. The police officers had compared CCTV footage with police database photographs and images from the caution and charge process, which was deemed a competent method of identification. The court referenced established precedent confirming that police officers may provide comparison evidence without prior personal acquaintance with the accused. The court acknowledged that the sheriff’s directions to the jury on identification could have been clearer regarding the jury’s ability to independently assess the CCTV images versus relying on police identification evidence. However, any ambiguity did not amount to a misdirection that could have caused a miscarriage of justice, especially since the direction favored the Appellant. The quality of the CCTV images was sufficient for the jury to identify the Appellant, and the cumulative evidence supported the conviction.

Holding and Implications

The appeal was REFUSED.

The court’s decision upheld the conviction based on the sufficiency and quality of the identification evidence, including police comparison testimony and witness statements. The ruling confirms that police officers may give identification evidence based on image comparison without prior personal knowledge of the accused, provided the images and photographs are sufficiently reliable. The decision has no broader implications beyond affirming the conviction and clarifying procedural standards regarding identification evidence in similar contexts.