Jacqueline Shuttleton v. Procurator Fiscal, Glasgow [2019] HCJAC 12

Reference on a point of law from the Sheriff Appeal Court:- The appellant was convicted after trial of a breach of section 3 of the Road Traffic Act 1988. Leave to appeal against conviction was granted in relation to whether the justice erred in admitting certain CCTV evidence. At trial objection was taken to the admission of the CCTV evidence, on the basis that the provenance of the video was not proved. The justice was satisfied that the provenance had been established. In addition, the justice considered that the footage thereby became real evidence which was available as proof of fact following Gubinas v HMA 2017 SCCR 463. On 31 August 2018, the Sheriff Appeal Court issued an opinion that an issue of novelty and complexity arose:- “...whether the evidence of the two police officers who attended after the collision and viewed the CCTV footage could amount to corroboration or whether it is no more than descriptive of a piece of (uncorroborated) real evidence.” The SAC considered that Gubinas suggests that where the provenance of CCTV evidence is properly established then a corroborated case can be established on the basis of a single piece of CCTV evidence. The three questions posed in the reference were:- (1) where the actus reus of an offence libelled is captured on CCTV footage, and the only evidence of the actus reus of that offence is said CCTV footage, can the evidence of two police officers who attended after the incident and viewed the CCTV footage amount to corroboration or is it no more than descriptive of a piece of real evidence?; (2) where the actus reus of an offence is captured on CCTV footage, the only evidence of the actus reus is said CCTV footage, and the provenance of the CCTV footage is established, can said CCTV footage alone constitute sufficient evidence of the actus reus of the offence?; and (3) where the actus reus of an offence is captured on CCTV footage, the only evidence of the actus reus of the offence libelled is said CCTV footage, and the provenance of the CCTV footage is thus established, is the fact finder entitled to find the actus reus established based on the fact finder’s viewing of the CCTV footage? Here it was submitted on behalf of the appellant that Gubinas had not removed the central requirement of corroboration for the commission of the crime and the identification of the perpetrator and that the case should not be interpreted as meaning one source of evidence can prove the commission and identification of an accused. Paragraphs 70 and 74 of the Gubinas opinion were relied upon to support the contention that a cross check of the CCTV evidence was still required. In relation to the three questions posed it was submitted on behalf of the appellant that:- (1) no - the evidence of the police officers was descriptive only; (2) no, two sources were required as the CCTV footage was not “self-corroborating”; and (3) no, the fact finder was still viewing one source of evidence and another source of evidence was required. On behalf of the Crown it was submitted that where the provenance of the CCTV evidence was established by corroborated evidence, agreement or certification the content was then available as proof of fact, including commission of the offence and identification. It was submitted that question 1 should be answered in the negative and that the evidence of the police officers in relation to the footage was descriptive only and not corroborative and the second and third questions should be answered in the affirmative. Here the court considered the reference. Whilst CCTV is often described as a “silent witness” that does not mean the footage is to be considered the same as the testimony of one eye witness, rather as real evidence which itself is sufficient proof of the inferences of fact to be drawn from a viewing of the footage. The key issue is that the footage constitutes real evidence described in Gubinas as “things, which are examined by the court as a means of proof, and which ‘upon proper identification, becomes, of itself evidence’. Examples of weapons, handwriting, personal appearances, casts of footprints are given.” Gubinas made clear that a fact finder may rely on CCTV footage as proof of the commission of the offence or that the accused committed it. The court went on to state that it is the provenance of the real evidence, not its substance, which must be proved by corroborated evidence and once provenance is properly established it can itself be sufficient for proof of the acteus reus of an event. The court answered the 3 questions posed in the following way:- “(1) No. Any evidence of the police officers relating to the contents of the footage, as viewed by them, would be descriptive only; (2) Yes, in the circumstances identified in the question the footage would constitute sufficient evidence of the actus reus; and (3) Yes, in these circumstances the fact finder would be entitled to find the actus reus established from his own viewing of the footage.”