It is only now that an attempt has been made actually to outlaw the practice as unfair and unreliable. The Court of Criminal Appeal, however, rejected the criticisms, insisting that the system had built-in protections which guarded against miscarriages of justice.
The judges said it should be for a jury to decide what to make of the evidence, not for the law to ban it being heard. The case which brought the issue to the fore involved a man, James Holland, 33, who was convicted of taking part in two armed robberies; one on a disabled couple in their home and the other on the manager of a shop. He was jailed for nine years.
The woman who was attacked in the first incident, and the shop manager, each picked out Holland from police photographs in the early stages of the inquiries. Later, they attended identification parades, but both identified two stand-ins. When Holland went to trial, the woman and the manager positively identified him as being one of the robbers in each incident.
The “dock identifications” were crucial to the prosecution’s case against him. Disquiet about such convictions had been simmering for some time, and it was decided to use the Holland case, while others waited in the wings, to mount a general challenge to “dock IDs”. The question was whether there would be greater success in persuading the judges than there had previously been in convincing the law-makers that something needed to be done.
As far back as 1975, the Thomson Committee, which examined trial procedures in Scotland, considered the problem and concluded that identification at a parade should be preferred to identification in court. It recommended that if a witness failed to identify at a parade, the Crown should not be allowed to ask the witness to identify in court. Parliament, however, never implemented the recommendation.
The following year, it was decided in England, in the wake of cases where misidentification had led to a miscarriage of justice, that “dock IDs” should be allowed only in the most exceptional of circumstances.
In the Holland appeal, it was argued that dock identification was unfair, it being obvious in court, unlike at an identification parade, who was the accused person. Margaret Scott, QC, one of the most respected appeal lawyers, submitted that in future, only evidence of identification made before a trial should be admissible.
Lord Gill, the Lord Justice-Clerk, said: “The submission for the appellant challenges a fundamental and long-standing feature of Scottish criminal procedure. If it is correct, the practice of dock identification has been unfair to the accused, whenever it has occurred, for at least two centuries.
“On the numerous occasions on which it has considered dock identification in recent years, this court has never considered that possibility. On the contrary, this court has treated the practice as an essential feature of our procedure. That, of course, does not mean that the submission is necessarily unsound.
“The essential question is whether an identification of the accused is, by the mere fact that it is made when he is in the dock, unfair in every case, no matter the circumstances and no matter that the witness may genuinely recognise the accused and would do so wherever he saw him.”