Mid-trial admission of CCTV evidence did not lead to miscarriage of justice in knife assault case, appeal court rules

Jamie Hyslop argued that the material did not meet the statutory test for admission as additional evidence and that the police and Crown failed in their disclosure duties, but the High Court of Justiciary Appeal Court rejected the appellant’s arguments.

CCTV evidence

The Lord Justice General, Lord Carloway, sitting with Lord Menzies and Lord Brodie, heard that the appellant was sentenced to three years and four months imprisonment after being convicted of assault to severe injury and permanent disfigurement and attempting to pervert the course of justice by arranging with a co-accused to set up a false alibi.

The court was told that the principal charge involved the complainer being chased by a group of men who struck with knives or other similar instruments.

There was evidence from the complainer that it was the appellant, whom he had identified at a VIPER parade and knew already anyway, who had struck him with a meat cleaver.

Corroboration came from the appellant’s own statement in a phone call from prison to the fifth accused, in which he said: “I will not be on the CCTV. I know for a fact that I am no ‘n’ I had my hood up ‘n’ all that anyway.”

The appellant’s defence was one of mistaken identity, despite the content of the telephone conversation, but the sheriff considered that the phone call amounted to an admission that the appellant had been at the scene.

‘Interests of justice’

Several days into the trial, a police officer gave evidence tag she and a reporting officer had viewed a CCTV recording taken from cameras outside a shop near the locus, which showed four or five people running towards the locus and back again, all at the relevant time, although it was not possible to identify them because it was dark.

Prior to the reporting officer giving evidence, the procurator fiscal depute asked her what happened to the recording, and was told that it had been transferred on to disc and lodged with the police production keeper, but it was never forwarded to the Crown.

There was no clear explanation as to why the recording, which had been referred to in the summary of the evidence, had not previously been disclosed to the Crown and thence to the defence, other than it had been simply “overlooked”.

The fiscal recovered the disc and it was available in court when the reporting officer gave evidence to the same affect as her colleague.

Motions were then made by several of the accused, not that the recordings should not be introduced, but to desert the trial.

The sheriff refused the motions and the fiscal moved to lodge the recording, in terms of section 268 of the Criminal Procedure (Scotland) Act 1995, on the grounds that it was prima facie material evidence which had not been disclosed to the Crown or defence and that it was in the “interests of justice” to do so.

The sheriff allowed the footage to be introduced and the appellant was ultimately convicted.

‘Miscarriage of justice’

However, it was submitted on appeal that the sheriff erred in allowing the Crown motion for the admission of the footage, and that the failure of the police and the Crown to disclose it amounted to a “miscarriage of justice”.

It was argued that the footage did no satisfy the statutory test, as it had not been established that it had neither been available, nor could it reasonably have been made available, at the start of the trial - it could have been found and lodged.

It was also submitted that it had not been established that its materiality could not reasonably have been foreseen, as its materiality was clear, given that it showed events around the time of the incident.

The recording had been unhelpful for the appellant, as it showed the presence of a number of people with their hoods up - a matter of “great significance” in relation to the prison phone call.

However, the advocate depute argued that there had been no failure to disclose as the Crown had not been aware of the existence of the recording until the police officers were giving evidence.

The appeal judges ruled that the sheriff had not erred in her decision.

‘Sheriff’s discretion’

Delivering the opinion of the court, the Lord Justice General said: “It is accepted that the recording was prima facie material, at least at the point when the motion to introduce it was made. It was conceded that the recording could reasonably have been made available at the commencement of the trial. It was referred to in the summary of the evidence. Had the Crown asked the reporting officer, it would have been located and could have been lodged.”

Its materiality, however, could not have been foreseen by the crown.

Lord Carloway continued: “The recording was described in the summary of the evidence (and presumably also the police statements) as not showing the events at the locus and not revealing the identity of the accused as attackers. It did not obviously contain material relevant to the case.

“The issue was not whether the complainer had been chased and attacked, but whether the individual accused had been involved.

“In these circumstances, since the terms of section 268 had been satisfied, it was a matter for the discretion of the sheriff to decide whether the recording should be admitted in the interests of justice or whether its admission would be unfair.

“Given its eventual materiality, it was undoubtedly in the interests of justice that the recording should have been played. Any potential unfairness could have been met by recalling any witness who had already testified and whose evidence differed from that which was subsequently revealed by the recording. No motion to recall any such witness was made.

“The court is not satisfied that the sheriff erred in her decision.”

“In any event,” he added, “it is impossible to see how a miscarriage of justice can be said to have occurred. The content of the recording had already been described, without objection and apparently accurately, in the course of the trial. In particular, from the appellant’s point of view, in relation to the prison phone call, there had been evidence that there was CCTV at the locus and that the attackers were wearing hoods.”