In a significant endorsement of the English approach to CCTV evidence by the Scottish courts, appeals by two men convicted of rape and sexual assault at the High Court of Justiciary in Aberdeen in April 2016 have been refused by the Appeals Court in Edinburgh. 

In its’ judgement, the five-judge bench in Justinas Gubinas and Nerijus Radavicius v HMA, 2017 HCJAC 59 gave full consideration to the treatment of CCTV evidence in other UK and Commonwealth jurisdictions, resulting in a decision which clarified the Scottish approach and appears to have progressed Scots Law to a position more aligned with that of England and Wales. 

The appeals were being considered on the basis of submissions by the appellants that in Scots Law, the jury is not entitled to consider CCTV as standalone evidence without the oral testimony of a witness speaking to its contents. This was stated as differing from the approach in England and Wales where it is said the images should speak 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). (para 11) 

Treatment of CCTV Evidence in England & Wales

The treatment of CCTV evidence in England and Wales was considered extensively throughout the judgement, citing that the position in this jurisdiction was codified in Attorney General’s Reference (No. 2 of 2002) [2003] 1 Cr App R 21 (p 321). 

The Advocate Depute made oral submissions citing the English case of Clare and Peach [1995] 2 Cr App R 333, which asserted that there was a need for “evidential practice to evolve to accommodate unfamiliar material’. (para 23)

The Scottish court considered the evolution of this area of law in England and Wales throughout the 1980s and 1990s, culminating in all authorities being reviewed by the Court of Appeal in Attorney General’s Reference (No. 2 of 2002). Lord Carloway affirmed that the Appeal court in Scotland agreed with the approach taken in this case, asserting that if the image is sufficiently clear, the jury is entitled to compare it to the accused in court. Alternatively, a person who knows an accused can identify him from an image, or a police officer who has studied the image and acquired special knowledge which the jury may not attain in the course of a trial can give comparison evidence if necessary. Essentially, the court agreed with the English approach as sufficient to allow a jury to conclude that the identity of the accused as the perpetrator of a crime has been proved by the Crown. (Para 64)

It remains to be seen if this decision will affect the approach to CCTV evidence in England and Wales. It may be that given the apparent alignment between jurisdictions, lawyers in England and Wales should now be keeping a closer eye on the emerging jurisprudence and developments from our neighbours in other jurisdictions on this issue to assess arguments and submissions employed and their potential impact.

Mark Kelly Criminal Barrister in London, UK

My professional experience, approachability and considerable expertise means that you will be in a very safe pair of hands when it comes to your defence, and my track record is second to none. I consistently obtain favourable results for clients accused of a variety of fraud, sexual offences, and financial and regulatory cases.

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