Court lays down rules on dock ID
10 Oct 07
No rule that witness must always be asked to identify accused directly, say appeal judges
There is no general rule of law requiring the Crown to lead visual identification evidence from a witness who names the accused as the perpetrator of a crime, the criminal appeal court has ruled.
By a 2-1 majority, the appeal judges refused an appeal by Michael Murphy, convicted of 10 out of 14 charges he faced relating to assault and abusive behaviour against boys in his care in the 1960s in the then St Ninian's List D School, Gartmore Estate, Stirlingshire.
The accused, then known as Brother Benedict and a member of the de la Salle Order, was a welfare officer at the approved school. The charges of which he was found guilty, in 2003 at the High Court in Edinburgh, included whipping the boys, all aged under 14, with knotted leather laces, force-feeding them, forcing them to eat their own vomit, punching and kicking them, forcing them into cold showers, and making them taking hold of metal rods and administering electric shocks. He was sentenced to a total of two years in prison.
Of the nine boys involved, only four identified Murphy in court. After two of the others wrongly identified his co-accused, the Crown simply asked the other complainers to identify Murphy by his religious name or a nickname, leading evidence from other witnesses that he was the man so named. Murphy argued that the latter method of identification was insufficient, incompetent as not being the best evidence available and that the jury had been misdirected.
Murphy's counsel, Ronald Clancy QC, argued that the general rule was the the Crown should attempt a dock identification, and only if that failed, look for alternatives. In this case the best evidence was dock identification, and the Crown could not get round the mis-identification by some of the complainers. In any event in the circumstances of this case the substitute evidence was insufficient.
"Best evidence"
Lord Osborne, delivering the leading opinion, said the point in dispute was not a proper application of the "best evidence" rule. The evidence led, whether direct or indirect on the question of identification, was primary evidence, and the best evidence rule was directed against leading secondary evidence - such as hearsay, or copy documents instead of originals.
The rule argued for, he continued, could not be operated in practice. "Over many years, prosecutors have not in fact observed any such rule. Rather, they have exercised their discretion as to whether they would seek to elicit evidence of visual identification from a particular witness, in the light of the whole circumstances known to them. That I regard as a perfectly proper approach."
He added: "How the Crown goes about proving that essential feature of a case must be a matter for the exercise of its discretion, in the light of the evidence which may be available to it in the circumstances of any particular case, about which the court will almost certainly have no knowledge. It appears to me that the rule contended for on behalf of the appellant would undermine the exercise of that proper discretion."
In a supporting opinion, Lord Macfadyen said that while there was a long recognised general rule of practice that a witness speaking to the commission of a crime should be asked to make a dock identification, that was not a rule of law. It followed that "failure to follow the general rule does not affect the admissibility of other evidence tending to establish that the accused was the perpetrator of the crime".
Dissenting, Lord Marnoch said that previous cases established that dock identification should be used in all but exceptional situations, which was contrary to the Crown's position in this case. Here there were "obvious risks in relying on evidence of identification by name even where bolstered by description of appearance or position", and since this affected, directly or indirectly, all the charges on which the accused was convicted, the appeal should be allowed.
The court's decision can be read at http://www.scotcourts.gov.uk/opinions/2007HCJAC57.html .