David Cairns

The appellant was convicted of careless driving. At trial, evidence was led of local authority CCTV footage which showed the car driven by the Appellant travelling on the main carriageway and displaying a left indicator before suddenly turning right, into the path of the vehicle which was following, causing the collision.

The defence took objection to the admissibility of the footage in relation to its provenance. This was repelled by the court of first instance which determined that, with reference to Gubinas, the CCTV became real evidence which was then available as proof of fact. The appellant appealed against conviction on the basis that the lower court ought not to have admitted the CCTV footage in evidence.

The Sheriff Appeal Court considered that an issue of novelty and complexity arose and referred the case to the High Court to determine whether a fact finder (justice, sheriff or jury) was entitled to find the criminal act established based on viewing of the CCTV footage. The High Court confirmed that where the only evidence of the crime libelled is recorded footage, and where its provenance is established, it can provide “sufficient evidence” of the criminal act.

You may be forgiven for wondering what is novel or complex in permitting a fact finder to decide whether a criminal act has occurred when presented with footage of it. However, this marks a significant departure from the requirement for corroboration – evidence from two sources – to prove that a criminal act has occurred. In particular, it is worth noting the comments of the Lord Justice Clerk delivering the opinion of the court with regard to the reliance which can be placed on such footage:

“In referring to the CCTV footage … the court should not be understood as indicating that the footage is to be considered equivalent to the testimony of one eye witness … 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.”

The camera doesn’t lie, so to speak. Or does it?

With an estimated one in four drivers now utilising ‘dash-cams’ (Aviva, July 2018), one might expect the Crown to request and lead with any seized footage in proof, particularly in relation to road traffic offences, of allegations of dangerous or careless driving where the Crown does not require to prove criminal intent. Such evidence should, however, be treated with caution.

Unlike city centre CCTV, which might clearly capture ne’er-do-wells committing any number of offences - often from multiple positions and various angles - ‘dash-cam’ footage by its very nature may not be reflective of whether an accused’s driving falls below the standard expected of a competent and careful driver.

Such footage is rarely from the driver’s perspective; may not provide an accurate impression of speed or acceleration; may only capture fragments of an evolving situation; and other external factors such as road conditions, hazards or the actions of other road users may be entirely out of shot. The footage may not be comprehensive so as to be wholly reliable.

The admissibility of this footage, therefore, requires to be challenged where provenance is in dispute and its contents carefully tested, with expert assessment/enhancement where required, in order to properly test the Crown case. Expert advice at an early juncture is essential.

David Cairns is an associate at BTO LLP