Wilson v Tudhope

Scottish Criminal Case Reports/1985/ALLAN KNOTTS WILSON Petitioner against JAMES MACKENZIETUDHOPE Respondent (Procurator Fiscal, Glasgow) - 1985 S.C.C.R. 339

ALLAN KNOTTS WILSON Petitioner against JAMES MACKENZIE TUDHOPERespondent (Procurator Fiscal, Glasgow)

1985 S.C.C.R. 339

Petition Under Section 10 of the Criminal Justice (Scotland) Act 1980

Sheriff Court

19th July 1985

Identification parade--Prosecutor failing to hold parade because of refusal of witnesses to attend--Whethercompetent for sheriff to order parade to be held--Criminal Justice (Scotland) Act 1980 (c.62), s.10

Section 10 of the Criminal Justice (Scotland) Act 1980 provides, inter alia:

'(1) Subject to subsection (2) below, the sheriff may, on an application by an accused at any time after the accused hasbeen charged with an offence, order that, in relation to the alleged offence, the prosecutor shall hold an identificationparade in which the accused shall be one of those constituting the parade.

(2) The sheriff shall make an order in accordance with subsection (1) above only after giving the prosecutor anopportunity to be heard and only if--

(a) an identification parade . . . has not been held at the instance of the prosecutor;

(b) after a request by the accused, the prosecutor has refused to hold, or has unreasonably delayed holding, such anidentification parade; and

(c) the sheriff considers the application . . . to be reasonable.

(3) An application under subsection (1) above shall be by petition.'

The petitioner was charged on summary complaint with theft. He requested an indentification parade, andwhen none was held he applied for an order under s.10 of the 1980 Act. The Crown opposed his petition asincompetent, claiming that they had not unreasonably delayed holding a parade. The position was that theCrown had twice instructed the police to hold a parade, but that the arrangements made by the police hadbeen cancelled by them when they learned that the witnesses were unwilling to attend.

Held, that an identification parade is held when a suspect is placed in a line-up, whether or not witnessesattend, and that the Crown had unreasonably delayed holding a parade; and petition granted and Crownordered to hold parade.

Opinion, that it is competent to cite a witness to attend an identification parade.

Cases referred to in the sheriff's note:

Adair v McGarry, 1933 J.C. 72; 1933 S.L.T. 482

Forbes v Main, 1908 S.C.(J.) 46; 5 Adam 503; 15 S.L.T. 1042

Henderson v Patrick Thomson Ltd, 1911 S.C. 246; 1910, 2 S.L.T. 443

H.M. Advocate v Monson (1893) 21 R.(J.) 5; 1 Adam 114; 1 S.L.T. 405.

Allan Knotts Wilson was charged on summary complaint in the sheriff court at Glasgow with a theftallegedly committed on 28th March 1984.

After sundry procedure, which is set out in the sheriff's note, he presented the following petition tothe sheriff in terms of s.10 of the Criminal Justice (Scotland) Act 1980 on 8th July 1984.

'HUMBLY SHEWETH:

(1) That the petitioner has been charged in your Lordship's court at Glasgow on a summary complaint atthe instance of the procurator fiscal with the offence of theft.

1985 S.C.C.R. 339 at 340

(2) That the trial of the said Allan Wilson is to take place in the said court on 6th August 1985.

(3) That an identification parade in which the petitioner was one of those constituting the parade has notbeen held.

(4) That the petitioner has requested the prosecutor to hold such a parade, but he has unreasonablydelayed holding the same.

(5) That it is reasonable in the circumstances in relation to the alleged offence that such an identificationparade should be held, the said circumstances being that the four eyewitnesses involved in this case wereshown a number of photographs by the police and that only one witness identified the now accused. Arequest was made by the petitioner to the procurator fiscal to have an identification parade held andinstructions that such a parade be held were given to the police who in turn approached the witnesses. Thewitnesses refused to take part in an identification parade and the procurator fiscal has done nothing morein an attempt to have a parade held.

'May it therefore please your Lordship:

(1) to appoint intimation of this petition to be made to the said procurator fiscal,

(2) to appoint parties to be heard thereupon on the earliest practicable date hereafter; and

(3) thereafter, upon being satisfied in terms of section 10(2) of the [Criminal Justice (Scotland) Act 1980], toorder the prosecutor to hold an identification parade in which the petitioner shall be one of those

constituting the parade, in relation to the offence referred to above with which the petitioner has beencharged.'

The Crown opposed the petition, and a hearing was held on 9th, 10th and 19th July 1985before Sheriff Mitchell.

For the petitioner: Macara, Solicitor, Glasgow.

For the respondent: Munro, P.F.D.

On 19th July 1985 the sheriff issued the following interlocutor.

'The sheriff, having heard the prosecutor and the solicitor for the petitioner further on the foregoing petition,grants same and in terms thereof, orders the Procurator Fiscal, Glasgow, to hold an identification paradein which the petitioner Allan Knotts Wilson shall be one of those constituting said parade in relation to thecomplaint No. C4713/84, the Procurator Fiscal against the said Allan Knotts Wilson; further orders saidparade to be held before Wednesday, 31st July 1985.'

The sheriff appended the following note to his interlocutor.

Sheriff Mitchell.

This is an application by the accused, Allan Knotts Wilson, in terms of section 10(1) of the Criminal Justice(Scotland) Act 1980. The prayer of the accused's petition seeks an order from the sheriff that in relation tothe alleged offence with which he has been charged, the prosecutor shall hold an identification parade inwhich the accused shall be one of those constituting the parade.

The charge against the accused is that he 'did on 28th March 1984, while acting along with others meantimeunknown, from the shop premises at 395 Nitshill Road, Glasgow, steal a gaming machine and contents'.

The complaint is dated 7th June 1984 and on 15th June 1984 the sheriff granted a warrant to apprehend theaccused. On 16th November 1984 the accused first appeared in court when he pled not guilty and the courtadjourned the diet for trial until 1st March 1985. The accused (designed originally in the complaint as 'whosepresent whereabouts are meantime unknown'), was admitted to bail on the standard conditions. His addresswas stated to be '42 Brock Road, Pollok, Glasgow'.

1985 S.C.C.R. 339 at 341

On 1st March 1985 the case called before the sheriff. The court, on the motion of the defence, there being noobjection by the prosecutor, adjourned the diet for trial until 6th August 1985.

Thereafter the accused presented the present application which, in terms of section 10(3) of the 1980 Act, isby petition. A hearing on the petition took place during the morning of 9th July and again briefly both on 10thand 19th July 1985. The Crown opposed the petition.

Mr Macara, who appeared for the petitioner, stated that he had, so far, been able to precognosce three of the

Crown witnesses: two police officers and one civilian witness. The civilian witness, one Valerie Fox, hasstated on precognition to the defence that she cannot identify the accused as the perpetrator of the crime.

According to the precognition which Mr Macara's firm has obtained from one of the police officers, namely,Detective Constable Fraser, one of the other civilian witnesses, MacPherson, was able to say he heard oneof the perpetrators referred to as 'Knottsy'. D.C. Fraser knew the accused whose middle name is, of course,'Knotts'. D.C. Fraser showed the witness MacPherson a photograph of the accused on 25th April 1984 andthe witness identified the accused as one of those involved. According to Mr Macara, the remaining threecivilian witnesses have not been shown photographs of the accused at any time and have declined to attendan identification parade.

Accordingly, what it came to was that the Crown evidence of identification rested solely on MacPherson. Theprocurator fiscal had not refused to hold an identification parade, but no identification parade had beenheld. As he understood it, the problem was that the witnesses declined to attend and on this account anidentification parade had not been held.

Under reference to the statements in the petition, Mr Macara argued that the prosecutor had unreasonablydelayed holding an identification parade after a request by the accused. The point Mr Macara seemed tome to be making was that the motions of arranging and proceeding to hold an identification parade at aspecified place and at a specified time had not been gone through. This was not a case in which anidentification parade had been arranged and on the date set for the parade the witnesses to view thatparade had failed to attend. No definite time and place for a parade had been fixed although provisionalarrangements had been made to hold an identification parade on a particular date and time. This had beencancelled because the witnesses intimated to the police their refusal to attend at the parade.

On that basis, the term 'prosecutor'--which must include the police as agent of the procurator fiscal--hadunreasonably delayed holding an identification parade.

It was reasonable to hold an identification parade in the circumstances narrated in the petition. There wasa danger here that the witnesses might simply identify the accused at his trial because he was the man in thedock. There could be no prejudice to the Crown. If the witnesses identified at the parade but did not do so incourt then the law was clear. The statutory conditions set out in section 10(2) were fulfilled and the prayer ofthe petition should be granted.

For the Crown, the senior procurator fiscal depute submitted that the petition was incompetent. Theprosecutor had not refused to hold an identification parade nor had the prosecutor unreasonably delayedholding an identification parade.

When the case was originally reported to the procurator fiscal's office, the information was that one of thewitnesses had been shown a photograph of the accused and had identified him. A warrant had been soughtand granted. The procurator fiscal's office had sent a form 'A' to the police instructing them to hold anidentification parade. Provisional arrangements had been made to hold the identification parade at aspecified place and time, but because the witnesses told the police that they refused to attend theidentification parade had been cancelled. The matter was left at that and at the trial diet on 1st March 1985the defence had moved

1985 S.C.C.R. 339 at 342

the sheriff to grant an adjournment in order that an identification parade might be held. The Crown had notopposed that motion which the sheriff granted. Shortly thereafter, the procurator fiscal's department againinstructed the police to hold an identification parade. The same police officer, namely, D.C. Fraser, had

again seen the witnesses. The witnesses were reported to be terrified. D.C. Fraser had not told them thatthey could refuse to attend an identification parade or that there was no legal obligation upon them to do sobut, none the less, they had refused to attend. The police reported to the procurator fiscal that the witnessesrefused to view at an identification parade for the reasons explained in previous correspondence. Thisreport, dated 16th March 1985, was signed by D.C. Fraser and countersigned by Detective Chief InspectorCurrie, and Detective Chief Superintendent Marshall. The accused's solicitor had been informed andthereafter the present petition had been presented.

Accordingly, as there was obvious expense occasioned in constituting an identification parade, this had notbeen done because of the witnesses' refusal to attend. There was no point in constituting an identificationparade if the witnesses refused to attend. An identification parade could not be 'held' if the witnesseswould not attend, and neither the police nor the procurator fiscal had any power to compel the attendance ofthese reluctant witnesses at an identification parade.

The procurator fiscal depute accepted that the term 'prosecutor' in section 10 included the police. Neitherparty had any reservation about this. I should observe that the term 'prosecutor' is not defined in the 1980Act. Section 81(2) of the 1980 Act provides: 'Except where the context otherwise requires, expressions usedin this Act and in the 1975 Act shall have the same meanings in this Act as in that Act.' The term 'prosecutor'is defined in section 462(1) of the 1975 Act in the following terms:

'. . . in Part I of this Act, includes Crown counsel, procurator fiscal, and any other person prosecuting in the publicinterest and any private prosecutor; and, in Part II of this Act, includes procurator fiscal, district prosecutor, deputedistrict prosecutor, assistant district prosecutor, and any other person prosecuting in the public interest, privateprosecutor, and complainer and any person duly authorised to represent or act for any public prosecutor.'

The procurator fiscal depute submitted that the 'prosecutor' had neither refused nor delayed unreasonablyholding an identification parade. The procurator fiscal wanted to hold an identification parade in this case,but as the witnesses refused to attend, and there could be no identification parade held without witnesses,an identification parade could not be 'held' in this case.

Both the procurator fiscal depute and Mr Macara were agreed that there was no decided case on themeaning of the phrase 'unreasonably delayed holding'. The procurator fiscal depute indicated that herinterpretation of the relevant subsection was that in the circumstances of this case the prosecutor had notunreasonably delayed holding an identification parade. On the contrary, the prosecutor had tried on twooccasions to hold an identification parade but could not do so because the witnesses had refused to attendvoluntarily and as they could not be compelled to attend nothing more could be done. Accordingly, thestatutory conditions laid down in section 10(2) were not fulfilled and the present petition was incompetent.

The procurator fiscal depute expressed the view that if witnesses refused to attend an identification paradethey could not be compelled to do so. All that could be done was to cite them to attend for precognition andperhaps precognition on oath before the sheriff. Indeed, she went on to submit that since the defence canseek precognition on oath before the sheriff that is the course which should have been followed by thedefence in the present case.

As the matter seemed to me to be of some importance, I decided to consider the competing submissionsovernight and continued the application until 10th July 1985. I was very doubtful if the law was that ifwitnesses refused--for good reason or

1985 S.C.C.R. 339 at 343

bad--to attend an identification parade, nothing could be done to secure their attendance. It seemed to methat the proper investigation of crime and detection of criminals could be frustrated or at least seriouslyhindered if this was the law. Further, it seemed to me that this could lead to cases alleging serious crimesbeing prosecuted in both the High Court and the sheriff court on the basis that the prosecutor would have towait and see if witnesses would identify in court when he had no clear information as to whether there wouldbe any identification at all.

I asked for the parties' submissions on the issue of whether there was any power vested in the court to citewitnesses to attend at an identification parade. On 10th July 1985, the procurator fiscal depute said thatthere was not. Mr Macara pointed out that if there was, the exercise of any such power had not been soughtin this petition.

I specifically afforded both parties the opportunity of making submissions on the passage in the currentedition of Renton and Brown's Criminal Procedure at paragraph 5--91 and the cases therein referred to,namely, Forbes v Main, 1908 S.C.(J.) 46 and H.M. Advocate v Monson (1893) 1 Adam 114 and, in particular,the passages in the opinion of Lord Justice-Clerk Macdonald at pp. 135 to 136.

At the final adjourned diet on 19th July 1985 (to which I had ex proprio motu continued the case to enablethe procurator fiscal depute to obtain the advice of Crown counsel on the issues raised by this petition), theprocurator fiscal depute intimated that Crown counsel considered that there was no power to compelwitnesses to attend an identification parade. There was no statutory authority for this. The working groupappointed to consider identification procedure under Scottish criminal law under the chairmanship of SheriffPrincipal Bryden had recommended that there should be no such statutory power. Their report waspresented to Parliament in April 1978 (Cmnd 7096). Further, the court had no power at common law tocompel the attendance of witnesses at an identification parade whether by granting warrant to cite orotherwise.

The procurator fiscal depute adhered to her previous submissions. Witnesses could not be compelled toattend at an identification parade; an identification parade could not be 'held' at the instance of theprosecutor without the attendance of witnesses to view those paraded. Accordingly, it followed that as it wasimpossible to hold a parade, the prosecutor could not be said to have 'unreasonably delayed holding' anidentification parade in this case as it was impossible to hold an identification parade despite therepeated efforts which had been made. This situation was highly unusual. In her ten years as a procuratorfiscal, she had never before encountered a situation where the witnesses had refused to attend anidentification parade when requested to do so. It may be that Parliament had not considered this situationwhen section 10 was enacted, but however that may be, for the reasons advanced the present petition wasincompetent and should be refused.

The procurator fiscal depute informed me that her view, and the view of Crown counsel, was that neither thecases nor the passage in Renton and Brown to which I had referred had any relevance to the presentapplication. As I understood her, the procurator fiscal depute's submission was that the duty which LordJustice-Clerk Macdonald desiderated in Monson was a moral and not a legal duty. As a moral duty it couldnot be enforced.

Accordingly, it seemed to me that it followed from the procurator fiscal depute's submission that what hisLordship said did not create a legal duty upon a witness to 'give such information to the Crown as he may beasked to give' by attending at an identification parade when requested to do so.

It further seemed to me that the Crown's submission was that the passage in his Lordship's opinion atpp.135--136 did not mean that there was any legal duty upon a witness to give his aid by attending at an

identification parade when requested to do so.1985 S.C.C.R. 339 at 344

Mr Macara accepted that there was no statutory authority to cite witnesses to attend at an identificationparade. He submitted, however, that in an appropriate case the court had an inherent power to do so. In anyevent, however, his main submission was as previously stated--the Crown had to go through the motions ofarranging, organising and running an identification parade with the accused as one of those constitutingthe parade in order to comply with section 10.

He submitted that, by analogy, a trial is held where the court is constituted and the accused is in the dock. Ifit turns out that the witnesses when called into court to give evidence have not attended then the trial has stillstarted and is being held. It was not a pointless exercise to go through the motions of holding anidentification parade in this case. If, in fact, the witnesses did not attend a duly constituted identificationparade at a particular place and a particular time in response to a request to do so, then this could be put tothem in cross-examination at the trial and this was an important matter if there was any identification of theaccused in court. In all the circumstances, the prayer of the petition should be granted.

It is within judicial knowledge that from time to time the Scottish Home and Health Department has issuedrules relating to the standard procedure of conducting identification parades in Scotland. The rules havebeen issued with the approval of the Secretary of State for Scotland and the Lord Advocate. It appears to methat these rules have been issued to secure that an identification parade (1) only takes place when it islawful to hold one, and (2) is conducted fairly.

Accordingly, when a person agrees or can lawfully be compelled to take his place in an identificationparade, an identification parade can be arranged to take place at a specified place and time. The policecan request the attendance of witnesses to view the identification parade and arrange the attendance ofstand-ins. In accordance with the S.H.H.D. rules, the officer conducting the identification parade has to beentirely unconnected with the enquiry. He is responsible for the proper conduct of the identification paradeand for making and keeping a record of the proceedings. The identification parade should be conducted inaccordance with the S.H.H.D. rules.

In my opinion, it is clearly established law that it is the accused or suspect person who is being paraded bytaking his place in the line-up. The stand-ins are there so that the line-up comprises persons of similar age,height, dress and general appearance. The purpose of this is to achieve fairness to the accused or suspectperson.

In this case, although the Crown and the defence joined issue on the meaning of the phrase 'holding anidentification parade', they both agreed that an identification parade had not been held at the instance ofthe prosecutor.

The decision to hold an identification parade in a particular case can be taken by the 'prosecutor' asdefined in section 462(1) of the 1975 Act or the police.

However, as I understand the law, a suspect who is not in custody is not obliged to attend at anidentification parade, although he may consent to do so. A person in custody on a particular charge is in adifferent situation. He is not entitled to refuse to take part in an identification parade. The parading of anarrested person seems to have been accepted as competent since the early nineteenth century--see Alison,Practice of the Criminal Law of Scotland, pp.627--9, and Bryden, p.13.

The rights and powers of the police to place an arrested person in an identification parade were discussedin the Full Bench case of Adair v McGarry, 1933 J.C. 72. It is the duty of the police to investigate crime andthey are entitled, without warrant, to search an apprehended person for evidence as to his identity or as tohis complicity in crime. This right extends to compelling him to take his place in an identification parade(see Lord Morison at p.89).

In my opinion, under reference to Adair v McGarry, 'holding an identification parade' within the meaning ofsection 10 of the 1980 Act occurs when an accused or suspect person is placed in the line-up of stand-ins.

1985 S.C.C.R. 339 at 345

The right which the law affords to the prosecutor and police in respect of an arrested person is to compel himto take his place in an identification parade. When that right is exercised then, in my opinion, theidentification parade is constituted and is in being. If the S.H.H.D. rules have been complied with theaccused or suspect person will have chosen his own position in the line-up. The final words of section 10(1)are 'the prosecutor shall hold an identification parade in which the accused shall be one of thoseconstituting the parade'. In my opinion, this means that the parade is constituted when the accused takes hisplace in the line-up of stand-ins. The identification parade is then being held. When the person is allowedto leave the line-up, an identification parade has been held. This interpretation seems to me to be entirelyconsistent with the opinions expressed in Adair v McGarry.

I am fortified in this view by the fact that the record of proceedings kept by the officer in charge of theidentification parade will already contain the following:

(a) Time, date and place of the parade.

(b) Name, age and address of the suspect or accused and a description of dress.

(c) The nature of the crime.

(d) Name, age and address of other persons on the parade and the number assigned to each at the commencementof the parade.

The relevant rules are printed in an appendix to the Bryden Report.

It may be in a particular case, if the officer in charge of the identification parade learns in time that none ofthe witnesses requested to attend to view the parade have done so, that he will decide not to exercise theright to place the arrested person in the line-up. In that situation, in my opinion, the 'holding of anidentification parade' would not have occurred.

In my opinion, when the police propose to hold an identification parade, they can cancel the proposedarrangement at any time before the accused or suspect takes his place in the line-up, but not thereafter. If nowitness attends to view the parade in which he has taken his place then the record of proceedings wouldsimply record that no witness attended to view the parade.

In this case, however, the decision to hold the identification parade was not taken by the police: it wastaken by the procurator fiscal. An instruction to hold an identification parade was issued by the procuratorfiscal to the police on two occasions. However, an identification parade has not been held.

In my opinion, the police had to comply with the procurator fiscal's instruction to hold an identification

parade. The Police (Scotland) Act 1967, section 17(3), states: 'Provided that in relation to the investigation ofoffences the chief constable shall comply with such lawful instructions as he may receive from theappropriate prosecutor.' The police have not complied with the procurator fiscal's instructions in this case.

In my opinion, what the police had to do was to require the accused to take his place in an identificationparade. In my opinion, once that had been done the 'holding of an identification parade' had occurred andonce the accused was allowed to leave the line-up, an identification parade had been 'held' and the policehad complied with the procurator fiscal's lawful instruction.

In this case that has not been done and if, as the procurator fiscal depute accepted, the term 'prosecutor'includes the police, then in the circumstances as I have narrated them and having regard to the time scale, itis my opinion that the 'prosecutor' has 'unreasonably delayed holding' an identification parade within themeaning of section 10(2)(b) of the 1980 Act.

If the term 'prosecutor' does not include the police then, in my opinion, the procurator fiscal (who is includedin the meaning of the term as defined in section 462(1)) in the circumstances of this case 'has unreasonablydelayed holding' an

1985 S.C.C.R. 339 at 346

identification parade by failing to secure compliance with the instructions to which I have referred. Therequest by the accused to hold an identification parade was made when the trial was adjourned on 1stMarch 1985.

Accordingly, I am satisfied that the statutory conditions set out in section 10(2)(a) and (b) are fulfilled. So faras the terms of section 10(2)(c) are concerned, I noted that the procurator fiscal has all along wanted anidentification parade to be held in this case. The defence also want this. It is clear that identification of theaccused is the main issue in this case. It is a case in which it would be entirely proper to hold anidentification parade. Even if the witnesses refused to attend, it is not an entirely pointless exercise to holdan identification parade because the refusal of any particular witness to attend at a parade, whenrequested to do so by the police, is a legitimate and material matter which can be explored incross-examination at the trial if there was to be a dock identification of the accused. It seems to me that afailure to attend at a specified place and time to view a parade when requested to do so by the police is amore material matter than simply to indicate a refusal to do so.

The actual failure to attend by any witness has not yet occurred. What has been intimated is a statement ofintention to refuse to attend at an identification parade. That expressed intention by the witnesses remainsuntested.

Accordingly, in all the circumstances, I considered, in the exercise of my discretion, that the presentapplication was reasonable and as the conditions set forth in section 10(2) were fulfilled, I granted the prayerof the petition. In view of the date of the adjourned trial, I ordered that the identification parade should takeplace before 31st July 1985.

In my opinion, while the situation which has given rise to the presentation of this petition is unprecedented inthe procurator fiscal depute's experience and may be a situation which does not, in fact, occur regularly, it is,none the less, a situation which could potentially occur in every case especially where the witnessesrequested to attend at an identification parade are frightened or reluctant to do so for whateverreason--legitimate or otherwise.

I accept that there is no statutory basis to compel any person to attend at an identification parade. I notethat the Bryden Working Group recommended at p.41, paragraph 6.39 that 'The attendance of witnesses atparades should not be enforced by statute'. I also observe that the 1980 Act made no such provision.

No doubt the reasons which found favour with the Bryden Working Group at p.26, paragraph 4.28 are sound,and the attendance of witnesses at an identification parade should not generally be enforceable in terms ofa statutory provision. However, I remain of the view that if there is no power to compel witnesses to attend atan identification parade then, in certain cases, the investigation and prosecution of crime may be seriouslyimpaired. It could result, in an extreme case, in proceedings not being taken because of lack of sufficientevidence.

Further, if citizens were to become aware that there was no enforceable legal duty to attend at anidentification parade, then they may refuse to do so not only because of fear, but also because it wasinconvenient for them to attend. The whole object of exercising the right to search an apprehended personfor evidence as to his identity or complicity in crime by compelling him to take his place in an identificationparade would then be defeated.

Further, it may result in cases being proceeded with on the basis of evidence such as that which isapparently available in this case with the result that expense is incurred and the time of the court is taken upto see if a witness or witnesses who have repeatedly refused requests to attend an identification paradewill identify in court.

In my opinion, and with all respect to Crown counsel and the procurator fiscal depute, what was said by LordJustice-Clerk Macdonald in Monson related to a legal duty upon citizens to give their aid either to the Crownor to the defence in every

1985 S.C.C.R. 339 at 347

case where the interests of the public in the punishment of crime or the interests of a person charged withcrime call for ascertainment of the facts (see pp.135-6). I accept that this passage was obiter, but none theless, it is entitled to considerable respect, and I know of no authoritative case in which his Lordship'sstatement has been doubted.

A warrant to cite for precognition may be granted by the court before any charge is brought. The decision inForbes v Main turned on the lack of seriousness of the charge which it was proposed to investigate, but, inthat case, it does not seem to have been doubted that in a very serious case the course taken by theprocurator fiscal was appropriate. Attendance for precognition was a legal obligation which could, in anappropriate case, be enforced by the court prior to any legislation being enacted thereanent.

The decision in Forbes v Main was superseded by the Summary Jurisdiction Act 1908, sections 17 and21--see Macdonald's Criminal Law (5th edn), p.214, but it seems to me that the common law position is thatthe court--certainly the High Court and probably the sheriff court--can on an incidental application presentedin an appropriate case grant warrant to cite a particular witness to attend at a specified date and time at aspecified place for the purpose of viewing an identification parade.

In Henderson v Patrick Thomson Limited, 1911 S.C. 246, Lord President Dunedin said at p.249: 'I havenever heard of a compulsory order in a civil case to submit to precognition. It is practically otherwise in theCriminal Court, but even there it is not, technically speaking, precognition that the lieges must submit to atthe instance of the Lord Advocate or the Procurator-fiscal acting for him; it is examination.'

Accordingly, as a witness by warrant of the court can be submitted to examination by being precognosced onoath, I can see no reason in principle why, in an appropriate case, a witness who has refused without goodand just cause to attend at an identification parade, cannot by warrant of the court at the instance of theLord Advocate or the procurator fiscal be compelled to submit himself to examination at an identificationparade. It does not seem to me, bearing in mind all the safeguards now introduced at identificationparades--such as one-way screens--that this is an unreasonable or unwarranted intrusion into the personalliberty of a person. Indeed, it seems to me that the proper investigation of crime and identification of theperpetrators of crime require that in an appropriate case where a witness or witnesses refuse to attend at anidentification parade their attendance be compelled by the court. The legal duty referred to by LordJustice-Clerk Macdonald is, in my opinion, capable of being enforced by the court.

It is but right to record that neither party cited any authority to me in respect of the position of thecompellability of witnesses to attend at an identification parade. Reference was, however, made to thepassage in Renton and Brown to which I have referred, and the cases therein mentioned.

Accordingly, if contrary to my opinion, the procurator fiscal was correct in her submission that anidentification parade could not be 'held' without witnesses, in my opinion, the failure of the prosecutor topresent an incidental application to the court to grant warrant to cite them to attend after it was known theywould not do so voluntarily, constitutes unreasonable delay in holding an identification parade in thecircumstances of this case, and I would still have granted the prayer of the petition.

1985 S.C.C.R. 339

COMMENTARY

Whether or not the sheriff is correct in his definition of 'holding an identification parade', it cannotbe said that the Crown have tried to hold one unless they have at least organised a line-up at aparticular time and place to which witnesses have been asked to come.

1985 S.C.C.R. 339 at 348

The reason given by Bryden for rejecting a suggestion that s.315 of the Criminal Procedure(Scotland) Act 1975 should be extended to give a statutory power to cite witnesses to attend aparade was because 'we had doubts about the value of the evidence of a witness who had beenthe subject of compulsion, and because we felt that this would be a step further towards making theidentification parade part of judicial rather than police procedure' (para. 4.28). With respect,weight of evidence is a matter for the court, and it is difficult to see why citing witnesses to attend aparade makes it any more judicial than holding it in pursuance of a judicial order under s.10.

With respect to the sheriff, I would agree with the Crown that the duty spoken of in Monson ismerely a moral one--that is why there is provision for citing witnesses for precognition.

Section 315 gives the court power to issue a warrant to cite witnesses for precognition whether ornot a charge has been made against anyone. Section 10 can, of course, operate where a complaintis in existence. It does not seem to be too great a straining of language to hold that 'precognition',which can include showing a witness an article and asking if he can identify it, also extends toshowing him a line of men and asking if he can identify any of them. There is probably also acommon law power in the sheriff to issue orders relating to the investigation of crime, and such apower might well include a power to cite to attend an identification parade. In any event, since anidentification parade without witnesses is of very limited value, it may be argued that an orderunder s.10 impliedly empowers the procurator fiscal to cite witnesses to attend, or at least entitleshim to seek an explicit order from the sheriff where witnesses refuse to attend.

In the instant case a parade was held, albeit not within the time set by the sheriff. It was held on2nd August 1985, and the two witnesses who attended did not pick out the accused. When thecase called for trial on 6th August 1985 the Crown accepted a plea of not guilty.

Incidentally, the accused's solicitors' application for a 'section 13(2) certificate' for additional legalaid remuneration reveals that they paid the stand-ins. It is difficult to see on what principle thedefence should pay for a parade which the Crown were ordered to hold.

Wilson v Tudhope

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