Scots juries to get new rights to make judgments on video evidence following landmark appeal ruling

The development came as Lithuanian rapists who shot footage of their sexual abuse of a Scots woman on their mobile phones lost appeals against their convictions.

Legal experts say the case is expected to set a precedent for the future with juries having sanction to run the rule over what video evidence tells them about a case.

Senior judges supported the view of a Canadian Supreme Court which concluded that as long as the footage was of good quality and gives a clear picture of of events and the perpetrator, it "may provide the best evidence" of the identity of a perpetrator.

And Scotland's most senior judge, Lord President, Lord Carloway, who heard the appeals with Lord Justice Clerk, Lady Dorrian, Lord Menzies, Lord Brodie and Lord Turnbull said that once the authenticity of footage or images is established it becomes "real evidence" which a jury or sheriff can use to establish fact, irrespective of concurring or conflicting testimony.

"Even if all the witnesses say that the deceased was stabbed in the conservatory, if CCTV images show that he was shot in the library, then so be it," he said.

Justinas Gubinas (23) and Nerijus Radavicius (30) were both jailed for four and a half years last year for the rape of the intoxicated woman at a remote farmhouse near Fraserburgh, in Aberdeenshire.  Co-accused Ovidijus Kavaliauskas was found guilty of raping the woman while she was asleep.

Justinas Gubinas, Ovidijus Kavaliauskas and Nerijus Radavicius (left to right) were jailed. Source: Police Scotland

Gubinas and Radavicius appealed against their convictions and issues regarding video evidence was referred to a bench of five judges, including Scotland's two most senior judicial figures, the Lord Justice General and the Lord Justice Clerk.

The footage showed the woman in an intoxicated state and at one point in the accompanying audio recording she could be heard saying "no".

During the trial a detective was shown the images and asked to express a view of whether they were consistent with consensual sex taking place during the events of November 1 in 2014.

Defence lawyers maintained that the trial judge, Lord Armstrong, had misdirected the jury by saying they could draw their own conclusions from video footage taken on phones and that it was a miscarriage of justice They said it was wrong for a jury to speculate upon matters which had not been the subject of witness testimony.

But Lord Carloway in deciding there was no miscarriage of justice, said: "The direction to the jury to form a judgment about what the images showed, just as if they would form a judgment about eye witness descriptions of what happened, was correct.

"The statement that the jury could draw their own conclusions about what the images depicted was also correct."

He added: "The fact finder [in court] is free to make such inferences from the audio or video components as would be open to any judge or jury hearing oral testimony descriptive of the same events. This does not convert the fact finder into a witness," he said.

The legal body The Faculty of Advocates, which comprises lawyers who have been admitted to practise as advocates said the it was a "common sense" decision that will have "implications for future trials".

A Faculty of Advocates spokesman added: "It will be for juries to consider the robustness of video images, just as they must also weigh the strength or otherwise of witness evidence."

Ian Cruickshank, convener of the Law Society of Scotland's criminal law committee said "During a trial, the best and most reliable evidence should be admitted, with a view to arriving at a fair and just outcome.

"This important decision recognises that proof of essential facts in criminal trials can be determined by the direct use, and interpretation, of incidents captured by modern recording technology.

"The court has provided welcome clarification on an area of law that has previously been very complex and confirms what is seen on video footage can be direct and best evidence.

"Justice can be supported by digital technology provided always that evidence, in whatever form it is presented, can be properly tested and challenged.

"It should be noted the Appeal Court said in its judgement, that provenance and authenticity must be established. The visual quality of any footage must be sufficient to pass the baseline test of reliability."

Craig Connal QC, litigation partner at Pinsent Masons said it was a "very valuable decision" adding: "Arguably before juries didn't know whether they were meant to make their own minds about what they were shown or listen only to witnesses. [Now they can give] greater weight to their own view of what the [footage] tells them."

Lord Carloway said the judges had considered the sound reasoning of the Canadian Supreme Court decision which he said represented "an enlightened and sensible approach to video or audio recordings".

But the Lord President said that in the rape case seeking evidence from the police officer over whether what was shown in the images was consistent with consensual sex was "illegitimate" and should not have been allowed. The officer was in "no better a position to comment" than a member of the jury.

But he said that although the police officer's evidence on whether the images showed consensual activity should have been excluded, the directions on it were not material and in any event favoured the men.