Gary Orr v. Her Majesty’s Advocate [2021] HCJAC 42

Note of appeal against conviction:- On 3 March 2021, following a trial at Airdrie Sheriff Court, the appellant was convicted on indictment of a charge of assault to severe injury and to the danger to life in relation to repeatedly striking Patrick Clarke on the head and body with a knife. The appellant was also convicted of a charge of being in possession of an offensive weapon. The appellant also pled guilty to a charge of failing to appear at a calling of the indictment at court. The appellant was sentenced to a cumulo sentence of 30 months imprisonment in relation to the assault and offensive weapon charge of which 3 months was attributable to bail aggravations. The appellant was admonished in relation to the failure to appear charge. The appellant appealed against his conviction it being contended that the sheriff ought to have directed the jury to disregard evidence of identification by two police officer given that they had never seen the appellant in person. The argument altered during the appeal to challenge to what were said to be confusing and conflicting directions by the sheriff on the issue of identification and that the sheriff ought to have decided that due to the quality of the CCTV images and ought to have directed the jury that no identification from the images was possible. It was submitted that:- (1) the identification of the appellant by the two police officers had been “ flawed and unfair” as they had not seen the appellant; (2) the sheriff had given confusing and conflicting directions in that the jury had been told they could make up their own minds about the CCTV images but also that they had to accept the identification evidence of the two police officers in order to convict; and (3) the quality of the CCTV images was such that the sheriff ought to have taken the view that no identification could have been made from them. On behalf of the Crown it was submitted that the written Case and Argument and the oral submissions made at the appeal hearing differed from the ground for which leave had been granted. It was submitted that no objection to the admissibility of the police identification evidence had been taken in advance, or indeed during, the trial. It was further submitted that whilst the sheriff may have misdirected the jury in telling them that they had to accept the evidence of the two police officers that misdirection had been in favour of the appellant and no miscarriage of justice arose. Here the appeal was refused. The court considered that the appeal related to the quality of the evidence of identification and not about any alleged misdirection by the sheriff. The court noted there had been no objection to the admissibility of the police identification evidence. Furthermore, the court considered that the images shown were sufficiently clear to allow identification by a jury of the appellant. In relation to the sheriff’s directions the court observed that the jury did not have to be satisfied that the two police officers had correctly identified the appellant as the jury could have made up their own minds about whether the appellant was shown in the images and if they did then inevitably they would accept the police officers also identified the appellant. The court did not consider there had been a misdirection but if there was it was in favour of the appellant and could not have resulted in a miscarriage of justice.