CCTV evidence can be sufficient proof of offence: Appeal Court
CCTV evidence of the commission of an offence, if properly established by corroborated evidence, is real evidence and can itself be sufficient for proof, the Criminal Appeal Court has held.
In a case referred from the Sheriff Appeal Court, Lord Justice Clerk Lady Dorrian, Lord Drummond Young and Lord Turnbull ruled that whereas evidence of police officers who viewed the footage was descriptive only and did not corroborate the footage, if the footage captured the actus reus (factual basis) of an offence and its provenance was established, the footage alone could constitute sufficient evidence of the actus reus.
The question arose in an appeal by Jacqueline Shuttleton, who was convicted of a charge of careless driving in Glasgow on the basis of CCTV footage that showed her car indicate to turn left before suddenly turning right, into the path of a following vehicle. The provenance of the footage was not challenged on appeal; the justice, on being satisfied as to provenance, considered that the footage thereby became real evidence which was then available as proof of fact, following Gubinas and Radivicius v HM Advocate (2017).
On the accused's appeal, the Sheriff Appeal Court considered it “at least arguable that Gubinas and Radavicius suggests that a corroborated case can be established on the basis of a single piece of CCTV alone, where the provenance of the CCTV is properly established”. This being an issue which arose regularly before the Sheriff Appeal Court, it decided to make the reference to the High Court.
The appellant argued that Gubinas had not removed the central requirement of corroboration the court had made it clear that the CCTV footage was but one source of evidence, comparable to a witness speaking to events seen or heard, which did not suggest that the evidence was available as corroborated proof of fact.
Lady Dorrian said it was "clear from Gubinas that as long as the provenance of the recording is proved by corroborated evidence, or otherwise properly established, the content of the recording becomes proof of fact of the events shown thereon" (para 56). This principle "applies equally to identification, but there is one major difference: proof of identification necessarily relies upon comparison. For that reason alone, where a photograph is used for comparison purposes, the provenance of the photograph must also be established".
The recognition that the footage constituted real evidence was the key to understanding its status. "It is the provenance of the real evidence, not its substance, which must be proved by corroborated evidence; the finding of a fingerprint; or of DNA; or in the case of CCTV footage, proof that the footage is a recording of the event which gives rise to the charge. It is in my view misleading to talk of corroboration in the conventional sense when referring to real evidence, or to refer to it as 'self-corroborating'."
The analogy with fingerprint or DNA evidence, made in Gubinas, was a sound one. "There are many cases in which the sole evidence implicating an accused person in the commission of an offence comes from a fingerprint alone, additional evidence being required merely to carry out the comparison exercise. It is the real evidence of the fingerprint itself which provides proof of the accused as the perpetrator of the offence, and no 'corroboration' of that is required."
Both other judges agreed, Lord Drummond Young commenting: "In assessing the substance of real evidence, the concept of corroboration is essentially meaningless... This does not merely extend to identification of the accused as the perpetrator; it also extends to the actus reus that is alleged in the charge. Thus in the present case, once the provenance of the CCTV recording had been established by sufficient evidence, the justice was entitled to examine it to determine whether it disclosed driving without due care and attention without reasonable consideration for other persons using the road... So far as that exercise is concerned, no corroborative evidence was required: the justice was able to see what actually happened in the CCTV recording."