A man found guilty of brandishing a knife at two men who came after him with nunchuks and a baton has failed in an appeal against his conviction after claiming the non-availability of CCTV evidence resulted in an “unfair” trial.
The Criminal Appeal Court ruled that there was no “miscarriage of justice” as there was nothing to suggest that there was anything in the CCTV images which was of any relevance to the charge.
The Lord Justice General, Lord Carloway, sitting with Lord Malcolm and Lord Woolman, heard that in March 2016, at Dundee Sheriff Court, the appellant Colin Henderson was sentenced to two years imprisonment after being found guilty of a breach of the peace by conducting himself in a disorderly manner, brandishing a knife at the lieges and lunging at persons with it, in an incident in the Victoria Bar in Dundee.
The Note of Appeal narrated that the appellant’s law agent had requested CCTV images prior to the trial, but that the police or the Crown had destroyed them either because they were of “no evidential value” or because they were “unclear”.
The appellant founded upon the terms of a memorandum dated 20 October 2015 and, in particular, the failure by the police to retrieve the CCTV images.
Reference was made to the subsequent memorandum, dated 19 January 2016, reporting what had happened in more detail and making reference to certain stills.
A different view
The appellant maintained that he had a right to have disclosed to him material necessary for the “proper preparation and presentation of his defence”.
It was argued that he and his law agents might have taken a “different view” of the CCTV images from that of the police.
There were two questions: first, was the material which had been “withheld” something which ought to have been disclosed?; and secondly, what remedy ought to be afforded for that in the context of a potential violation of the appellant’s Article 6 rights?
The test in a non-disclosure appeal was whether a jury might have reached a “different verdict” had they been aware of the withheld information.
The appellant had been given “no opportunity” of considering the CCTV images, because of the “failure to disclose” and in these unusual circumstances, there had been a miscarriage of justice.
The Crown submitted that no unfairness had occurred.
The advocate depute noted that the CCTV issue had not been raised at the trial, in the sense of the loss of the images having any legal consequence.
The failure to disclose material did not render a trial automatically unfair, it was argued.
Further, it was submitted that the CCTV images had not contained anything relevant and there had been other evidence from independent witnesses about what had occurred both outside and inside the pub and the jury had had an opportunity to assess all of that evidence.
Refusing the appeal, the judges said they were not satisfied that any miscarriage of justice had occurred.
Delivering the opinion of the court, the Lord Justice General said: “The police had viewed certain CCTV images, but had formed the view that they were not relevant to the case. They did not show the incident or the events leading up to it.
“Accordingly, they did not forward them to the prosecutor under the disclosure regime set out in the Criminal Justice and Licensing (Scotland) Act 2010 (s 117(1)). There was no obligation consequently on the prosecutor to disclose that information (s 118), as it had never been in the prosecutor’s hands.
“The appellant wished to view the CCTV images, notwithstanding the police view as to their content. However, by the time he made any reference to specific CCTV images taken outside the bar, they had been lost and could not be recovered.”
Lord Carloway added: “The court is not persuaded, from the information it now has, including the memorandum relating to the stills, that there was anything in the CCTV images which was of any relevance to the charge. Indeed, this was candidly accepted on the appellant’s behalf during the course of the appeal hearing. To suggest otherwise would have been entirely speculative.
“There is therefore no basis for considering that the production of the CCTV images or the stills would have made any difference to the verdict of the jury, who were able to hear testimony about what happened from a number of eye-witnesses. They were able to weigh that evidence against the contrary account given by the appellant.”