GUBINAS & Anor v HER MAJESTY'S ADVOCATE, NOTE OF APPEAL AGAINST CONVICTION BY [2017] ScotHC HCJAC

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	Scottish High Court of Justiciary Decisons
You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> GUBINAS & Anor v HER MAJESTY'S ADVOCATE, NOTE OF APPEAL AGAINST CONVICTION BY [2017] ScotHC HCJAC_59 (08 August 2017)) URL: http://www.bailii.org/scot/cases/ScotHC/2017/HCJAC_59.html Cite as: 2018 JC 45, 2017 SLT 1017, 2017 SCCR 463, [2017] HCJAC 59, 2017 GWD 26-431, 2017 SCL 828, [2017] ScotHC HCJAC_59

Appellant (Gubinas): McConnachie QC, Findlater; Gray & Gray, Peterhead

Appellant (Radavicius): Duguid QC, Hughes; Faculty Services Ltd (for Adam & Flowerdew,

[1] On 29 April 2016, at the High Court at Aberdeen, the appellants were convicted of

sexually assaulting and repeatedly raping RD on 1 November 2014, at a farmhouse in

Fraserburgh, contrary to sections 1 and 3 of the Sexual Offences (Scotland) Act 2009:

“whilst acting together, whilst she was intoxicated and incapable of giving or

Part of the libel was that the appellants had recorded the event on mobile phones.

[2] On 9 May 2017, the court, having rejected grounds of appeal based upon

insufficiency of evidence and misdirections on mixed statements (2017 SLT 663), remitted

the appeal to a bench of five judges on a ground which maintained that the trial judge had

misdirected the jury on the manner in which they could approach the video images taken on

the mobiles. The appeal therefore raises the issue of the extent to which a fact finder,

including jury or sheriff, can decide for themselves what the images depict. This in turn

requires consideration of the form which directions to a jury should take. These are matters

[3] The complainer had been in the same nightclub as the appellants. According to her

testimony, she had left in a car with the second appellant, thinking that he was taking her to

a party in Fraserburgh. She was already heavily intoxicated, as could be seen from CCTV

images taken of the nightclub car park. Two other men got into the car. The complainer

was driven to a farmhouse, where both appellants were living. This was in a remote

location, from which she would have been unable to walk home. She was forced to drink

[4] The complainer described herself as overwhelmed. She was forced and coerced into

having oral and vaginal sex with the second appellant and then the first appellant. These

events were in part shown in images taken by the appellants’ mobile phones. It was

accepted by the complainer that the mobile images might appear to show consensual sexual

activity. However, she said, “appearances can be deceptive”. The images showed her in a

state of intoxication; such that she was deprived of her ability to consent. At one point in the

[5] The complainer spoke about bruising to the back of her neck, lower back and

buttocks. She had vaginal injuries, although these were, according to the medical evidence,

“not necessarily” consistent with rape. There was evidence of distress on her return home.

[6] The mobile images were shown to a police officer, namely DC WR, during the trial.

WR was asked to express a view on whether they were consistent with consensual sex

taking place (see 2017 SLT 663 para [5]; and trial judge’s charge (infra)).

[7] In his interview by the police, the first appellant admitted having oral and vaginal

sexual intercourse with the complainer and videoing her having sex with the second

appellant. All sexual activity had been consensual. It had been instigated by the

complainer. She had made a beckoning gesture to him. The first appellant did not testify.

However, according to his counsel, this gesture could be seen in the recording taken by the

second appellant. The second appellant did not testify. In his interview, he denied rape.

[8] Having reminded the jury of the conflicting stances taken by the Crown and the

appellants on what the mobile recordings had shown, the trial judge directed them as

“You are here as judges ... and not as witnesses so you form a judgement about what

the footage shows, just as you would form a judgement about eye witnesses’

descriptions of what has happened otherwise. ... just because you have seen a record

of the events made on the phone at the time or through the CCTV cameras at [the

nightclub], you do not somehow become witnesses to these events yourselves. You

stand back from what is depicted on the screen so far as this video evidence and

CCTV footage is concerned, and you form your own conclusions about what it

... [W]e have had witnesses who have given in their evidence descriptions of

what they say the phone film footage shows. [RD] did that. DC [WR] was asked for

her views about what she thought it showed. You have to determine if their

interpretation of what the footage shows as happening is correct. You have to decide

what the footage shows and if it supports proof of the crime charged.

... [Y]ou can take into account what witnesses have said it showed, but you

are not bound by their views. You must form your own views about what this video

footage depicts and what inferences you can draw from it, such as whether or not the

You’ve heard conflicting interpretations about what the video evidence

shows. In assessing that evidence, you’ll have to decide which view you prefer just

as you’ll decide between conflicting accounts by eye witnesses in any other aspects of

... [A]s I have been saying, in general you could form your own view about

what the video evidence depicts, but the identification of a person depicted in the

video or CCTV footage must come from a witness and, in that situation, you would

have to decide if the witness’s identification of the person said to be participating in

And so far as reasonable belief is concerned, then, again, the starting point for

you is RD’s evidence. You’ll have to take into account what she said about the video

footage taken by the phone depicts. You’ll remember her comment ‘appearances can

be deceptive’. Her position was that what we see on the video is a person not

knowing what she’s doing, so you’ll have to take that into account in this regard.”

[9] After the jury had been secluded, they requested a further viewing of the video;

notably that part which allegedly showed a gesture. This was permitted in the court room,

[10] Under reference to Bowie v Tudhope 1986 SCCR 205, Steele v HM Advocate 1992 JC 1,

Gray v HM Advocate 1999 SCCR 24, Donnelly v HM Advocate 2000 SCCR 861, Robertson v HM

Advocate 2007 SLT 459 and HM Advocate v Ronald (No. 2) 2008 SCL 176, the first appellant

maintained that, although the law was not clear, certain broad principles could be

understood. Finders of fact were not entitled to make identifications of accused persons

simply by viewing video images. There had to be testimony from witnesses. Apart from

that, fact finders could form a view of what the images showed. Because jurors were not

witnesses, that view could not be translated into evidence. Even relatively innocuous parts

of what was shown were not evidence, but were inextricably bound to, and defined by, the

[11] Real evidence required to be spoken to (Hogg v Clark 1959 JC 7, Patterson v Howdle

1999 JC 56). This was not the same in other jurisdictions, where the fact finders could draw

their own conclusions from what could be seen (eg Bryant: Law of Evidence in Canada (3rd ed)

paras 2.13 et seq; Hoffman: South African Law of Evidence (2nd ed) 285-6; May Criminal Evidence

(6th ed) para 2-33). The images spoke for themselves and should be shown without

comment, since it was for the jury to decide what they revealed (R v Dodson [1984] 1 WLR

971; R v Downey [1995] 1 Cr App R 547). The approach in England had been codified in

Attorney General’s Reference (No. 2 of 2002) [2003] 1 Cr App R 21 (p 321), but this was far

removed from Scots law because of the different approach to real evidence.

[12] The Australian position (Smith v R [2001] 206 CLR 650) was not to permit testimony

to be given by the police about what a video recording showed, since the jury could do that

themselves. In Canada (R v Nikolovski [1996] 3 SCR 1197) a video recording was regarded as

real evidence and the court could decide what it showed. In New Zealand (R v Howe

[1982] 1 NZLR 618), a commentary by the police was regarded as a legitimate aid for the jury.

[13] In this case, the jury had asked to view the mobile images, notably the gesture part,

as part of their deliberations. The recording was of importance. The trial judge’s directions

had been confusing and, in so far as they permitted the jury to decide for themselves what

was shown, wrong in law. A jury could not be invited to consider a production or a label

without relative testimony. Although the jury could use what they made of the images in

assessing that testimony, their views could not be used in substitution for those of the

witnesses. Where the jury’s view differed from the testimony, that view required to be set

[14] If fact finders were entitled to consider what video images showed, that would

amount to one source of evidence. At present, a number of witnesses could look at the

images and, if their evidence coincided, this would provide corroborative testimony. If the

images were “self proving”, that would be a change in the law which ought to be considered

by the Scottish Law Commission. In terms of section 283 of the Criminal Procedure

(Scotland) Act 1995, the time and place of CCTV images could be certified. The images

would then enable the fact finder to determine the essential facts, without supporting

testimony which could be tested by cross-examination. In that event, parties ought to be

allowed to object to the images as lacking a sufficient baseline quality to allow such a

[15] The basis of the jury’s verdict would not be known if images were self proving. It

would not be possible to ascertain the reason for the jury identifying the accused as the

perpetrator. The jury could not be cross-examined. Section 97D of the 1995 Act, which

provided that a judge could not sustain a submission that no reasonable jury could convict

on the basis of the evidence led, would restrict the circumstances in which a “no case to

[16] There were three possible outcomes. First, the law as explained in Steele v HM

Advocate (supra) was correct and there was a discretion vested in the trial judge to direct the

jury that they were bound by the descriptions provided in testimony. Secondly, the first

appellant’s submissions were correct and the jury could only base their verdict on such

testimony. In either event, the appeal had to be sustained. Thirdly, the jury did not need to

pay any heed to testimony, or to choose between conflicting accounts given by the

witnesses, as to what video images showed. At present, the model jury directions, which

had been adopted by the trial judge, encompassed all three possibilities. They constituted a

[17] The second appellant contended that the law was soundly set out in Steele v HM

Advocate (supra) and had been followed in Donnelly v HM Advocate (supra) and HM Advocate

v Ronald (No. 2) (supra)). There was no general principle applying to video images.

However, a jury could only proceed on the evidence. In so far as essentials such as place,

time, identity and the crime were concerned, a jury could not speculate upon matters which

had not been the subject of testimony. In this case the correct interpretation of the mobile

images had been disputed. The trial judge’s directions were conflicting, contradictory and,

in part, erroneous. The erroneous part was where the jury had been told that they could

form their own views on what the images demonstrated. Such a direction should not be

given where: (a) identification was an issue; (b) there was a need for expertise to understand

what was shown; or (c) there was a substantial dispute in the testimony about what was

[18] The approach in England and Wales (Attorney General’s Reference (No. 2 of 2002)

(supra); R v Downey (supra); and R v Shanmugarajah [2015] 2 Cr App R 14 (p 215)) was

substantially different. Were such an approach to be adopted in Scotland, substantial

safeguards, along the lines of the direction given in eye-witness identification cases (R v

[19] Any alteration of the law, as set out in Steele, would change some fundamental

tenets; notably that jurors were judges and not witnesses. If the jury were entitled to

determine what video images showed for themselves, no “no case to answer” submission

[20] The written Case and Argument for the Crown set out what were said to be the

principles in Steele v HM Advocate (supra), viz.: a jury required to proceed only on the

evidence; a judge could direct the jury that they could be guided only by testimony of what

video images showed; and it was undesirable to replay recordings when testimony could

highlight the points shown more effectively. The purpose of leading witnesses to speak to

the content of video images was: to prove their provenance, the identity of participants and

what had occurred; to direct the jury to relevant parts; and to prevent the jury from

speculating. Otherwise, if no expertise was required, the jury could assess the content of a

[21] Contrary dicta could be found in Gray v HM Advocate (supra) but, as observed in Hunt

v Aitken (supra), Gray had proceeded upon a concession and was of little value as a

precedent. Donnelly v HM Advocate (supra) was about identification and thus

distinguishable. There could be circumstances in which a judge should direct a jury that

they could not assess the content of video images, such as where that would involve

speculation, but generally a jury was free to assess content. In Singh v HM Advocate 2013

SCCR 337, leave to add a new ground of appeal, which alleged a misdirection to the effect

that a jury could reject testimony on the basis of what they thought a video showed, was

refused. The law was clear. A jury was not entitled to make a comparison between video

images and the accused as he or she appeared in court. The jury had to be guided by the

testimony of witnesses who were familiar with the accused (Bowie v Tudhope 1986 SCCR 205;

[22] A warning in relation to the dangers of identification evidence was required (McAvoy

v HM Advocate 1991 JC 16 at 26). Identification had not been a live issue in this case. The

mobile images were shown as evidence of the crime. No expertise was required to

understand what the images showed. The jury had been entitled to make up their own

minds. In any event, no miscarriage of justice had occurred. The jury had been directed that

they could only convict if they accepted the complainer as credible and reliable.

[23] The Case and Argument did not seek to advance any propositions in relation to the

development of the law or to analyse any of the Commonwealth cases upon which the court

sought guidance. However, in oral submission, the advocate depute acknowledged the

direction of travel in the cases from England. In Clare and Peach [1995] 2 Cr App R 333,

Taylor LCJ (at 339) had made reference to the need for “evidential practice to evolve to

accommodate unfamiliar material.” Ultimately, the advocate depute, in response to some

probing by the court, submitted that a jury should be entitled to make up their own minds

on what video images showed, subject to a direction not to speculate in that exercise. This

included the identification of participants. There ought to be no distinction between

identifying persons seen in the images and determining what events were shown.

[24] In delivering the earlier Opinion of the Court (supra), the Lord Justice Clerk observed

(at para [26]) that the circumstances in which a jury may examine for themselves the content

[25] Twenty five years ago, in Steele v HM Advocate 1992 JC 1, there was evidence of

surveillance video recordings; the nature or relevance of which is not clear from the Opinion

“... you cannot make, draw any conclusions yourselves from your viewing of the

video tape and you must be guided by the evidence of the witnesses as to what they

believe that they saw on the tape ... [T]his is purely a question of whether you accept

the evidence of these witnesses or not and ... where there may be ... a conflict of

evidence as to what they saw, it is really a matter for you to decide which evidence

you accept and which evidence you don’t accept, but you are not entitled ... to

become witnesses in the case because ... you haven’t been put on oath”.

The argument for the appellant was that the video was the best evidence and the jury were

entitled to form their own view as to what it showed. The Crown had argued that there had

to be testimony from witnesses. The jury’s function was limited to whether or not to believe

[26] The court approached the matter as one of practicality rather than principle. The

Lord Justice General (Hope), delivering the Opinion of the Court, referred to the “rule” that

the jury must proceed “only on the evidence” and continued (at 5):

“for this reason evidence will almost always be required to speak to such essential

details as place and time and the identity of persons or things shown on the

He placed reliance on the view expressed in Hopes and Lavery v HM Advocate 1960 JC 104

(LJG (Clyde) at 111) about the undesirability of repeated replays in the court or jury room.

Hopes and Lavery concerned a tape recorded (bugged) conversation which had been

“So it is likely to be of advantage for the witnesses to be asked to give their own

opinions as to what is being shown on the tape in order that the jury’s minds can be

directed to the relevant points while the tape is being played. But, except in cases

where some particular expertise is required to understand what is going on, the jury

are free to make up their own minds about what the tape reveals. It is not necessary

for them to be provided with a running commentary on every detail.”

The somewhat confusing conclusion was that the sheriff’s direction was not “accurate as a

statement of principle” even if it “may well have been appropriate”.

[28] In Gray v HM Advocate 1999 SCCR 24, the video recording of a robbery in an off-

licence was shown to witnesses who had not been present. They had identified the accused,

having seen him earlier in the day. The issue was whether the trial judge had erred in

refusing a request from the jury to see the recording again during their deliberations. The

judge had wrongly held that this was incompetent, but, the court held, he had nevertheless

correctly refused the application because the “real issue” was the quality of the identification

evidence given by the witnesses rather than that of the video recording. The Lord Justice

General (Rodger), in delivering the Opinion of the Court said (at 26), that it was “common

ground” that the jury were not permitted to view the video and to decide for themselves

whether they could identify the appellant. The video could only be used to assist in the

[29] Donnelly v HM Advocate 2000 SCCR 861 concerned the murder of a woman in Central

Glasgow. She had been wearing a black jacket when she had met the appellant, who was

jacketless. The jacket was never recovered, but a photograph, which had been in it, had

been found in a loading bay in Bath Street. There were CCTV images at the relevant time of

a man wearing a black jacket walking from the locus along Bath Street. The accused had not

been identified from these images. However, the trial judge mentioned the images in his

charge as showing a young man in a dark jacket. The argument, which was sustained, was

that, if the jury had identified the appellant as the young man from their own assessment of

the images, and had held that he had been wearing the deceased’s jacket, that would have

been “a very serious matter for the appellant’s defence” (at 869).

[30] Lord Allanbridge, delivering the Opinion of the Court (at 871), endorsed the earlier

view expressed by the Lord Justice Clerk (Cullen) (at 867, following Gray) that the jury were

not entitled to decide for themselves whether they could identify the appellant from the

images. Under reference to the dictum in Steele (supra), he said (at 871):

“These observations support the view that a jury cannot decide for themselves the

The court held that it had been an error to have allowed the jury to speculate on the identity

[31] Robertson v HM Advocate 2007 SCCR 129 involved an assault in a bus shelter in

Falkirk town centre. The Crown had served certificates under section 283(1) of the Criminal

Procedure (Scotland) Act 1995. This permits an operator of a video surveillance system to

certify that images recorded on the system are of events at a particular place and time. The

certificate becomes sufficient evidence of these matters. The certificates were productions,

but no mention was made of them prior to the close of the Crown case. The images were not

shown to the complainer, who had identified the appellant as the red shirted man who had

attacked him. Police officers spoke to having obtained excerpts from the system which

showed the assault. They were able to speak to the locus and said that the images showed

the assault. They identified the appellant as the red shirted assailant. The court held that

the certificates were not evidence unless they were brought to the jury’s attention. The court

was of the view that this left the evidence “barely” sufficient, but that the jury had been

entitled to hold that the images did show the assault and were thus corroborative of the

[32] HM Advocate v Ronald (No. 2) 2008 SCL 176 involved, like the present case, video

images of sexual activity involving a complainer, taken by the accused on his mobile phone.

During the course of his interview, the police put to the appellant that, in the view of one

officer, the images showed that the complainer had been asleep or unconscious at the

relevant time, since there was no noise recorded. This prompted the appellant to admit that

the complainer had probably been asleep. It was argued that this admission had been

unfairly obtained, since the officer’s view would itself have been inadmissible. The judge at

first instance (Lord Hodge) repelled this objection. He was (at para [15]) not satisfied that

there is a rule of law that renders inadmissible evidence from a witness of his or her

understanding of what a video shows, even if what was shown addressed the principal

issue for the jury. In so doing, he relied on the comments in Steele v HM Advocate (supra) that

it was advantageous for witnesses to express their own opinions on what a tape showed.

[33] In Henry v HM Advocate 2012 SCCR 768, the appellant had taken an objection, as a

preliminary issue, to police officers, who had not known the appellant prior to his arrest,

testifying that he was the masked raider of a shop in Cumbernauld. Lord Pentland repelled

the objection, but in doing so (see para [10] 8) left open the possibility that such an objection

could be sustained if unfairness would inevitably arise from this type of evidence. Lord

Brodie, delivering the Opinion of the Court (at para [19]), agreed but qualified that by saying

that the “supposed inadequacy of the evidence would have to be capable of being very

clearly demonstrated” given that the assessment of the quality of the evidence was a matter

for the jury. It would only be in an “extreme” case that such an objection would be upheld.

[34] Finally, Singh v HM Advocate 2013 SCCR 337 involved a conviction of raping a

woman in a doorway in central Glasgow. The court refused to allow a Note of Appeal to be

amended by adding a new ground that the trial judge had erred in directing a jury that they

required both to consider the testimony about what CCTV images revealed and to form their

own judgment as to what was shown in the images. The complainer had testified to the

content of the images, the provenance of which had been agreed. The Lord Justice Clerk

(Carloway), delivering the Opinion of the Court, observed (at para [7]) that the judge had

correctly told the jury that it was the testimony of what the CCTV images showed that they

had to consider, albeit that, in carrying out that exercise, they were entitled to take into

[35] These solemn cases have resulted in a form of direction, currently enshrined in the

“You are here as judges, not as witnesses. You form a judgement about what this

video tape shows, just as you form a judgement about eye-witnesses’ descriptions of

what happened. Just because you have seen a record of events made on video at the

time they took place, you do not become witnesses to these events yourselves. You

stand apart from these events, and form your own conclusions about the video

These sentences may not be very helpful. The directions go on as follows:

‘Witnesses have told you about what this video shows concerning the commission of

the crime charged. You have to decide if their interpretation of what the tape shows

as happening is correct. You have to decide what the tape shows and if it supports

proof of the crime charged. You can take into account what they said it showed, but

you’re not bound by their views. (Where witnesses give conflicting interpretations

add) – Here you’ve heard conflicting interpretations on what the video shows.

You’ll have to decide which view you prefer, just as you’ll decide between

‘Very often because of the quality of the video, it would be difficult for you to

conclude that it was the accused who was participating in the events it showed. In

such cases you cannot make an identification yourselves of the accused from the

video. The identification of a person must come from a witness. You have to decide

if the witnesses’ identification of the accused as participating in the commission of

the crime is correct. You will want to consider whether the witnesses and the

accused were strangers to one another, how recently they had seen one another, how

well acquainted they were with each other or in general the circumstances under

‘Here the defence challenge the quality of the footage. It is said that it is so poor that

the witnesses’ evidence about identification/what the tape shows is happening is not

reliable. You have to consider the quality of the tape in assessing the reliability of

this evidence, but you cannot make your own independent judgement of who or

[36] As with the cases, there appear to be two strands or approaches being illustrated, but

which may be seen as pulling against each other. The first is that the jury can “form [their]

own conclusions about the video evidence”. That would entitle the jury to decide that the

video shows an event or a person not mentioned or even contradicted, by the testimony of

the witnesses. The second is that they can only use the video in gauging the acceptability of

[37] Two summary cases fall to be noticed. First, in Bowie v Tudhope 1986 SCCR 205, the

principle that a police officer, who knew the accused, was entitled to identify him having

viewed video images taken at the scene of a robbery, was (following R v Fowden & White

[1982] Crim LR 588) endorsed. It is of some note that the sheriff (but not the court), in

considering Fowden & White, observed (at 207) that reliance on the police identification was

legitimate as it prevented the jury from speculating about identity by comparing the images

[38] The second is the Scottish Criminal Cases Review Commission reference in Hunt v

Aitken 2008 SCCR 919. Despite his plea of self-defence, the appellant had been convicted of

assaulting a neighbour. The complainer’s wife had been driving down a disputed road,

which ran through the appellant’s garden. The complainer was at the locus. As he walked

back to his own house, the appellant punched him. The Crown had adduced the appellant’s

wife as a witness. She had said that she had looked out of a window and had seen the

complainer elbowing the appellant, and the appellant reacting to that by punching him. In

cross-examination, the appellant put a photograph to the appellant’s wife, upon which an

“x” had marked the locus of the punch. This was about 15 metres from the window.

Contrary to the appellant’s wife’s testimony that she had had a clear view, the Justice of the

Peace, upon examining the photograph, did not consider it possible that she could have seen

the incident as the view would have been obscured by outbuildings.

[39] The reference was on the basis that the JP had not been entitled to draw his own

conclusion from the photograph “in private”. In delivering the Opinion of the Court and

refusing the appeal, Lord Reed drew attention to the distinction between hearing or taking

evidence and assessing it. The submission for the appellant, based on Gray v HM Advocate

(supra), that the JP had turned himself into a witness was rejected. Lord Reed noted (at

para [16]) that, as Gray had proceeded upon a concession, it was of “little value as a

precedent”. The JP had, “rather like the jury in ... Gray” been entitled to look at the

photograph in order to test the witness’s testimony. Most important, the court endorsed the

sentence in Steele v HM Advocate (supra) that, except where expertise was needed, “the jury

are free to make up their own minds about what the tape reveals”.

[40] As is often the case, it is instructive to look at how this matter is approached in other

jurisdictions, especially those which use a jury in a similar way to that in Scotland.

[41] In England and Wales, the issue had been raised in a number of cases in the 1980s

and 1990s. R v Fowden & White (supra) has already been noticed. In R v Dodson [1984] 1

WLR 971, security cameras at the scene of a building society robbery had taken photographs

at half second intervals. These were developed and enlarged. They “plainly” showed the

robbers, who were originally from Guyana and Jamaica. One of them admitted to the police

that he was shown in the photographs. The other accepted that he had participated in the

robbery. The jury were provided with copies of the photographs. The jury were, the Court

of Appeal noted (Watkins LJ at 975), able to compare them both to the accused in court over

the 12 days of trial and to photographs of the accused at the time of their arrests. The

appellants’ argument was that this was worse than dock identification. Foreshadowing the

first appellant’s submissions, it was said that the jurors could not be cross-examined and it

would not be possible to tell what the basis for their verdicts might be. The court was

content (at 978-979) that the jury could carry out this comparison since it involved no special

training or expertise. The jurors were doing no more than an average person did in

domestic, social or other situations. They would, however, require to be warned of the

relevant perils, notably those arising from the quality of the photographs.

[42] Ten years later, in R v Downey [1994] 1 Cr App R 547, a still from a video recording of

a stocking masked petrol station robber was shown to the jury. The jury were directed that

they could compare the still with a photograph of the accused taken at the time of his arrest

and with his appearance in court. The complaint on appeal concerned the absence of a

direction on the need for a special warning, as had been given in R v Dodson (supra).

However, the Court of Appeal (Evans LJ at 555) distinguished the situation from that where

a witness identified a person based on his recognition of the accused as the person he had

seen at the time, since experience demonstrated fallibility in that regard. The same principle

applied, the court said, to the need for corroboration (at that time) in sexual offence cases.

“In both kinds of situations, the jury is cautioned against accepting too readily the

evidence of a witness whom they have heard. Inviting the jury to consider whether

the person shown in a photograph is the defendant who has appeared before them is

Any difficulties, he added (at 556), such as the quality of the photograph, would be obvious

[43] The authorities were reviewed by the Court of Appeal in Attorney General’s Reference

(No. 2 of 2002) [2003] 1 Cr App R 21 (p 321). This prosecution had involved police officers

identifying rioters from video film. One officer had known the appellant, but the trial judge

had ruled his evidence to be inadmissible as he had no specific skills beyond those of the

jury, albeit that he had studied the film under controlled conditions. The subsequent ruling

was that there was then an insufficiency of evidence. The Court (Rose LJ, delivering the

“... there are at least four circumstances in which, subject to the judicial discretion to

exclude, evidence is admissible to show and, subject to appropriate directions in the

summing-up, a jury can be invited to conclude, that the defendant committed the

offence on the basis of a photographic image from the scene of the crime:

(i) where the photographic image is sufficiently clear, the jury can

compare it with the defendant sitting in the dock [R v] Dodson [(supra)];

(ii) where a witness knows the defendant sufficiently well to recognise

him as the offender depicted in the photographic image, he can give evidence

([R v] Fowden ... [(supra)] ...; and this may be so even if the photographic

image was no longer available for the jury (Taylor v Chief Constable of Chester

(iii) where a witness who does not know the defendant spends time

viewing and analysing the photographic images from the scene, thereby

acquiring special knowledge that the jury does not have, he can give evidence

of identification based on a comparison between those images and a

reasonably contemporary photograph of the defendant, provided that the

images and the contemporary photograph are available for the jury (R v Clare

(iv) a suitably qualified expert with facial mapping skills can give opinion

evidence of identification based on a comparison between images from the

scene, (whether expertly enhanced or not) and a reasonably contemporary

photograph of the defendant, provided the images and the photograph are

[44] Where, in England and Wales, a jury is invited to compare a photograph with the

accused in court, they may require to be directed on the dangers of doing so, whether or not

there is supporting testimony, but this depends upon the facts. In R v Shanmugarajah

[2015] 2 Cr App R 14 (p 215), there was no witness identification of the accused as one of a group of

men, caught on CCTV recording attacking a woman at night in a railway station. The jury

were invited to compare the accused with a still from the recording. No warning of the

dangers of identification was given, although the trial judge did direct the jury to bear in

mind the quality and clarity of the photography. The appeal was refused. The court, Hallett

“... the approach and analysis in Downey is correct. There is no invariable or

inflexible rule that a jury have to be expressly warned in every case of the risk that

they might make a mistaken identification. As Watkins LJ pointed out [in R v Dodson

(supra)], and as the court approved in [R v] Downey [(supra)], the task that the jury are

being asked to perform is a perfectly straightforward one, and it is a statement of the

obvious to direct the jury that they must be careful and that they must bear very

much in mind all the kinds of warnings that [counsel for the appellant] has insisted

should be given. Modern practice in these courts is not to require trial judges to

[45] In Ireland, the issue of video evidence for the purposes of identification was

considered in People (DPP) v Maguire [1995] 2 IR 286. The accused had been convicted on the

basis of video images of a robbery and stills taken from them. There had been no other

evidence of identification. The appeal succeeded on the basis of inadequate directions rather

than insufficiency. Barron J, delivering the Opinion of the Court of Criminal Appeal, noted

(at 288) that it was common to ask a jury to identify an accused from film and stills taken of

a crime. He referred to three situations in which video evidence could be used: (1) to bolster

or undermine the testimony of a witness purporting to identify the accused; (2) to allow

persons who are known to have seen the accused, but who were not at the scene, to identify

the person in the video images; and (3) to allow persons, such as police officers, to compare

the image of the miscreant to that of the accused. He continued (at 290):

“Even though the evidence of the video film is admissible, nevertheless the usual

and proper warnings required in relation to evidence of identification must be given

to the jury. It must be made clear to the jury also that its function is to assess the

credibility of the witnesses and that, only where there is no independent evidence of

identification, should it seek to form its own view of the identity of the accused.

When it is proper for it do so, it may use such view together with its view as to the

rest of the evidence in making its decision. Such direction must also make it clear to

the jury that before it can convict it must be satisfied that the person in the dock is

Whichever way the video is used, the role of the jury is not primarily to

decide on its own view of identity, but to decide whether the evidence which it has

heard is credible. In so doing, it must have regard to the video evidence, but in the

same way as it has regard to maps, photographs, drawings etc. Its role is similar to

that of a jury brought to the scene of a crime. It is not brought so that it can decide

for itself whether some action was or was not possible, but to decide whether the

evidence of a witness giving evidence that it was or was not, as the case may be,

It is clearly unsatisfactory to ask a jury to identify an accused from a video

film without adducing any evidence in support of such identification. There may be

cases where no one can be found who can or who is prepared to come to court to

identify an accused. In such cases, where the trial judge is satisfied that no such

evidence is available, then the matter can be left to the jury. That appears to have

been the case here. There was apparently no evidence to identify the applicant as

The preferred route is then to use the video as an accessory to testimony, but a jury could

convict (or acquit) on the basis of their own view of what, or rather who, the video showed,

provided that adequate warnings, along the lines of those given in eye-witness identification

cases, are given and there is no alternative to doing so (see also People (DPP) v Allen [2003] 4

[46] In Canada, the issue was addressed comprehensively by the Supreme Court in R v

Nikolovski [1996] 3 RCS 1197. This was a videoed robbery in which the employee was unable

to identify the robber in court. A police officer, who knew the accused, testified that the

accused’s appearance in court differed from that at the time of his arrest. The trial judge

took the view that the video was sufficiently clear to allow her to conclude that the robber

was the accused and found him guilty. The Court of Appeal quashed the conviction on the

basis that the trial judge ought not to have relied solely on her own comparison of the video

images and the accused in court. The Supreme Court, by a majority of 7-2, reinstated the

[47] The Opinion of the majority, contained in a judgment delivered by Cory J, is worth

“14 With the progress of scientific studies and advances in technology, evidence

put forward particularly as to identification has changed over the years. The

admission of new types of evidence is often resisted at first and yet, later accepted as

15 It may be helpful to consider the evolution of the use of audio and video tape

evidence in Canada. In R v Pleich (1980), 55 C.C.C. (2d) 13, at p 32, the Court of

Appeal for Ontario recognized that tape recordings are real evidence that had, as

well, many of the characteristics of testimonial evidence. In R v Rowbotham (1988), 41

C.C.C. (3d) 1, the use of audio tapes was considered by the same court. It found that

it was the tapes themselves that constituted the evidence which should be considered

17 The admission of videotapes as evidence seems to be a natural progression

from audio tapes. In R v B (KG), [1993] 1 S.C.R. 740, at pp 768 and 774, this Court

praised the evidence obtained from videotapes as a ‘milestone’ contributing to the

‘triumph of a principled analysis over a set of ossified judicially created categories’.

In R v Leaney, [1989] 2 S.C.R. 393, the main identification evidence against the

accused was a videotape of the crime in progress and the testimony of five police

officers. Although this Court held that the evidence of four of the police officers

ought to have been excluded, it upheld the conviction of Leaney on the basis of the

trial judge’s own observations of the videotape and his comparison of the tape to the

18 Similarly in R v L (DO), [1993] 4 S.C.R. 419, L’Heureux-Dubé J, in concurring

reasons, noted that the modern trend had been to admit all relevant and probative

evidence and allow the trier of fact to determine the weight which should be given to

that evidence, in order to arrive at a just result. She observed that this is most likely

to be achieved when the decision makers have all the relevant probative information

20 It cannot be forgotten that a robbery can be a terrifying traumatic event for

the victim and witnesses. Not every witness can have the fictional James Bond’s cool

and unflinching ability to act and observe in the face of flying bullets and flashing

knives. Even Bond might have difficulty accurately describing his would be

assassin. He certainly might earnestly desire his attacker’s conviction and be biased

21 The video camera on the other hand is never subject to stress. Through

tumultuous events it continues to record accurately and dispassionately all that

comes before it. Although silent, it remains a constant, unbiased witness with instant

and total recall of all that it observed. The trier of fact may review the evidence of

this silent witness as often as desired. The tape may be stopped and studied at a

22 So long as the videotape is of good quality and gives a clear picture of events

and the perpetrator, it may provide the best evidence of the identity of the

perpetrator. It is relevant and admissible evidence that can by itself be cogent and

convincing evidence on the issue of identity. Indeed, it may be the only evidence

available. For example, in the course of a robbery, every eyewitness may be killed

yet the video camera will steadfastly continue to impassively record the robbery and

the actions of the robbers. Should a trier of fact be denied the use of the videotape

because there is no intermediary in the form of a human witness to make some

identification of the accused? Such a conclusion would be contrary to common sense

and a totally unacceptable result. It would deny the trier of fact the use of clear,

accurate and convincing evidence readily available by modern technology. The

powerful and probative record provided by the videotape should not be excluded

when it can provide such valuable assistance in the search for truth. In the course of

their deliberations, triers of fact will make their assessment of the weight that should

be accorded the evidence of the videotape just as they assess the weight of the

23 It is precisely because videotape evidence can present such very clear and

convincing evidence of identification that triers of fact can use it as the sole basis for

the identification of the accused before them as the perpetrator of the crime. It is

clear that a trier of fact may, despite all the potential frailties, find an accused guilty

beyond a reasonable doubt on the basis of the testimony of a single eyewitness. It

follows that the same result may be reached with even greater certainty upon the

basis of good quality video evidence. Surely, if a jury had only the videotape and the

accused before them, they would be at liberty to find that the accused they see in the

box was the person shown in the videotape at the scene of the crime committing the

offence. If an appellate court, upon a review of the tape, is satisfied that it is of

sufficient clarity and quality that it would be reasonable for the trier of fact to

identify the accused as the person in the tape beyond any reasonable doubt then that

decision should not be disturbed. Similarly, a judge sitting alone can identify the

[48] The court considered some of the cases from England and Wales, notably R v Dodson

(supra) and R v Downey (supra), before looking at an interesting passage, relating to the

position in the United States of America, in Wigmore: Evidence (vol 3, rev. ed 1970, para 790).

This contained an advance on the previous position that a photograph was only admissible

as an adjunct to the testimony of a witness. Wigmore recognised that:

“once there is an adequate assurance of the accuracy of the process producing the

picture, the photograph should be received as a so called silent witness or a witness

“28 Once it is established that a videotape has not been altered or changed, and

that it depicts the scene of a crime, then it becomes admissible and relevant evidence.

Not only is the tape (or photograph) real evidence in the sense that that term has

been used in earlier cases, but it is to a certain extent, testimonial evidence as well. It

can and should be used by a trier of fact in determining whether a crime has been

committed and whether the accused before the court committed the crime. It may

indeed be a silent, trustworthy, unemotional, unbiased and accurate witness who has

complete and instant recall of events. It may provide such strong and convincing

evidence that of itself it will demonstrate clearly either the innocence or guilt of the

31 The jury or trial judge sitting alone must be able to review the videotape

The fact finder can thus draw his or her own conclusions from a video, whether in relation

to events or identity, without the need for a witness to describe what is shown in the relative

images (see also eg R v Delorme 2017 SKCA 3, citing (at paras [37-40]) R v Nikolovski (supra)

[49] In Smith v R [2001] 206 CR 650, the High Court considered an appeal concerning the

admissibility of the testimony of police officers who identified the accused, whom they

knew, from security photographs taken at a bank robbery. The majority regarded the

evidence of the police as irrelevant because they were in no better a position to identify the

accused from the photographs than the jury, or any member of the public. In this regard, it

was not suggested that the accused’s appearance in court differed from that at the time or

that the police officer’s knowledge of his appearance gave them an advantage. In an

interesting concurring opinion, Kirby J expressed the view that, although the majority’s

reasoning was wrong, the officers’ testimony was inadmissible as being evidence of opinion

[50] In R v Howe [1982] 1 NZLR 618 a police officer provided a commentary to a series of

photographs of a riot. He identified accused persons in the course of that exercise. It was

held (at 627) that the commentary was legitimate as an aid to the jury in understanding the

photographs. The identifications were also admissible, as the officer had made a study of

the photographs for the purposes of reliably identifying the individuals in them. The court

approached the issue of the admissibility, of what it regarded as a type of opinion evidence,

as it was described, from the angle of fairness. It regarded it as fair, even if it suggested (at

[51] In Matara v R [2015] NZCA 261, the Court of Appeal determined that a warning to a

jury, to take care, in relation to the jury comparing video images with accused in court or

arrest photographs, was not required. The jury was not considering evidence of

identification from a witness, nor would the comparison have been decisive. There were a

[52] Under reference to S v M 2002 (2) SACR 411 (SCA) Zeffertt; South African Law of

Evidence (2nd ed) (at 849) describes real evidence as being 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. The judge is entitled to rely upon his or her perceptions and to draw such inferences

as may reasonably be drawn without expert qualifications. However, it is also said that real

evidence is seldom of assistance without testimony. Nevertheless, video recordings are real

evidence (S v Mpumlo 1986 (3) SA 485; S v Mdlongwa 2010 (2) SACR 419). They require to be

identified but not necessarily by the photographer. A witness can be asked whether he

recognises a particular scene or person shown in a photograph, the origin of which may be

[53] The court does not consider that there is a material difference, between Scots law and

that in the other jurisdictions examined, concerning the general approach to real evidence.

In any system there will be a requirement to demonstrate the provenance of the thing. For a

video recording to be used as proof of fact in a criminal trial, it will be necessary to show

that the recording is of the relevant event. How that is done will depend upon the

circumstances. Section 283 of the 1995 Act is an obvious method. The person responsible

for the operation of the system can certify that visual images and sounds recorded on a

particular device are of, or relate to, events at a particular time or place. That certificate,

when formally produced at trial, will be “sufficient evidence” of what is certified. However,

[54] With public area CCTV images, for example, a police officer downloading images

may be able to testify to recovering them for a particular location or time. The content of the

images, when compared with other evidence of events, may be such that an inference can be

drawn that what is shown is a recording of the event. In this regard, the evidence in

Robertson v HM Advocate (supra) may be seen as more than “barely” sufficient. Private CCTV

may involve an employee of the relevant organisation testifying to the same effect.

Individuals recording events on cameras or mobile phones, which are matters not covered

by section 283, can speak to doing so. Even without anyone speaking to the recovery of the

images, a witness to the scene may legitimately be asked if what is shown in images

produced is of the relevant event. The fact finder may infer from that that someone, perhaps

unidentified, recorded the images at the time. This may be sufficient evidence of

provenance. Once the provenance has been established, the question is then what can the

[55] Dickson: Evidence (Grierson ed, at para 1815) equates real evidence with “evidence

derived from things”. This is referred to in Walker & Walker: Evidence (3rd ed, at para 18.1),

where the authors (Ross and Chalmers) cite the observation in Cross & Tapper: Evidence (11th

ed, at p 60) that the term “covers the production of material objects for inspection by the

judge or jury in court” (emphasis added; see also Davidson: Evidence para 5.01). The purpose

of any such inspection by the fact finder is with a view to drawing inferences from what can

“Matters which in the past might have been left to the recollection of a witness may

now be the subject of real evidence in the form of an automatic recording”.

[56] In Hopes and Lavery v HM Advocate (supra at 110) the Lord Justice General (Clyde)

said that the recording is “primary evidence”. It is thus, if duly proved to have been made

at the relevant time and place, equivalent to a witness speaking to events seen or heard. In

this sense it is indeed Wigmore’s “silent witness” (Wigmore (supra at 219-21, cited in R v

Nikolovski (supra, Cory J at para 26)). Once before the fact finder, the recording’s content is

available as proof of fact. The fact finder is free to make such inferences from the audio or

video components as would be open to any judge or jury hearing oral testimony descriptive

of the same events. This does not convert the fact finder into a witness.

[57] This approach is consistent with the obiter dictum in Steele v HM Advocate (supra)

about the freedom of fact finders, including a jury, to make up their own minds about what

video images reveal. Interpreting what the court said in Steele may not be entirely

straightforward. On the one hand, the court equates “evidence” with testimony and states

that testimony is “almost always” needed to speak to the essentials, including identity of the

perpetrator and the facts of the crime. Leaving aside the qualification of “almost always”,

the statement, that a jury are at liberty to form their own view, may be interpreted as

contradicting this, since a recording may clearly show a crime being committed and the

accused committing it. It may be because of this perceived contradiction that the law

[58] However, what was said about the freedom of the fact finder in Steele is consistent

with Hunt v Aitken (supra), which endorsed that dictum, and with Singh v HM Advocate

(supra). Hunt dealt with the common-place situation in which the fact finder has a piece of

real evidence, in that case a photograph, and can see for himself or herself what is

demonstrated by, or can be inferred from, the state of the thing. Sheriffs and juries are

regularly shown things, particularly photographs but also weapons and other objects, with a

view to being able to understand what appears from looking at them.

[59] No doubt, as was said in Steele, testimony will “almost always” be given by eye

witnesses who were present at the event shown in the video images. It will often, as the

court in Steele also said, be advantageous for witnesses, who were present and who saw

what happened, to comment on what the images depict. This will be so, especially if the

witness testifies to something not obviously apparent from the images or denies something

apparently shown in the images. 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

[60] The same principles must apply in relation to proof of the identity of persons as they

do to proof of events, including, but not exclusively, the identity of accused shown in video

images. There is no logical reason for any distinction. The “common ground” upon which

the court proceeded in Gray v HM Advocate (supra) must therefore be regarded as more than

shaky. It contradicted the position outlined in Steele, to which the court had been referred,

concerning the jury’s ability to make up their own minds. It may, with hindsight, be

regarded as regrettable that the court in Gray was not taken to the developing jurisprudence

(supra) in England, and especially Canada, rather than the case proceeding upon common

[61] Similarly, the approach in Donnelly v HM Advocate (supra) must be seen as erroneous.

The court in Donnelly took the view that Steele was authority for the proposition that a jury

could not decide for themselves the identity of a person shown in a video recording. It is

not; if anything it says the opposite. Once again, with hindsight, it is unfortunate that, in

such an important area of the law of evidence, there appears to have been no consideration

[62] 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. They may

also hold that it shows a person resembling the accused, so as to provide corroboration of a

single eye witness identification (see Ralston v HM Advocate 1987 SCCR 467) and in a

circumstantial case. In carrying out this task they would be entitled to compare the image

with a photograph of the accused taken at or about the time of the incident and/or with his

[63] In reaching this view, which attempts to resolve the conflicting authority in Scotland,

the court has paid particular attention to the sound reasoning of Cory J in the Canadian

Supreme Court case of R v Nikolovski (supra). This represents an enlightened and sensible

approach to video or audio recordings. This court adopts that reasoning in so far as quoted

above. In particular, “so long as the videotape is of good quality and gives a clear picture of

events and the perpetrator, it may provide the best evidence of the identity of the

perpetrator.” It may assist in the assessment of testimony. It may supplement testimony

[64] The court agrees with the circumstances in which a jury can be invited to conclude

that the identity of an accused as perpetrator is proved, as set out by the Court of Appeal of

England and Wales in Attorney General’s Reference (No. 2 of 2002) (supra). If the image is

sufficiently clear, the jury can compare it with the accused in court. A person who knows

the accused can be asked to identify him from the image (even if the image has been lost). If

a person, such as a police officer, has spent time viewing and analysing the images and thus

acquires a knowledge beyond that which the jury might attain in the course of a trial, he or

she can give comparison evidence if there is a contemporary photograph available. Such a

photograph may not be necessary where it is not disputed, or it is proved, that the accused’s

appearance in court is not materially different from his appearance at the time of the crime.

The court does not agree with the approach of the Irish courts, as set out in People (DPP) v

Maguire (supra), to the effect that comparing the images to the accused in court by the jury

should only be permissible in extremis. If it is possible for the jury to make a comparison,

then the fact that there is testimony on identity should not operate as a bar to that exercise.

[65] The extent to which a witness may be asked to provide a commentary on the images

will depend upon the circumstances. Clearly, witnesses who were at the scene may be

asked about what is shown in the images, by way of an aide memoire or contradiction. There

may, of course, be no such witnesses. In that event, and in any event, it may be helpful for

an investigating police officer, or other person who was not present at the time, to provide a

commentary on what is shown in the recording. The court agrees with the New Zealand

Court of Appeal in R v Howe (supra at 627-8), and disagrees with that of the High Court in

Australia in Smith v R (supra) that such evidence is admissible in so far as it can be said to

aid the jury’s understanding of the images. It may assist in pointing out specific features. It

is not opinion evidence on a matter which the jury are to decide. It is simply descriptive of a

piece of real evidence. The court also agrees that any such commentary should be kept to a

[66] Where the line does requires to be drawn is where, rather than using the witness as a

commentator to assist the jury to understand what is shown and what may be important, a

party seeks to obtain from a witness, who was not present at the time, that witness’s

impression or interpretation of what the images show; that is to say, strays beyond what is

physically obvious when pointed out. In this case, seeking evidence from the police officer

about whether what was shown in the images was consistent with consensual sexual activity

was illegitimate. The questioning of her should have been disallowed. It is legitimate to put

such a proposition to a complainer or to those present at the time, but not to a police officer

who is in no better a position to comment than a member of the jury.

[67] In this case, the trial judge’s directions were generally correct in their material

aspects. Those parts, derived from the Jury Manual, in which reference was made to jurors

being judges and not witnesses were not helpful. It is not easy to understand what this

distinction means. The passage concerning the need for a witness to testify to identity was

wrong, but was not significant in this case in which identity was not an issue. The direction

to the jury to form a judgment about what the images showed, just as if they would form a

judgment about eye witness descriptions of what happened, was correct. The statement that

the jury could draw their own conclusions about what the images depicted was also correct.

The parts permitting the jury to assess the testimony of the witnesses, but not being bound

by that testimony, were consistent with the views expressed in this Opinion. Having

admitted the testimony of the police officer on whether the images showed consensual

activity should have been excluded, the directions on this were not material and in any

event favoured the appellants. It follows that there was no misdirection leading to a

[68] In relation to corroboration, no difficulty arises. If the only evidence of, for example,

identity comes by way of a comparison of video images with the accused in a photograph,

there will be corroboration if the provenance of the recording and the photograph are each

proved by two witnesses. In this respect, the situation is little different from proof that a

fingerprint or DNA has been found at a particular location and is that of the accused (Reid v

HM Advocate 2017 JC 37 following Langan v HM Advocate 1989 JC 132). The only difference is

that in fingerprint or DNA cases a comparison requires the involvement of an expert.

[69] In England and Wales a judge has a discretionary power to exclude evidence of

identification from video images as inadmissible on the basis of the quality of the images (R

v West [2005] EWCA Crim 3034). There is a general statutory power in that jurisdiction to

exclude evidence, if it would have such an adverse effect on the proceedings that the court

ought not to admit it (Police and Criminal Evidence Act 1984, s 78). In Scotland, as was said

in Henry v HM Advocate (supra) at para [19]), it would only be in an “extreme” case that such

evidence could be excluded as rendering a trial inevitably unfair in terms of Article 6 of the

European Convention. Assessment of the quality of the evidence is generally a matter for

the fact finder, ie the jury. If there is a concern about the inferences of fact to be drawn from

the images, that would require to be expressed in the context of a submission based upon an

[70] A “no case to answer” submission could be made in relation to the evidential import

of video images in the same way as it might be made about the sufficiency of testimony

concerning the identity of a perpetrator. Just as witness testimony on the identification of an

accused may be strong or weak, video images will have the same characteristic. Judges and

sheriffs may have to decide whether the totality of the evidence reaches the base line of

quality required to constitute a sufficiency. This does not involve a decision on the

reasonableness of a verdict, but is a straightforward determination of whether there are two

sources of evidence which, taken at their highest, are sufficient to enable the fact finder to

[71] The form of the direction to a jury in cases involving video evidence does require

revisal in relation, in particular, to those parts which refer to juries being judges and not

witnesses and to those other sections referring to the need for testimony in order to prove

identification. In the normal case where there is both eye witness testimony of the events

and relatively clear video images, the following would be regarded as acceptable,

[72] “Witnesses have testified about what they say is happening in the video images and

who is shown in them. You have to consider which, if any, of the witnesses is credible and

reliable. You may find the testimony of a witness helpful in interpreting what is shown in

the images. You are not bound by what each witness says. You can take into account, in

determining the facts, what and who you consider to be shown in the images. You can have

[73] There ought to be no reason to give the jury a cum nota warning on the dangers of

eye witness identification evidence when referring to the assessment of video images. The

reasoning expressed by Hallett LJ in R v Shanmugarajah (supra, following R v Dodson (supra)

as approved in Downey (supra)) and by the New Zealand Court of Appeal in Matara v R

(supra) is sound and ought to be preferred to the contrary views in, for example, People

(DPP) v Maguire (supra) and R v Nikolovski (supra). The jury is not, in this exercise, being

asked to look at the testimony of a witness purporting to recognise a person, perhaps a

stranger, whom he or he saw at the material time, perhaps in a fleeting glimpse. The jury

are being asked to analyse, at their leisure, video images to see if they depict the accused as

he appears in court or in photographs taken at an earlier stage in the proceedings. In this

respect, the comments about replaying audio tapes in Hopes and Lavery v HM Advocate

(supra), where there was a prepared transcript of what was said, are not applicable to the

current era where video images can be replayed with facility in the course of a trial,

including after the jury have been secluded. That is not to say that, in a given case, the trial

judge or sheriff may wish to say something about the quality of the images shown.

[74] Where appropriate directions are also given on the operation of corroboration, there

ought to be little difficulty in understanding the basis for a jury’s verdict. Where it is one of

guilt, they will have been satisfied beyond reasonable doubt, upon the evidence of two

sources (which may include the content of the video images), that the accused committed

the crime charged.

Scottish High Court of Justiciary Decisons