Criminal Appeal Court clarifies corroborative status of CCTV evidence 

The court has issued a judgment on the issue following a reference from the Sheriff Appeal Court.

CCTV evidence

The Lord Justice Clerk, Lady Dorrian, sitting with Lord Drummond Young and Lord Turnbull, heard that the appellant Jacqueline Shuttleton was found guilty after trial of a breach of section 3 of the Road Traffic Act 1988, but she was granted leave to appeal against her conviction on the question whether the justice of the peace erred in admitting evidence contained on CCTV footage from the locus.

The court was told that between 10 and 11pm on 14 March 2017 a police officer, PC Birrell, was on patrol in a marked police vehicle when he observed the two vehicles in question at the locus, in the “wrong lane” blocking the carriageway.

A colleague, PC Russell, attended shortly thereafter, when the damaged vehicles had been moved to the roadside.

The appellant was the driver of one of the cars, a white VW Polo, and PC Birrell established that the vehicles had been involved in a collision which had been captured on Glasgow City Council public access CCTV.

The footage, which was lodged as Crown label 1, showed the car being driven by the appellant travelling on the main carriageway in the direction of the camera, indicating left, before suddenly turning right and driving into the path of the other vehicle which was following, causing the collision, with the two cars blocking the carriageway in the positions as PC Birrell later found them.

During the trial, objection was taken to the admission of the CCTV evidence, including objection on the basis that the provenance of the video had not been proved, but the justice repelled the objection.

‘The cluedo reference’

The JP also considered that the footage thereby became real evidence which was then available as proof of fact, with reference to the case of Gubinas and Radavicius v HM Advocate 2017 SCCR 463.

The Sheriff Appeal Court considered that an issue of novelty and complexity arose, as it was at least arguable that Gubinas suggested that “a corroborated case could be established on the basis of a single piece of CCTV alone”, where the provenance of the footage is properly established, and it was therefore appropriate to refer the matter for the opinion of the High Court of Justiciary.

The court was asked to answer three points of law, namely: (i) where the actus reus of an offence libelled is captured on CCTV footage, and the only evidence of the actus reus of that offence is said CCTV footage, can the evidence of two police officers who attended after the incident and viewed the CCTV footage amount to corroboration or is it no more than descriptive of a piece of real evidence?; (ii) where the actus reus of an offence is captured on CCTV footage, the only evidence of the actus reus is said CCTV footage, and the provenance of the CCTV footage is established, can said CCTV footage alone constitute sufficient evidence of the actus reus of the offence?; and (iii) where the actus reus of an offence is captured on CCTV footage, the only evidence of the actus reus of the offence libelled is said CCTV footage, and the provenance of the CCTV footage is thus established, is the fact finder entitled to find the actus reus established based on the fact finder’s viewing of the CCTV footage?

For the appellant, it was submitted that in Gubinas the court had not attached some special status to CCTV evidence. It had not removed the central requirement of corroboration for the commission of the crime and the identification of the perpetrator.

At para 59 of Gubinas the court stated that: “….once the provenance of the images is shown, they become real evidence in causa which the sheriff or jury can use to establish fact, irrespective of concurring or conflicting testimony. Even if all the witnesses say that the deceased was stabbed in the conservatory, if CCTV images show that he was shot in the library, then so be it”.

It was argued that this “cluedo reference” caused the Sheriff Appeal Court to consider that the actus reus might be established on the CCTV evidence alone, but in light of the contents of the opinion as a whole, this could not be interpreted as meaning that the commission of the crime or the identification of the accused could be proved by one source of evidence – neither the cause of death nor the locus was an “essential fact” requiring corroboration.

‘Sufficient evidence’

The High Court answered this first question in the reference in the negative, and the second and third questions in the positive.

In an opinion with which the other appeal judges agreed, the Lord Justice Clerk said: “In my opinion it is clear from Gubinas that as long as the provenance of the recording is proved by corroborated evidence, or otherwise properly established, the content of the recording becomes proof of fact of the events shown thereon. This principle applies equally to identification, but there is one major difference: proof of identification necessarily relies upon comparison. For that reason alone, where a photograph is used for comparison purposes, the provenance of the photograph must also be established.

“In referring to the CCTV footage as ‘a silent witness’ the court should not be understood as indicating that the footage is to be considered equivalent to the testimony of one eye witness, rather than real evidence which itself is sufficient proof of the inferences of fact which might reasonably be drawn from a viewing of its contents. In fact, the court noted the difficulty which can arise when ‘evidence’ is equated with ‘testimony’ (para 57). Unlike the testimony of a witness, which must be assessed for accuracy, reliability and credibility, footage of adequate quality requires no such assessment. The only issue is what the footage shows, objectively viewed, and what inferences that footage might reasonably bear.”

Lady Dorrian continued: “In para 68 the court noted that ‘If the only evidence of, for example, identity comes by way of a comparison of video images with the accused in a photograph, there will be corroboration if the provenance of the recording and the photograph are each proved by two witnesses’.

“The flaw in the appellant’s argument is apparent from this sentence: in this example, the photograph does not provide independent evidence of an accused’s commission of the offence in question. It does not constitute ‘corroboration’ of the identification of the offender, rather it is merely the method by which the comparison necessary for the proof of identification may be carried out. In Gubinas the court made it clear (paras 57-61) that it considered that the correct understanding of Steele v HMA 1992 JC 1 was that a fact finder may rely on CCTV footage as proof of the commission of the offence or that the accused committed it.

“CCTV footage could only supersede the testimony of witnesses if the footage itself, once provenance was established, constituted sufficient proof of the facts shown thereon. This is equally applicable to the ‘cluedo’ reference in para 59 of Gubinas. It is the provenance of the real evidence, not its substance, which must be proved by corroborated evidence; the finding of a fingerprint; or of DNA; or in the case of CCTV footage, proof that the footage is a recording of the event which gives rise to the charge. It is in my view misleading to talk of corroboration in the conventional sense when referring to real evidence, or to refer to it as ‘self-corroborating’.

“That real evidence, so long as its provenance is properly established by corroborated evidence (or, of course, agreement or certificate) can itself be sufficient for proof of the actus reus of an event can be seen from Ryrie v Campbell 1964 JC 33. In that case the occurrence of an offence of driving without due care and attention was established entirely by proof of real evidence in the form of tyre marks, paint and damage, which was established by the testimony of two police officers. A submission that such evidence could not provide sufficient proof of the commission of an offence was rejected.

“This is entirely consistent with the conclusions in Gubinas that once the provenance of a recording is established, the contents may provide sufficient evidence as to the commission of the crime or the identity of the perpetrator.”

She concluded: “I therefore consider that the questions in the reference should be answered as follows:

“1. No. Any evidence of the police officers relating to the contents of the footage, as viewed by them, would be descriptive only.

“2. Yes, in the circumstances identified in the question the footage would constitute sufficient evidence of the actus reus.

“3. Yes, in these circumstances the fact finder would be entitled to find the actus reus established from his own viewing of the footage.”