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Full bench restates law on video evidence

9 August 2017

Video evidence is "real evidence" which can b e used by a jury to establish fact, whetever the other testimony, a bench of five judges in the High Court has ruled.

In two appeals brought to a full bench to resolve conflicting earlier decisions as to how video evidence may be used, the court (Lord Justice General Carloway, Lord Justice Clerk Lady Dorrian, Lord Menzies, Lord Brodie and Lord Turnbull) said the standard form of direction to a jury required to be revised. However both appeals were refused as there had been no misdirection leading to a miscarriage of justice.

In the appeal by Justinas Gubinas and Nerijus Radavicius, the evidence was in the form of mobile phone footage of an alleged rape of a woman who was then intoxicated and incapable of consenting. The issue was whether the fottage showed gestures by the complainer indicative of consent. The trial judge directed the jury to form their own views about what the footage depicted and what inferences they could draw from it. On appeal it was argued that this was wrong and that the jury's view could not be substituted for that of witnesses who spoke to the video.

The second appeal was by Anthony Gannon, against his conviciton of robbing a shop. The jury, who had asked to see a close-up of the knife shown in CCTV footage as wielded by the assailant, had been directed to form a view as to whether the witnesses' interpretation of what the images showed was correct, and if it supported proof of the crime charged. It was argued that the jury appeared to have adopted an investigatory role, despite having been told not to do this, and the sheriff had failed to give directions to counter this.

After reviewing the case law not only from Scotland but from England & Wales, Ireland, Canada, Australia, New Zealand and South Africa, the Lord Justice General, delivering the opinion of the court, said it would always be necessary to prove that the recording related to the paticular event. Once that had been established, the evidence became "real evidence", or "evidence derived from things". That meant it could be examined by the judge or jury with a view to drawing inferences from what could be observed on examination. It might be advantageous for witnesses who were present to comment on what the images showed, but "None of this detracts from the fundamental position that, once the provenance of the images is proved, 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."

The same principles applied in relation to proof of identity. "It follows that, in an appropriate case, a fact finder, including jury or sheriff, will be entitled to form their own view on whether or not an image is that of an accused."

Witnesses who were at the scene could be asked about what was shown in the images, but a witness who was not present should not be asked for an impression or interpretation of that.

The court added that the corroboration requirement would be satisfied if, as with a photograph or fingerprint, the provenance of a video was spoken to by two witnesses. The court also suggested a revised form of jury direction in cases involving video evidence.

Click here to view the principal opinion of the court; and here for the opinion in the Gannon appeal.

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