Man convicted of purchasing illegal firearm in Glasgow loses appeal based on insufficient evidence of identification

About this case:

• Citation:
  [2024] HCJAC 1
• Judgment:
  External link
• Court:
  Appeal Court of the High Court of Justiciary
• Judge:
  Lord Doherty

Francis Mooney argued that the trial judge was wrong to repel a submission of no case to answer, as while there was evidence that the offence had been committed, there was not sufficient evidence to identify him as the perpetrator. Additionally, she had misdirected the jury as to the use of other evidence that was said to corroborate the evidence of the police constable who had arrested him.

The appeal was heard by Lady Dorrian, the Lord Justice Clerk, alongside Lord Doherty and Lord Boyd of Duncansby. GR Brown, solicitor advocate, appeared for the appellant and J Keenan, solicitor advocate, for the Crown.

Identification not challenged

The details of the charge were that, on 24 September 2021 on Dunn Street in Glasgow, the appellant purchased a firearm without holding a firearms certificate, the barrels of which had been shortened to less than 60.96 centimetres. On the evening in question, plainclothes officers had taken up position at the address having received information that led them to believe a firearm was about to be transferred.

Evidence given by Constable Dinnen, one of four police officers who attended the address, stated that the appellant and a companion, Stephen Kyle, arrived in a taxi and, after a short phone call, were greeted by another man, Derek Eadie, who passed a bag containing the firearm and ammunition to the appellant. He and a sergeant exited their car to apprehend the men, although Eadie managed to escape.

CCTV footage also showed the events described by Constable Dinnen. However, as it was filmed at night and of low quality, it was common ground that the footage alone could not enable the jury to identify the appellant as the perpetrator. Constable Dinnen’s identification of the appellant was not challenged in cross-examination, nor was the evidence of another constable, Constable Paterson, that the appellant was one of two men who remained behind after Eadie left.

At trial, the appellant did not lodge a notice of incrimination, nor was it suggested on his behalf that Mr Kyle had committed the offence. In her directions to the jury, the trial judge said that the Crown relied upon the CCTV footage insofar as it could provide support for Constable Dinnen’s evidence, and it could be used to show the appellant as the man using his phone before Eadie arrived.

It was submitted that the evidence of Constable Paterson was insufficient to corroborate Constable Dinnen’s identification of the appellant, as it did not identify the appellant as the perpetrator. Further, the trial judge misdirected the jury when she directed them that the CCTV could also corroborate Constable Dinnen’s evidence.

Combined effect

Lord Doherty, delivering the opinion of the court, said of the first ground of appeal: “We are mindful that in assessing sufficiency and whether evidence is capable of affording corroboration the correct approach is to take the evidence at its highest, and for circumstantial evidence to be interpreted in the way most favourable to the Crown; and that where a witness makes a clear and unequivocal identification little is needed to corroborate that evidence.”

He continued: “Taking the combination of Constable Paterson’s evidence and the CCTV footage at its highest, as we require to, we are in no doubt that it was capable of providing corroboration of Constable Dinnen’s identification of the appellant. It was capable of providing support for, or confirmation of, or fitting with Constable Dinnen’s identification. It put the appellant at the scene as one of only two men with Eadie when the bag was handed over.”

Turning to the trial judge’s directions, Lord Doherty added: “Mr Brown accepted, correctly, that, leaving aside the final two sentences, the directions contained no misdirection. We are also satisfied that, read in context, the final two sentences were not a misdirection.”

He concluded: “The footage showed that the man wearing a gilet and cap who spoke on his phone and sat on the rail was the man who took the bag, and that the driver of the first police car was the person who took him to the ground. The combined effect of Constable Paterson’s evidence and the footage was capable of providing support for, or confirmation of, and it fitted with, Constable Dinnen’s identification evidence.”

The appeal against conviction was therefore refused.