Scottish High Court of Justiciary Decisons

Eo die, their Lordships made avizandum.

At advising, on 20th March 1991,—

LORD JUSTICE-CLERK (Ross) .—The appellant went to trial in the sheriff court at Glasgow on a complaint containing three charges. He was found guilty of charges (1) and (2) and not guilty of charge (3). Charges (1) and (2) were in the following terms: [his Lordship quoted the terms of the charges as set out supra and continued thereafter].

The appellant has appealed against his conviction, and the principal ground of appeal is that the sheriff erred in repelling an objection to the admissibility of evidence from police officers concerning the supply of cannabis resin to Detective Constable Dinnen as libelled in charge (1). As evidence regarding this transaction was also relevant to charge (2) it was submitted on behalf of the appellant that if the evidence was held to be inadmissible then there was insufficient evidence in law to justify the appellant being convicted of either charge (1) or charge (2). There are three questions in the case dealing with the admissibility of the evidence objected to, and the sufficiency of the evidence in relation to both charge (1) and charge (2).

The sheriff has set forth the relevant facts in her findings. On Saturday 4th March 1989 a number of police officers in plain clothes went to the street where the appellant lived. The police had reasonable grounds for suspecting that controlled drugs were in the possession of a person on premises there, and had obtained a search warrant in respect of the appellant's flat. It was the police officers' intention to execute the warrant but a discussion on tactics took place and it was decided that it would be difficult to carry out observation on the house without being seen by the occupants, and that in order to ascertain whether anyone was in the house and to establish whether there were illegal drugs in the house, D.C. Dinnen should go to the house and pose as a drugs buyer pretending that he had been sent there by the appellant's brother. At 7 p.m. on said date Detective Constable Dinnen, accompanied by a detective sergeant, then entered the close at 52 Smeaton Street. The appellant's house was on the ground floor right on entering the close, and Detective Sergeant Thom who had the search warrant in his possession went up part of the stair of the close and waited out of sight round the first corner of the stair. It was his intention to listen to whatever conversation took place at the door of the house. Finding (3) is in the following terms:—

"(3). D.C. Dinnen rattled the letter box. A female came to the door and he asked her, ‘Is Charlie in? I was told I would get some hash’. She asked him who had sent him and he replied that he had been over at Charlie's brother's and that he had sent him. The female walked back into the house and called, ‘Charlie’. The appellant came to the door and asked D.C. Dinnen what he was wanting. D.C. Dinnen's reply was, ‘A half half quarter’. The appellant told him to wait there and he went back into the house. After a few seconds the appellant returned and gave D.C. Dinnen a piece of a resinous substance which looked like cannabis resin. In payment D.C. Dinnen gave him a ten pound note which he had previously marked with his initials. The appellant said he had no change and went back into the house. He returned and gave D.C. Dinnen two pound notes. D.C. Dinnen then left the close and returned to his colleagues along with D.S. Thom."

In subsequent findings it is stated that at 7.15 p.m. the police officers went to the appellant's house with the intention of executing the search warrant. They were admitted to the house and the appellant was shown and allowed to read the search warrant. Lying on top of the fire in the living room was one piece of resinous material and a polythene bag containing seven pieces of resinous material. On a personal search of the appellant the ten pound note marked by D.C. Dinnen was found together with the sum of £6. The appellant was cautioned and was told it was suspected the pieces of substance found were cannabis resin and he replied, "That's all I've got". He was further cautioned and shown the items found in the course of the search and replied, "It's all my stuff". While the police were there there was a knock on the door and three males were admitted, one of whom was in possession of £8. The pieces of resinous material were all analysed and found to be cannabis resin. The piece handed to D.C. Dinnen weighed 1.230 grammes. The piece found on the fire in the living room in the house weighed 0.956 grammes. The seven pieces found in the polythene bag on the fire of the living room weighed amounts varying from 0.323 grammes to 2.850 grammes. In her note the sheriff tells us that the total amount including the drugs found in the house and the piece handed to D.C. Dinnen was 12.3 grammes.

In the course of the evidence of D.C. Dinnen an objection was taken to evidence about the terms of the conversation at the door of the house. The sheriff allowed the evidence under reservation, and she tells us that the point was not subsequently argued. However at the end of D.C. Dinnen's evidence a further objection was taken to the admissibility of evidence as to what had taken place at the door of the house when D.C. Dinnen purchased cannabis resin from the appellant on the ground that the police officers had acted unfairly since by means of duplicity they had induced the appellant to commit a crime, and that being in possession of a search warrant and therefore having reasonable grounds for suspicion, the police officer ought to have cautioned the appellant before asking for drugs. At the conclusion of the Crown case, the appellant's solicitor made a motion of no case to answer in terms of sec. 345A of the Criminal Procedure (Scotland) Act 1975. He repeated his submission that since the police officers had by means of an unfair trick induced the appellant to commit a crime, evidence of replies made by him and anything produced by him were inadmissible. The sheriff was referred to a number of cases including H.M. Advocate v. Harper 1989 S.C.C.R. 472 and she concluded that there had been no unfairness to the appellant. She accordingly repelled the submission upon that ground. She also concluded that although the police officers were in possession of a search warrant, they had not acted improperly or unfairly in the course of D.C. Dinnen's first call at the house.

As regards charge (2), the appellant's solicitor also submitted that there was insufficient evidence since the quantity of cannabis resin found in the house could represent a user's supply for personal use, and that there was accordingly insufficient evidence to justify the accused being convicted of possession of the cannabis resin with intent to supply it to another. D.S. Thom had given evidence to the effect that in his opinion the inference must be drawn that the cannabis resin was a supply intended for sale. Having regard to the evidence of D.S. Thom, the evidence of the finding of the drug in the house, the evidence of the appellant's admissions that the drugs were his, and the evidence of the transaction between him and D.C. Dinnen, the sheriff concluded that there was sufficient evidence to justify conviction of charge (2). She accordingly repelled the submission of no case to answer in respect of charge (2).

Before this court counsel for the appellant submitted that the sheriff had erred in law in admitting evidence of the conversation between the appellant and D.C. Dinnen and the entire transaction between these two persons. His submission was that the evidence was inadmissible as being unfairly obtained. He stressed that the police had reasonable grounds to suspect that someone in the appellant's house had possession of controlled drugs, but he submitted it was unfair of the detective constable to induce the appellant to commit an offence. The police officer had pretended that he had been recommended to call by the appellant's brother; it was unfair to indicate that he wanted drugs; it was unfair to take steps to induce the appellant to incriminate himself; the detective constable was in fact inciting the appellant to commit an offence. Counsel submitted that H.M. Advocate v. Harper which was a case in the sheriff court, had been wrongly decided. The decision in H.M. Advocate v. Harper had been partly based upon Southern Bowling Club Ltd. v. Ross (1902) 4 F. 405, but that was a civil case and not a criminal case. Counsel founded upon H.M. Advocate v. Campbell 1964 J.C. 80. That case concerned the admissibility of a statement made by the accused. It was held that the statement was inadmissible because a police officer was present as an eavesdropper, and no caution was administered to the accused before the statement was made to a newspaper reporter. Counsel submitted that there was no difference in principle between soliciting an admission from a suspect on the one hand and soliciting an act which is incriminating on the other hand.

As regards charge (2), counsel submitted that if evidence relating to the transaction with D.C. Dinnen was excluded, there was then insufficient evidence to justify an inference that the appellant had been in possession of the controlled drugs with intent to supply them to another. He accordingly moved the court to answer the three questions in the case in the negative.

The advocate-depute recognised that this was a very important case because police officers investigating possible contraventions of the provisions of the Misuse of Drugs Act 1971 frequently use the method employed by D.C. Dinnen in this case. The advocate-depute submitted that a number of cases under the Licensing Acts supported the view the police were entitled to use these methods. On the other hand, he also acknowledged that cases relating to the admissibility of statements by accused persons or suspects appear to recognise a different principle. The advocate-depute, however, maintained that it was possible to reconcile the decisions given in these two types of cases, and he urged the court to follow the Licensing Act cases and to hold that there was no unfairness in what the police had done in this case.

The starting point is Southern Bowling Club Ltd. v. Ross . That was a case in which the pursuers sought declarator and interdict upon the ground that it was illegal for the police to enter club premises in disguise for the purpose of detecting whether illegal trafficking in excisable liquor was being carried on. The Lord Justice-Clerk (Macdonald) indicated that decree could not be pronounced because it might prevent the police from doing their duty in many cases in which they would have a proper duty to perform. Lord Young said at p. 415:

"The only way that occurs to me of detecting offences is for the police to employ detectives, and, where a club is suspected of shebeening, the only mode of discovering the truth of the matter is for detectives to go to the club and ask to be supplied with spirits. There is no other mode that occurs to me of detecting the offence, and if these detectives (not being members of the club, and there being no reason on the part of those supplying them with liquor to suppose that they are members of the club) are supplied with liquor, then the offence is detected, and the result of stopping it by a prosecution is attained".

In the reclaiming motion the court adhered to the interlocutor of the Lord Ordinary and the Lord Ordinary is reported as saying at p. 413:

"There is, so far as I know, no statute on the subject. I am not aware of any judicial dictumas to the limits of the devices to which the detective police force may resort in their pursuit of crime".

That case was followed in Marsh v. Johnston 1959 S.L.T. (Notes) 28. That case concerned evidence given by two police officers who had gone to licensed premises, had seen two customers being supplied with excisable liquor after closing time, and had then ordered excisable liquor for themselves from the licence holder. The licence holder was convicted of selling liquor outside permitted hours. He appealed, and his appeal was refused. In the course of delivering his opinion the Lord Justice-General (Clyde) said:

"It may be that in ordering a drink outside permitted hours and in tasting it the police were guilty of a technical offence under the Act, but this was a sheer technicality and was not done to procure the commission of an offence but to detect and confirm that offences were being committed. In the circumstances it does not appear to me that there was anything in the conduct of the police which was in the least improper, still less does it make their evidence incompetent".

Subsequently in his opinion the Lord Justice-General referred to Southern Bowling Club Ltd. v. Ross and observed that where it is suspected that a licence holder is selling liquor outside the permitted hours, it would be difficult to prove such offences unless police evidence of this kind was used. If such evidence were to be regarded as incompetent, there would be a wholesale flouting of the provisions of the Licensing Acts. He added:

"It would have been a very different matter if any unfairness to the complainer had been established. If, for instance, the police had pressed him to commit an offence or had tricked him into committing an offence which he would not otherwise have committed the position would have been quite different".

In the circumstances the Lord Justice-General held that the evidence in question was not in any way unfair. The Lord Justice-General also contrasted that case with the earlier English case of Brannan v. Peek [1948] 1 K.B. 68, in which the policeman concerned had deliberately misled the accused as to who he was in order to induce the accused to accept a better bet laid by the policeman. The conduct of the policeman in that case was held to be grossly unfair and amounted to a trick upon the accused in order to induce him to commit an offence.

Cook v. Skinner and MacDonald v. Skinner 1977 J.C. 9 were also cases where police officers in civilian dress purchased liquor in licensed premises where the conditions of the hotel certificate did not permit the sale. It was held that the evidence obtained by the police officers had been obtained fairly, and that nothing done by them could reasonably be regarded as amounting to a trick upon the appellants or as inciting the appellants to commit an offence. In delivering the opinion of the court the Lord Justice-General (Emslie) said (p. 13):

"It is clear, however, from the decided cases to which we were referred, that where the court has held that evidence has been obtained unfairly there has been established, on the part of the police officers concerned, conduct which clearly amounted to a trick upon the accused, and, in particular, a trick which involved positive deception and pressure, encouragement or inducement to commit an offence which, but for that pressure, encouragement or inducement, would never have been committed at all".

In Cook v. Skinner the Lord Justice-General described the part played by the police officers in the whole transaction as purely passive since the appellant had taken the initiative in the matter of supplying liquor to the police constables at the time. That element was not present in MacDonald v. Skinner but the court still held that there had been no deception on the part of the police and no improper pressure or inducement to lead the appellant to authorise the commission of the offence.

H.M. Advocate v. Harper was a case dealing with the supply of controlled drugs contrary to sec. 4 (3) (a) of the Misuse of Drugs Act 1971. The sheriff followed the Licensing Act cases to which I have referred, and in effect applied them to a case concerning the supply of controlled drugs.

In the course of his submissions counsel for the appellant sought to derive support from H.M. Advocate v. Campbell . As already observed the statement in that case was not made directly to the police officer but was made to a newspaper reporter. Moreover it was the accused who had made the approach to the reporter, and it is difficult to understand why the court held that the statement was not a voluntary statement. In Renton and Brown's Criminal Procedure (5th edn.) the learned editor states that it may be that nowadays the statement would have been admitted having been obtained without any inducement or pressure or the actual making of a false statement to the accused. I agree with him. In my opinion, there is no reason to regard the statement made by the accused in that case as other than a voluntary and spontaneous statement. Moreover it is difficult to reconcile the decision of the Lord Justice-Clerk (Grant) in that case with Hopes and Lavery v. H.M. Advocate 1960 J.C. 104. We were also referred to H.M. Advocate v. Graham 1991 S.C.C.R. 56. On the basis of the limited report that is available, it is difficult to reach any firm conclusion on the soundness of that decision, but the decision may well be justified upon the view that the statement made was not a truly voluntary and spontaneous statement, but was one which the accused was induced to make by the person with whom he was conversing at the time.

So far as making a statement or giving evidence is concerned, it is a well established principle of our law that no man is bound to incriminate himself. Thus a witness is entitled to decline to answer a question if the answer might lead to his conviction of a crime, and he has to be warned that he need not answer such a question. As regards statements made to the police by an accused person or a suspect there is a large body of law dealing with the admissibility of such statements. It is now well recognised that the test is whether what had taken place was fair or not. In Brown v. H.M. Advocate 1966 S.L.T. 105 the Lord Justice-General (Clyde) said at p. 107:

"Questioning by the police, therefore, which is tainted with any element of bullying or pressure or third degree methods designed to secure admissions of guilt by suspected persons prevents the replies being proved in evidence before the jury at the ultimate trial. For, according to our standards of fair play, this would be unjust to the person accused. On the other hand the police have a right, and indeed a duty, to make investigations and to question people in order to find out whether and by whom a crime has been committed, and for the purpose of conducting these investigations to interrogate persons who may be involved. Where exactly the line is to be drawn between legitimate questioning and proceedings which are tainted with undue pressure on or bullying of a person ultimately accused of the crime, may sometimes be a difficult matter. It is not possible to lay down ab ante the precise circumstances in which answers given to the police prior to a charge being made are admissible in evidence at the ultimate trial or where they are inadmissible. This is so much a question of the particular circumstances of each case and those circumstances vary infinitely from one another. But the test in all of them is the simple and intelligible test which has worked well in practice—has what has taken place been fair or not?"

In my opinion that principle of fairness also applies when judging the admissibility of evidence of the kind objected to in the present case. It was submitted to us that at the material time the appellant must have been a suspect, and that accordingly the police would not have been entitled to address questions to him where the answers sought were likely to be incriminating. In my opinion, although the same test of fairness falls to be applied in each of these two situations, statements made to the police in response to questioning may be in a special situation. One reason for that may be that if the police were entitled to interrogate and cross-examine an accused and to adduce evidence of what he had said, the prosecution would in effect be able to make the accused a compellable witness which he is not. (Chalmers v. H.M. Advocate 1954 J.C. 66 per the Lord Justice-General (Lord Cooper) at p. 79).

Where, as here, a police officer poses as a drugs buyer in order to establish whether the accused is dealing in controlled drugs, there is no question of the Crown being able in effect to make the accused a compellable witness. There is no question of the evidence of the police being used as a substitute for the evidence of the accused. On the contrary, the evidence given by the police officers was merely evidence of investigations which they carried out in order to ascertain whether there was dealing in controlled drugs at this house. Admittedly D.C. Dinnen deceived the accused as to his identity. He gave every appearance of being a member of the public and not a police officer. He also deceived the appellant in another respect. In order to establish his bona fides he professed to have been sent to the house by the appellant's brother. Nonetheless apart from representing that he would like to obtain cannabis, he applied no pressure, encouragement or inducement to incite the appellant to commit an offence which he would otherwise not have committed. It might be different if the appellant had appeared reluctant to carry out the transaction, and the police officer had pleaded with him to do so. Again it might have been different if the appellant had indicated that he was not in the habit of carrying out such transactions or that he had never sold drugs before in this way. But there was no such suggestion in the evidence, and the only reasonable inference from the evidence is that the appellant was prepared to supply controlled drugs to callers always provided that the callers could offer some colourable explanation for having come to his door for that purpose. There is nothing at all in the findings to suggest that supplying drugs was something which the appellant would never have done but for the approach made to him by the police officer. Accordingly, applying the test of fairness as it was described in Cook v. Skinner I am of opinion that the conduct of D.C. Dinnen did not amount to an unfair trick upon the accused. Moreover, even though there was an element of deception in the two respects already described, I am satisfied on the findings that there was no pressure, encouragement or inducement to commit an offence which the appellant would never otherwise have been committing at all. I regard the present case as one like Marsh v. Johnston 1959 S.L.T. (Notes) 28 where what the police were doing was not so much procuring the commission of an offence as seeking to detect and confirm that offences were being committed at this address at the material time. I am accordingly satisfied that the sheriff was well-founded in repelling the objection taken to the evidence.

I did not understand counsel for the appellant to repeat the submission made to the sheriff to the effect that the police officers were obliged to execute the search warrant instead of taking steps to ascertain whether anyone was in the house and to establish whether there were illegal drugs there. Having regard to the fact that the police officers concluded that it would be difficult to carry out observations on the house, I am satisfied that they were entitled to take the steps which they did take. For the foregoing reasons I am also satisfied that there was sufficient evidence to justify the conviction of the appellant of charge (1).

So far as charge (2) is concerned I am satisfied also that there was sufficient evidence to justify conviction. Apart from the evidence of D.S. Thom to the effect that the amount of the controlled drug and the way in which it was packaged suggested that these items were a supply intended for sale, the evidence of the transaction between the appellant and D.C. Dinnen shows that the appellant was engaged in selling controlled drugs that day.

In these circumstances I would move your Lordships to answer the three questions in the case in the affirmative and to refuse the appeal.

LORD MORISON .—If a policeman suspects that a person is dealing with drugs, I see nothing inherently unfair in his asking that person to supply him with a quantity of that substance in order to confirm his suspicion. As was observed by Lord Young in Southern Bowling Club Ltd. v. Ross (1902) 4 F. 405 at p. 415, the request is a method of discovering the truth and of obtaining the result of stopping commission of an offence by prosecution. The procedure necessarily involves an element of deception in the concealment by the policeman of his true identity. As the Lord Justice-Clerk (Macdonald) expressed it in the same case; the persons making the request must be "disguised so that they might not be known as emissaries of the police". According to the circumstances of the case, this deception may also necessarily involve that the policeman provides some verbal indication that he is the kind of person that he is pretending to be. Such an indication was given by D.C. Dinnen in the present case when, on being questioned as to who had sent him, he gave a name which apparently satisfied the appellant that he was a bona fidecustomer. By doing so he was not in my opinion doing anything which went beyond the necessary pretence that he was a person to whom drugs could be supplied without risk of prosecution.

But although deception as to the policeman's true identity was involved, that deception cannot reasonably be regarded as having induced the commission of the crime of supply, if the supply was one which would in any event have taken place as a result of a request by a genuine customer. The criminality of the appellant's act lay in the fact that he supplied drugs to another, not that he did so to someone who turned out to be a policeman. That essential feature of the crime was not one which resulted from any undue pressure or persuasion on the part of the policeman. It was a purely voluntary act on the part of the appellant. The appellant was not tricked into doing something which he would not ordinarily do. I see no reason in principle to exclude evidence of the act merely because the appellant thought that he was dealing with an authentic customer. His criminal behaviour was induced not by the deception, but by the fact that he was a person willing to supply drugs on request to anybody in whom he had confidence.

This view is directly supported by the authority of this court in the case of MacDonald v. Skinner 1977 J.C. 9 which followed the similar case of Marsh v. Johnston 1959 S.L.T. (Notes) 28. In the case of MacDonald policemen posing as ordinary customers asked for and obtained alcoholic drinks after hours, with the permission of the licensee. For the licensee it was submitted that the offence had been committed at the instigation of the police. It was held that there was no substance in the submission that evidence of the sale had been unfairly obtained, there having been no deception on the part of the police and no improper pressure or inducement to lead the licensee to authorise the commission of the offence. I can see no ground for distinguishing that case from the present, or for reconsidering whether it was correctly decided.

On behalf of the appellant it was submitted that the evidence of self-incriminating conduct by the accused in the present case was analagous to evidence of self-incriminating statements made by a person under suspicion which would be held as unfairly obtained and inadmissible in the absence of a caution given to the accused before he made the statement. Even if the comparison were a valid one, I should prefer to rely on the direct authority to which I have referred rather than on inference from cases dealing with the admissibility of extra-judicial statements, a field in which the law has developed separately from that concerned with the question whether a crime has been induced by unfair conduct.

However in spite of the advocate-depute's apparent acceptance of the validity of the comparison, I do not regard it as apt to provide assistance in the circumstances of the present case. Cases in which evidence of a self-incriminating statement has been held inadmissible have proceeded on the basis that the statement could not be affirmed as truly a voluntary one: Tonge v. H.M. Advocate 1982 J.C. 130. This may be either because the circumstances or pressures were such as to induce the making of the statement, or because the accused's decision to make it was taken in the absence of a caution which would have made it clear to him that he had a right to remain silent, and that if he did not do so evidence of what he said might be used against him. It was the absence of such a caution which was held in the case cited on behalf of the appellant, H.M. Advocate v. Campbell 1964 J.C. 80, to render the statement inadmissible as having been improperly obtained. It is unfair to elicit a statement from a suspect, if he has not been cautioned that he is not required to make it.

But it is well-established that it is not unfair for a policeman to question a suspect if he has observed safeguards which are necessary for securing that the statement is truly voluntary. Although a suspect must be informed of his right to remain silent because he may be in ignorance of that right and the possible consequences of his failure to exercise it, there is no obligation imposed on the questioner to advise the suspect not to incriminate himself, and it would hinder the ascertainment of the truth if such an obligation existed. The considerations which apply to the questioning of a suspect therefore have no application to the circumstances of the present case. For the reasons which I have mentioned, the appellant's self-incriminating conduct was voluntary and not induced by any pressure on the part of the police. Although it is necessary to inform a suspect of his right to remain silent because he may be in ignorance of that right, it is not in my opinion necessary to inform him that he is entitled to refrain from committing a criminal offence nor to advise him that if he commits one he may be prosecuted for it. There is no unfairness on the part of the police in their failing to point out the obvious, and cases dealing with the absence of a caution in the terms in which it is usually given are not therefore in point. The analogy proceeds upon a misunderstanding of the nature of the caution which fairness requires should be given before a statement is elicited.

The prevention of crime would clearly be hindered if the police were prohibited from adopting the procedure which they adopted in the present case. Both as a matter of principle and on the basis of authority I consider it clear that they are entitled to adopt it. I would answer the questions as proposed by your Lordship in the chair.

LORD CAPLAN .—On 19th October 1990 the appellant was found guilty at Glasgow Sheriff Court after trial of two offences under the Misuse of Drugs Act 1971. In particular he was found guilty of the first charge in the complaint where the offence was that of supplying cannabis resin to P.C. James Dinnen in contravention of secs. 4 (3) (a) and 25 of the said Act and of charge (2) where the offence was that of possessing cannabis resin with intent to supply it in contravention of secs. 5 (3) and 25 of the Act. In terms of the sheriff's findings-in-fact the police had suspected that controlled drugs were on the premises occupied by the appellant at 52 Smeaton Street, Glasgow and had obtained a warrant to search these premises. However for a number of reasons, including in particular the reason that it was difficult to carry out observations on the house without being seen, the police had decided to resort to what can be described as an undercover operation. While a colleague posted himself out of sight but in a position to overhear what happened P.C. Dinnen had gone to the door of the premises and rattled the letter box. When a female answered he had asked, "Is Charlie in? I was told I would get some hash". When the female asked who had sent him he replied that he had been over at Charlie's brother's house and that he had sent him. Then the appellant came to the door and asked D.C. Dinnen what he was wanting. The constable replied, "A half half quarter". The appellant went back into his house and returned a few seconds later with a piece of resinous substance. The police constable then gave the appellant a marked ten pound note. Fifteen minutes or so later the police returned to the premises and exercised their rights under the search warrant to search the house. They found seven pieces of cannabis resin in the possession of the appellant. In respect of the first charge the conviction depended on the evidence of D.C. Dinnen and D.S. Thom who had overheard what took place when the former was supplied by the appellant with cannabis. With regard to the second charge D.S. Thom had given evidence that the character and weight of the pieces of cannabis discovered in the house were such as to suggest dealing rather than a supply for personal use. However, the sheriff acknowledged that in finding the appellant guilty of the second charge she had taken into account the transaction involving D.C. Dinnen as being admissible. This evidence, it was contended for the appellant, had been unfairly obtained. Any distinction between the cases which established that a suspect should not be allowed by police to incriminate himself without a caution being administered and the line of authority which appeared to allow the police to test a supplier's willingness to supply in licensing cases was invalid and could not be justified in principle. H.M. Advocate v. Harper 1989 S.C.C.R. 472 had been wrongly decided. We were referred to H.M. Advocate v. Campbell 1964 J.C. 80; Southern Bowling Club Ltd. v. Ross (1902) 4 F. 405 and H.M. Advocate v. Graham 1991 S.C.C. R. 56. If the chapter of evidence involving D.C. Dinnen was excluded then not only would the first charge fall but there was insufficient evidence remaining to justify a conviction on the second charge.

In addition to discussing the cases cited by the appellant the Crown cited Marsh v. Johnston 1959 S.L.T. (Notes) 28;Brannan v. Peek [1948] 1 K.B. 68 and Cook v. Skinner 1977 J.C. 9. The learned advocate-depute went some way toward acknowledging that it may be difficult to reconcile licensing law cases such as Cook with the line of authority governing the taking by the police of voluntary statements from a suspect. Indeed he suggested that a larger court may be required to arrive at a satisfactory resolution of the law.

For my own part I find no particular difficulty in reconciling the licensing investigation cases with the cases setting out rules for voluntary statements by a suspect to the police. The cases which govern voluntary statements have evolved within the context of a particular historical background. Originally the interrogation of a suspect was carried out by the sheriff and not by the police. When the police began to assume a more positive role in the examination of suspects concern arose to protect an accused against abuse by the police. In particular there was concern in case a suspect might be induced to confess by unfair treatment or pressure being applied to him by police interrogators. Thus a body of distinct rules and principles has evolved over the years but these relate and are intended to relate only to the situation where the commission of a crime has been reported or noted and the police collect evidence directly from a suspect particularly by way of an incriminatory statement. The fundamental objective is always to ensure that no unfair methods are used to induce a suspected person to incriminate himself and one particular rule that is clearly acknowledged is that if a person is specifically suspected by the police of having committed a crime then he should be cautioned that he need not say anything which might incriminate him. The position of the police is however quite different where the primary objective is not to seek evidence against a person suspected of a particular crime but rather to carry out an investigative function to ascertain whether crime is in fact being committed. In respect of the investigative function of the police it would be quite unrealistic to suppose that a certain amount of covert investigative work requiring a degree of what could be described as deception is not sometimes necessary. This must be particularly so under modern conditions where the police are often faced with requiring to investigate crimes such as drug dealing carried out by organised professional criminals who themselves without hesitation resort to more than a fair degree of deception. The public have a considerable interest to secure the detection of crime and if a reasonable and necessary degree of undercover operation is necessary to achieve that end then there is justification for tolerating it provided that the process is not in any respect unfair to the supposed perpetrator of the crime. That however is not to say that deception is a desirable technique for the police to employ except in circumstances where it is necessary. Moreover deception should not in any event be used indiscriminately and certainly not in any way that might unfairly induce a person to commit a crime which he might not otherwise have been prepared to commit. Thus the circumstances under which police carrying out investigations may employ undercover techniques in order to secure information later to be used in evidence against a perpetrator of the crime are also governed by rules of law and the most important of these is that an accused should not be jeopardised by investigative methods which on a balanced view could be described as unfair. Just what investigative procedures may be regarded as fair or unfair will vary with the circumstances but I will confine myself here to a situation where the police require to investigate whether a particular substance is being supplied illegally. In such a situation cases such as Marsh and Cook can offer valid guidance. It seems to me that when there is no other effective way of ascertaining whether or not a person is engaged in supplying a substance illegally the police are justified in testing the situation by representing themselves as interested purchasers. What is critical is that the investigator should not in any way seek to tempt, persuade or otherwise put pressure on a supplier to engage in a transaction that he was not otherwise perfectly prepared to transact. The investigation should be designed to discover whether or not as a matter of course the suspected person is engaging in a particular category of illegal transaction and certainly not whether it is possible to induce him so to transact. This may explain the reservations which Lord Justice-General Clyde expressed in Marsh about the conduct of the police in Brannan.Not only are the observations of the Lord Justice-General obiter but the report in the latter case suggests that the investigating policemen persuaded the suspect to enter into a betting transaction which he was hesitant to engage in. If it was necessary for a policeman seeking to discover by direct action if a substance was being supplied illegally to declare his identity and to administer a caution then such enquiries would be a waste of time.

Looking to the circumstances of the present case there was evidence accepted by the sheriff that it was difficult to carry out surveillance operations on the suspected house without being seen. The police therefore decided that D.C. Dinnen should go to the house and pretend to have been sent by the appellant's brother. When a female came to the door D.C. Dinnen said, "Is Charlie in? I was told I could get some hash". This observation was in no sense an attempt to induce another to supply the drug unless Charlie (the appellant) was perfectly prepared to supply the drug to a stranger on request. When the female asked D.C. Dinnen who had sent him he replied that he had been over at Charlie's brother's and that he had sent him. That was certainly an untruth but it was clearly designed only to establish D.C. Dinnen's identity as a bona fide purchaser of drugs. It was designed to assist the detective constable in concealing his true identity and that was necessary if the investigation was to have had any hope of success. I do not see how the attempt to vouch identity by reference to Charlie's brother could have induced the appellant to supply an illegal drug if he was not already engaged in the supply of such drugs. Indeed within seconds he was able to produce a suitable package of the drug from his house. Thus what D.C. Dinnen did was effectively to establish that the appellant was engaged in the supply of drugs and he did this without any kind of unfair tactic such as might have distorted the situation or cast doubt on the result of his enquiry. If instead of sending D.C. Dinnen to the door of the house the police had executed their warrant they would certainly have found drugs in the house but may well not have been able to ascertain whether such drugs were for private use or for supply. Indeed the appellant's counsel makes a point of what he claims is the inadequacy of the results of the search in respect of the supply of drugs. The sheriff in Harper had to deal with a situation similar to the present case and in my opinion the case was properly decided by him. Thus I consider that the first two questions in the stated case fall to be answered in the affirmative. Since this means that the evidence of the supply to D.C. Dinnen was also available to support D.S. Thom's evidence that the drugs discovered within the house were intended for supply it is not necessary to consider what would be the position were this not so. Clearly with the evidence of D.C. Dinnen there is a sufficiency of evidence to establish the second charge and the third question in the stated case also falls to be answered in the affirmative.