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HIGH COURT OF JUSTICIARY
[2006] HCJ05
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OPINION OF LORD MACPHAIL
in the cause
HER MAJESTY'S
ADVOCATE
;
against
LEE EVERTON HIGGINS
DAVID GEORGE HENRY SCOTT
ADAM MURPHY
:
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The Crown: Hammond, A.-D.,
Bruce Lockhart; Crown Agent
First accused: Richards, Q.C., Borthwick; George Mathers
& Co., Aberdeen
Second accused: Reilly, Latif; Gavin Bain & Co., Aberdeen
Third accused: Moggach, Rao; Gray & Kellas, Aberdeen
17 May 2006
1. Introduction
[1] The
accused were tried in the High Court at Aberdeen
on an indictment which included a charge of armed robbery. The trial began on 21 March 2006. On
5 April 2006 counsel for the first and second accused stated
objections to the admissibility of evidence which the Crown intended to elicit
from police officers about the contents of conversations between the first and
second accused which the officers had overheard after being posted to listen
outside the adjacent police cells in which the accused had been placed after
being arrested but before being charged.
Counsel for the first and second accused also lodged devolution minutes
relative to the attempt to elicit that evidence and to the alleged
non-disclosure to the defence of the fact that the officers had been instructed
to listen to the conversations. On 11 April 2006, after a trial
within a trial, I sustained the objections to the admissibility of the
evidence. I stated that I would issue a written opinion later.
2. The facts
[2] The
three accused were charged that, inter alia:
"(3) On 27 July 2005 at the Bank of Scotland, 10
Greenwell Road, Aberdeen, you Lee Everton Higgins, David George Henry Scott and
Adam Murphy did, while acting with others and with faces masked, assault
George Andrew Hutcheson, Graham Charles Mitchell and John Lewis
Baker, all c/o Brinks UK Limited, 4 Chanonry Road South, Elgin, force open a
lockfast door there, brandish knives at them, place a knife at the throat of
said John Lewis Baker, strike him on the hand and leg with said knife to his
injury, force him to walk to a security van parked at said Bank, repeatedly
demand money, compel said George Andrew Hutcheson to hand over to you bags
containing money and you did rob said Graham Charles Mitchell,
John Lewis Baker and George Andrew Hutcheson of г187,500.00 of
money."
[3] The
material facts relative to the admissibility of the evidence were not in
dispute. At or about 9.30 p.m. on Wednesday
27 July 2005 the three complainers, who were security guards,
arrived at the bank in a security van with the intention of delivering bags
containing banknotes. Two of the guards
unlocked the door and entered the bank. The
door automatically locked behind them. Thereafter
two or three males suddenly appeared outside, wearing dark clothing and with
their faces masked. One of them kicked
the door open with his booted foot and forced one of the guards to go out to
the security van, holding a knife to his neck. The third guard, who had remained in the van,
passed out bags of money which the assailants loaded into a Renault Laguna car.
The assailants had Liverpool
accents. The car then made off with the
men and the money inside.
[4] At
about 5.30 a.m. on the following
morning, Thursday 28 July 2006,
police officers went to a flat at 15 Boyd Orr Close, Aberdeen,
where they found and detained the first and second accused. It appears that the police believed that these
accused were associated with a second car which had been used in some way to
facilitate the execution of the robbery after the events at the bank. I express the matter tentatively because the
state of the Crown evidence was such that all the accused were ultimately
acquitted when I sustained submissions of no case to answer. It was not possible to discern clearly from
the evidence led what the Crown case was as to what had occurred after the
events at the bank, and in particular as to the role played by the second car
and by each of the accused. In any
event, after the first and second accused were detained at the flat they were
taken to Police Headquarters in Aberdeen
and interviewed. The first accused told
the police at interview that he had in the flat at 15 Boyd Orr Close some
г5,000 in banknotes. He gave them
accurate information about exactly where that money was, and he also gave them
an explanation for his possession of it which did not implicate him in the
crime. Neither accused said anything
incriminating at interview.
[5] Before
their interviews, the two accused had been in cells on different floors of the
cell block in Police Headquarters. The
cell block has three floors. The first
accused had been in cell no. 11 on the middle floor, and the second accused had
been in cell no. 24 on the upper floor. At or about 11.00
a.m. on the morning of 28 July a detective officer approached the
custody sergeant in charge of the cell block, Sergeant Reynolds, with a request
that the first accused should be moved to a cell on the upper floor adjacent to
that of the second accused. The sergeant
asked the reason for the request, and the officer advised him that it was
intended that listeners should be posted outside the cells in the cell
passageway. The sergeant considered that
to be peculiar, and he asked the officer to confirm the situation with the
senior investigating officer (the SIO), who was at that stage of the inquiry
Detective Inspector (now Chief Inspector) Mark Cooper. One of his duties was to oversee the propriety
of the investigation. Thereafter
Detective Sergeant Philip Chapman, who was supporting the SIO in the inquiry
with regard to interviewing tactics and procedure and was acting on DI Cooper's
behalf, advised Sergeant Reynolds that it was indeed intended that listeners
should be posted. Sergeant Reynolds
expressed the opinion that that would be bordering on covert surveillance, but
DS Chapman disagreed and told Sergeant Reynolds that he wanted the two accused
on the same level in close proximity to each other. Accordingly, at 11.29
a.m., after the first accused had been interviewed and arrested but
not charged, he was taken up to cell no. 23 on the top floor in accordance with
DI Cooper's instruction. Cell no. 23 was
next to cell no. 24 which was occupied by the second accused. He also had been interviewed and arrested but
not charged. The placing of the first
accused in cell no. 23 was done deliberately to facilitate conversation between
the two accused and the hearing and noting of any conversation by the listening
officers. There were no other prisoners
on the top floor.
[6] It
had been DS Chapman's idea to place the two accused in adjacent cells and post
listeners to overhear any conversation between them. He suggested this plan to DI Cooper, who had
agreed. DI Cooper had never done such a
thing before, and there was no protocol or policy in Grampian Police governing
any such procedure. The reason the
Detective Inspector gave in evidence for adopting the procedure was that it
would provide an opportunity for him to gain information from the two suspects
about others who might have been involved in the commission of the crime, and
about the whereabouts of the stolen money. He had also understood that weapons might have
been involved in the commission of the crime. He agreed in cross-examination that if the two
suspects were to incriminate themselves, that would be so much the better. DS Chapman stated that he had made the
suggestion to post listeners because of the amount of money stolen and the fact
that only two persons were in custody. He
also said that he did not know that the first accused had said in his interview
that he had г5,000 in banknotes in the flat at 15 Boyd Orr Close.
[7] I
now make two findings in fact about the decision to place the accused in
adjacent cells and post listeners. The
first relates to the Regulation of Investigatory Powers (Scotland)
Act 2000 (RIPSA) and the code of practice entitled Covert Surveillance: Code of Practice which I shall discuss
later. It is unfortunate that at the
trial-within-a-trial neither Chief Inspector Cooper nor any of the other
officers was asked whether they had given any thought to RIPSA or the Code of
Practice. The Advocate Depute did not
provide any explanation or justification of the failure to observe the
requirements of the Act and the Code. I
must therefore find that they were disregarded for reasons which remain
obscure.
[8] Secondly,
as to the reasons for the decision to place the accused in adjacent cells and
post listeners, I find it to be probable that the reasons were (1) that the
accused might incriminate themselves and (2) that they would provide further
information about the identities of those involved in the commission of the
crime and about the whereabouts of the money. I do not accept that the officers regarded the
utterance by the accused of self-incriminating statements as a bonus that might
be added to information about the culprits and the money. Both accused had been unhelpful to the police
at interview, and the reasons the police had for linking them with the crime
appear to have been few. It is probable
that the hope that these two unco-operative accused would strengthen the case
against themselves by making self‑incriminating statements was at least
as strong as the hope that they would provide information about the identity of
their supposed accomplices and the whereabouts of the money.
[9] I
now resume the narrative of the events of Thursday 28 July 2006. The decision to post listeners having been
taken, DS Chapman instructed another officer, DS Coutts, to go to the cell
block with another officer and to take up positions outside cells nos. 23 and
24, remain concealed and quiet, and listen to what was being said. DS Coutts took DC Clark with him. They listened outside the cells from 12.45 p.m. to 12.57
p.m. and again from 2.08 p.m.
to 2.50 p.m. The two accused did not
know the officers were there. There was
a notice warning the occupants of the cells that CCTV was in operation and they
were liable to be seen, but there was no notice warning them that they were
liable to be heard. During the two
periods mentioned, they made remarks which the officers overheard and which DS
Coutts noted in his notebook. The
remarks included statements by each accused on which the Crown intended to
found at the trial as showing or tending to show that he was implicated in the
crime. It was not suggested by the
defence that the statements had not been made. The statements were open to interpretation as
indicating that they had told, or were preparing to tell, to the police
untruths about the selling of the second car before the robbery and about the
source of the money that had been in the first accused's possession in the
flat. The accused did not otherwise disclose
that they had played any part in the commission of the crime, and they did not
disclose who had committed it or the whereabouts of the money.
[10] Later that day, each of the two accused was interviewed again
and charged with the crime. Neither was
asked anything about the statements which had been overheard. The first accused was charged at or about 10.35 p.m., and the second accused at or about
11.56 p.m.
3. Submissions
[11] Counsel for the first accused submitted that the test of
admissibility was one of fairness: Chalmers
v H M Advocate 1954 JC 66; Brown v H M Advocate 1966 SLT 105; H
M Advocate v Graham 1991 SCCR 56.
English authorities were not relevant. In the present case, the rules of fair dealing
had been flagrantly disregarded and the accused had made their remarks as the
result of a trap: O'Donnell v H M Advocate 1975 SLT (Sh
Ct) 22; Jamieson
v Annan 1988 SCCR 278. They had not been warned that they might be
listened to. The eavesdropping had not
been in accordance with law, as in Dudley v H M Advocate 2003 JC 53. Reference was also made to Khan v UK (2001) 31 EHRR 1016. The provisions of RIPSA had apparently never
been considered. The crime being
investigated did not have any special features which might have been prayed in
aid to justify the eavesdropping: it was an unsophisticated bank robbery. It was significant that the police at the
subsequent interviews had not asked the accused about the statements which had
been overheard.
[12] Counsel for the second accused undertook a detailed survey of
the development of the law. In addition
to the authorities cited by counsel for the first accused, he referred to Hume,
ii, 333-335; Alison, ii, 535-536; A M
Anderson, The Criminal Law of
Scotland (1892) pp 248-249; W G Dickson, The Law of Evidence in Scotland (3rd edn, 1887 ed P J
Hamilton Grierson) para 348; J H A Macdonald, The Criminal Law of Scotland (5th
edn, 1948 ed J Walker and D J Stevenson) pp 313-314; A G Walker and N
M L Walker, The Law of Evidence in
Scotland (2nd edn, 2000
ed M L Ross with J Chalmers) paras 37-39; H
M Advocate v Martin and Robb (1842)
1 Broun 382; H M Advocate v Christie or Paterson (1842) 1 Broun
388; Kerr v Mackay (1853) 1 Irv 213; H M
Advocate v Turner and Rennie (1853)
1 Irv 284; H M Advocate v Hay (1858) 3 Irv 181; H M Advocate v Grant (1862) 4 Irv 183; H M
Advocate v Graham (1876) 3 Coup
217; Gracie v Stuart (1884) 11 R (J) 22; H
M Advocate v Smith (1901) 3 Adam
475; Russell v Paton (1902) 3 Adam 639; Cook
v McNeill (1906) 5 Adam 47; H M Advocate v Duff (1910) 6 Adam 248; Leavack
v Macleod 1913 SC (J) 51; Hodgson v Macpherson 1913 SC (J) 68; Waddell
v Kinnaird 1922 JC 40; H M
Advocate v Keen 1926 JC 1; and H M Advocate v Campbell 1964 JC 80. On the subject of disclosure, counsel referred
to R v Bailey [1993] 3 All E R 513; McLeod
v H M Advocate (No 2) 1998 JC 67;
R v Brown [1998] AC 367; R v Loosely [2001] 1 WLR 2060; Pringle v R [2003] UKPC 9; Benedetto v R [2003] UKPC 27, [2003] 1 WLR 1545; R v H [2004] UKHL 3,
[2004] 2 AC 134; Sinclair v H M Advocate 2005 PC 28; Holland
v H M Advocate 2005 PC 3 and a
decision of the Supreme Court of Canada, R
v O'Connor [1995] 4 SCR 411.
[13] Counsel for the second accused submitted that the requirements
of the European Convention on Human Rights (ECHR) and of RIPSA should now be
superimposed upon the effect of the authorities of the common law relative to
the admissibility of statements made by the accused. The failure to observe the requirements of
RIPSA meant that there had been a breach of the accused's rights under Article
8 of the ECHR. Article 6 and Article 8
were entirely inseparable. There had
also been a failure by the Crown to disclose the fact that the officers who had
overheard the statements by the accused in the cells had been instructed to
listen for and record any conversation between them. The Lord Advocate had no power to act in a
manner incompatible with the rights of the accused under Articles 6 and 8.
[14] The Advocate Depute accepted that it was for the Crown to
satisfy the Court on a balance of probabilities that the statements made by the
accused in the cells had been fairly obtained: otherwise, they would fall to be
excluded. He did not dispute that the
posting of the listeners had been a deliberate tactic on the part of the
police: there had been no question of accidental overhearing. Part of the
purpose of the exercise had been to investigate the crime with a view to
identifying the other persons involved and the whereabouts of a substantial
amount of money. The statements made by
the accused in the cells had been voluntary, gratuitous and unprovoked; they
had not been elicited by deception or questioning; and they had been
spontaneous and unprompted. The officers
had been passive eavesdroppers. This was
a circumstantial case in which there was not a superabundance of evidence. Times had changed, and some of the older cases
were now of limited value. There had
been a breach of Article 8, but given the passive nature of the officers'
actings, the Court should be satisfied that the leading of the evidence of the
statements would not deprive the accused of a fair trial in terms of Article 6. The Advocate Depute referred to the Police
(Scotland) Act 1967, Section 17; R v Stewart [1970] 1 WLR 907; R v
Bailey [1993] 3 All E R 513; R v Mason [2002] 2 Cr App R 628, [2002] EWCA Crim 385; Allan v UK (2002) 36 EHRR 143; R v
Grant [2006] QB 60, [2005] EWCA Crim 1089; Henderson v H M Advocate 2005
JC 301; and Lawrie v Muir 1950 JC 301.
[15] On the issue of non-disclosure, the Advocate Depute conceded
that the disclosure in the police statements of the circumstances in which they
had come to overhear the conversations of the accused might have been more
specific. It was readily apparent,
however, from DS Coutts's notebook which had been disclosed to the defence and
lodged as a production that the recording of the conversations had taken place
over a period of time. It did not
suggest that there had been casual overhearing. In any event the whole circumstances had now
been disclosed as a result of the precognition of the officers in the course of
the trial.
4. Discussion
The
devolution minutes
[16] I shall begin by considering the two issues raised in the
devolution minutes for the first and second accused. I deal first with the issue of non-disclosure.
It was not until after the trial had
started that it became apparent to those advising the first and second accused
that the police had made a tactical decision to place these accused in adjacent
cells and to post officers to hear and record any conversation between them. Before the trial there had been disclosed to
the defence copies of the entries in DS Coutts's notebook and of
statements by DS Coutts and DC Clark. Nowhere
in these documents is it said that the two accused had been deliberately placed
in adjacent cells and that the officers had been instructed to listen to and
write down their conversation. No doubt
the instruction, although not the cell placement, might have been inferred by a
reader who was alert to the possibility that such an instruction might have
been given. But such conduct is so
unusual and so clearly in breach of RIPSA and the Code that the accused's legal
advisers cannot reasonably be faulted for initially failing to realise that
that in fact was what had happened. It
is not impossible that the true position would have been made apparent to all
concerned if the Crown had arranged for the officers to be precognosced, instead of leaving it to them
to compose their own statements. When
the position was eventually made clear in court, I adjourned the trial to
enable all parties to precognosce all the relevant officers. After the adjournment, defence counsel
expressed in court their appreciation of the assistance given them by the
procurator fiscal in attendance at the trial. It is scarcely necessary to point out,
however, that if the circumstances of the recording of the conversations had
been explicitly disclosed before the trial, as they should have been, the
matter would no doubt have been properly investigated and considered by the
defence at that stage. As it was, the
accused's legal advisers were placed in a difficulty and the necessary
adjournment was an unavoidable but inappropriate use of valuable court time. Nevertheless the belated precognition exercise
had the effect of remedying, albeit awkwardly and expensively, the justified defence
complaint of non‑disclosure.
[17] The second issue raised in the devolution minutes is that the
act of the Crown in seeking a conviction of the accused based on the evidence
of the officers is incompatible with each accused's right to a fair trial and
renders the trial unfair. Section 57(2)
of the Scotland Act 1998 provides that a member of the Scottish Executive,
which includes the Lord Advocate, has no power to do anything which is
incompatible with the Convention rights, which include the rights set out in Articles
6 and 8 of the ECHR. As I shall explain
later, the police in this case committed a breach of the rights of each of the
two accused under Article 8. It is clear,
however, from McGibbon v H M Advocate 2004 JC 60 that the act of
the Lord Advocate that is relevant to Section 57(2) is the act of leading
evidence of the contents of the overheard conversations. Whether he is entitled to do so will depend on
whether the infringement of the accused's rights under Article 8 would result
in a breach of Article 6. That question
must be resolved by the application of the test of fairness, the same test that
must be applied at common law when objection is taken to the admissibility of
evidence of statements made by the accused. It is in my opinion superfluous to raise the
matter as a devolution issue, although it is understandable that the defence
chose to do so in the unusual circumstances of this case. I shall therefore confine myself to the
application of the common law test of fairness.
Fairness
[18] In Brown v H M Advocate 1966 SLT 105, Lord
Justice-General Clyde said (at page 107):
"The test, which
time and again has been applied in Scotland to determine a matter of this
nature occurring prior to a suspect being charged with the crime, is whether or
not the proceedings which led up to his statement were fair to him or not."
In H M Advocate v Graham 1991
SCCR 56, Lord Cameron of Lochbroom observed (at page 59B-C):
"No doubt, as
has been said in other cases in looking at the test, fairness will not only
comprehend fairness from the point of view of the accused, but fairness also
from the point of view of the public, who have an interest in the police being
able to investigate crimes and bring to justice those who commit them."
A further consideration of general
importance is that "the courts have a special duty to safeguard suspects,
especially when they are in police stations" (Renton & Brown's Criminal Procedure (6th edn,
paragraph 24-36). The learned editor
cites for that proposition two authorities, Chalmers
v H M Advocate 1954 JC 66 and H M Advocate v Aitken 1926 JC 83. While
these very familiar decisions may be of some age, as the Advocate Depute
observed, the considerations underlying the proposition remain valid: that in
the police station the suspect, who is in an intimidating environment, is at
his most vulnerable, while for the police, who are on their own territory, the
temptations to bend the rules are at their highest.
[19] I do not consider it apposite to cite Lawrie v Muir in the
context of the present issue which is concerned with the admissibility of
statements made by suspects after the commission of the crime. I also do not find it helpful to refer to the
English authorities which have been cited. The law and practice of the two jurisdictions
in this area are very different, and the English decisions are mainly concerned
with the statutory discretion conferred on the courts by Section 78 of the Police
and Criminal Evidence Act 1984, a provision which appears to be most commonly
used in cases where evidence has been obtained in breach of the PACE Codes of
Practice.
[20] I now consider the factors urged on either side of the question
whether the test of fairness has been satisfied. The defence argued that the statements had
been obtained by means of a trap; in breach of RIPSA; and in breach of the
accused's rights under Article 8 of the ECHR. The Crown argued that the statements had been
obtained because of the seriousness of the crime under investigation and the
facts that others had been involved and a large sum of money was missing. The Crown also argued that the statements had
been voluntarily made.
[21] Before the coming into force of RIPSA, the resolution of the
question whether the test of fairness had been met would have been reasonably
straightforward. The common law is
authoritatively stated in these terms in Jamieson
v Annan 1988 JC 62 (at page 64):
"[E]vidence of
an overheard remark made by an accused person while in custody and relating to
a matter relative to the charge on which he is being tried is admissible
provided that the remark is made voluntarily and not as the result of an
inducement or trap."
In my opinion the methods used by the
police in this case can only be described as a trap. The strategy of the police was to facilitate
the making of incriminating statements by each of the accused, who would thus
provide evidence against himself of his commission of the offence when he was
unaware that the police were listening to what he was saying. The technique was deliberately to place the
two accused in adjacent cells on an otherwise unoccupied floor of the cell
block, and to post listeners in the corridor outside to hear and record what
the accused said. The object was to
trick them into believing that they would not be overheard. The trick worked: the accused would not have
spoken as they did if they had known that the officers were listening. In my opinion, accordingly, the application of
the rule in Jamieson v Annan would have resulted in the
exclusion of the evidence because the test of fairness had not been met.
[22] It is now necessary, however, to take account of the provisions
of RIPSA. I did not have the advantage of hearing detailed submissions on
this matter. That is understandable
because the question of the admissibility of the statements had arisen
unexpectedly. RIPSA was referred to only
briefly. I therefore make the following
observations with diffidence. The Act is
concerned with the regulation of, inter
alia, conduct described as "directed surveillance" and "intrusive
surveillance". "Surveillance" includes
"monitoring, observing or listening to persons, their movements, their
conversations or their other activities or communications" and "recording
anything monitored, observed or listened to in the course of surveillance" (Section
31(2)(a), (b)). Both "directed
surveillance" and "intrusive surveillance" are "covert" (Sections 1(2), (3)). Surveillance is covert "if, and only if, it is
carried out in a manner that is calculated to ensure that persons who are
subject to the surveillance are unaware that it is or may be taking place" (Section
1(8)(a)). Such surveillance is lawful if
an authorisation under the Act confers an entitlement to engage in that conduct
on the person whose conduct it is, and that person's conduct is in accordance
with the authorisation (Section 5(1)). Surveillance
which is not so authorised "is unlawful, notwithstanding that what emerges from
that surveillance is evidence implicating the speaker in criminal activity" (Henderson v
H M Advocate 2005 JC 301, Lord Hamilton at paragraph [35]). Guidance on the use of covert surveillance is
provided by the code of practice entitled Covert
Surveillance: Code of Practice which was issued by the Scottish Ministers
under Section 24(1) of RIPSA and brought into force by the Regulation of
Investigatory Powers (Covert Surveillance - Code of Practice) (Scotland) Order
2003 (SSI 2003 No. 183). No reference
was made to the Code of Practice at the trial within a trial.
[23] It is clear that the police subterfuge in this case was a form
of covert surveillance. I did not hear
argument on whether it was "directed" or "intrusive". Surveillance is intrusive if it is covert
surveillance that "(a) is carried out in relation to anything taking place on
any residential premises or in any private vehicle; and (b) involves the
presence of an individual on the premises or in the vehicle or is carried out
by means of a surveillance device" (Section 1(3)). "Residential premises" means "so much of any
premises as is for the time being occupied or used by any person, however
temporarily, for residential purposes or otherwise as living accommodation
(including hotel or prison accommodation that is so occupied or used)" (Section
31(1)). In R v Mason at paragraph
[68] the Court of Appeal (Criminal Division) when considering the equivalent
provision of the Regulation of Investigatory Powers Act 2000 doubted whether
police cells were "residential premises" and stated that it was desirable that
what happened in police cells be treated as intrusive surveillance. I note that paragraph 6.4 of Covert Surveillance: Code of Practice
states that the definition of "residential premises" in Section 31(1) of RIPSA
includes police cells. It follows that
the strategy adopted by the police in the present case amounted to "intrusive
surveillance" and would have been lawful only if it had been authorised in
terms of the Act. The Act provides for
the grant of authorisations in cases of urgency (Section 12). In fact no attempt was made to obtain any
grant of authorisation, for reasons which are unexplained. The statements were accordingly obtained in
breach of the provisions of RIPSA.
[24] As to the admissibility of evidence obtained by unauthorised
surveillance, RIPSA is silent. Paragraph 1.6 of Covert Surveillance: Code of Practice states:
"The
admissibility of evidence obtained through covert surveillance in Scotland
depends on whether evidence has been lawfully and fairly obtained. This will be decided in accordance with
principles of common law."
The learned editor of Renton & Brown's Criminal Procedure (6th
edn) expresses the following opinion (at paragraph 5-21):
"The Act does
not say that surveillance which is not so authorised is unlawful, or that
evidence obtained by unauthorised surveillance is inadmissible, but presumably
that is implied."
As I have noted, Lord Hamilton has
now made it clear in Henderson at paragraph [35] that surveillance
which is not so authorised is unlawful. It appears, however, that evidence obtained by
unauthorised surveillance is not necessarily inadmissible on that account. Lord Hamilton went on to say in Henderson, at
paragraph [36]:
"It is also
important to observe that issues of the admissibility of evidence are primarily
matters for the domestic courts and that a trial may be fair, notwithstanding
that evidence, and crucial evidence, led by the prosecution in it was recovered
on a surveillance which was not based on, or in compliance with, a statutory
scheme (Schenk v Switzerland (1988) 13 EHRR 242 at paragraphs 45-46; Khan v UK (2001) 31 EHRR 45, paragraph 34)."
Henderson was concerned with the admissibility of
contemporaneous evidence of the commission of the crime charged, and not with
the admissibility of statements made by suspects after the crime had been
committed. Henderson makes it clear that in the former
situation the common law principles set out in Lawrie v Muir should be
applied. In the latter situation, as I
have already noted, Lawrie v Muir is not apposite and the test is
that of fairness. It may be possible,
however, to conceive of situations in which evidence of statements by a suspect
might be considered to have been fairly obtained notwithstanding a failure to
comply with RIPSA.
[25] I therefore consider whether the statements in the present case
were fairly obtained notwithstanding the absence of authorisation for the
intrusive surveillance.
It is important to notice that the
surveillance was undertaken after each of the accused had been detained,
interviewed under caution, and arrested. Thus they had been and continued to be subject
to a rigorous regime, consisting of both statutory and common law rules,
governing the detention, treatment and questioning of those in police custody. It was, in my opinion, wholly inconsistent
with that regime that they should have been at the same time subject to
unauthorised covert investigation of this nature with a view to their uttering
statements that would be admissible against them in court. In the circumstances of this case, where no
excuse or explanation has been offered for the failure to observe the
requirements of RIPSA, the unauthorised surveillance must be regarded as a
serious irregularity which not only cannot be condoned but also points strongly
towards the transgression of the principle of fairness.
[26] The Crown relied on the seriousness of the crime and the facts
that others had been involved in its commission and a large sum of money was
missing. There is no doubt that the
crime was sufficiently serious for the prosecution to have been properly
brought in the High Court of Justiciary. The crime of robbing security guards of money,
however, is regrettably not uncommon, and the modus operandi in this case was
not very sophisticated. A large amount
of money had been stolen, but fortunately none of the guards had been seriously
injured. While the offence was clearly
serious, it is necessary when evaluating its gravity to recognise that it had
not been an act of terrorism; no one had been murdered, or assaulted to severe
injury or danger of life; and no woman or child had gone missing or had been
traumatised by an act of sexual violence or abuse. If the conduct of the police in this case were to be condoned by the Court, they
would be entitled to repeat such conduct in many other cases. As to the desire to discover the identity of
the culprits, I have already indicated that in my view that was not the only
reason for the contrivance, and that the police were at least equally hopeful
that the accused would incriminate themselves.
[27] The Crown also argued that the statements had been voluntary
and the listeners had taken the role of a passive listening post. This argument appears to me to be nothing to
the purpose. It is of course true that
the statements were not made in response to questioning, but the ground of
objection is not that they were obtained by improper pressure but that they
were obtained by deception: they would not have been made if the accused had
not been tricked into believing that they would not be overheard. While the listeners may have been passive,
those instructing them had actively and deliberately brought about the
situation in which the statements came to be made and recorded.
5. Result
[28] I therefore sustained the objections to the admissibility of
the evidence.
[29] I did not find it necessary to resort to the ECHR in order to
reach my decision. It is clear that
since the intrusive surveillance was unlawful, it breached the rights of the
accused under Article 8 of the ECHR. Article
8 (Right to respect for private and family life) provides:
"1. Everyone has the right to
respect for his private and family life, his home and his correspondence.
2. There shall be no
interference by a public authority with the exercise of this right except such
as is in accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic well-being of
the country, for the prevention of disorder or crime, for the protection of
health or morals, or for the protection of the rights and freedoms of others."
I understood it to be common ground
that the overhearing by the police of the conversation between the accused was
an interference by a public authority with the exercise by them of the right
conferred on the accused by Article 8, and that that interference was not in
accordance with the law since it had not been authorised in terms of RIPSA. A breach of Article 8, however, does not of itself
give rise to a breach of Article 6 (Right to a fair trial). Lord Hamilton so observed in Henderson at paragraph [36]. His Lordship went on to say, in the passage I
have already quoted, that issues of the admissibility of evidence are primarily
matters for the domestic courts and that a trial may be fair, notwithstanding
that evidence is led which has been recovered by unauthorised surveillance. Again, accordingly, the test is that of
fairness.
[30] After I gave my decision, the Advocate Depute stated that the
Crown would lead no further evidence. After
two joint minutes were read to the jury, the Advocate Depute intimated that he
did not intend to proceed in respect of the other offences charged in the
indictment. I acquitted the accused of
those offences and stated that the trial would proceed only in respect of the
charge of armed robbery. The
Advocate Depute then closed the Crown case. Counsel for each of the three accused made a
no case to answer submission. Having
heard the Advocate Depute in reply, I sustained the submissions and
acquitted the accused.
