HIGH COURT OF JUSTICIARY
OPINION OF LORD ABERNETHY
in the Petition
THOMAS PORTER and JOHN SMITH
M Scott, Advocate, A & W M Urquhart (for petitioner Thomas Porter)
Anderson Strathern (for petitioner John Smith)
C J S MacNeill, Advocate, Lord Advocate
R G Clancy, Advocate, Advocate General for Scotland
23 December 1999
The petitioners are both prisoners in HM Prison, Shotts. They were both convicted at the High Court in Kilmarnock on 12 May 1997 of a contravention of section 170(2)(b) of the Customs and Excise Management Act 1979. This was charge 2 on the indictment which they faced. They were each sentenced to 14 years imprisonment. Each of them has appealed against both conviction and sentence.
The charge of which they were convicted arose out of an operation whose object was the illegal importation of a large amount of cannabis resin from Morocco to Troon in Scotland. In his petition the petitioner Porter avers as follows:-
"At his Trial, the Petitioner in his defence led evidence and submitted that the events constituting the offences consisted of an operation instigated and controlled by Customs & Excise, and that his limited participation was as a result of pressure, deception and entrapment (Transcript of Defence Speech, pages 28-35). He gave evidence that he had been 'set up' by Customs & Excise. In his Charge to the Jury, the Learned Trial Judge directed the Jury that, in deciding the question of fairness or entrapment, they should consider how the operation came into existence and who started the enterprise (Charge, page 39). The witness 'Frank' from Customs & Excise gave evidence that he had been approached by the witness, McKenzie, in November 1995, who gave him 'a story' which gradually led to the mounting of an operation in October 1996, resulting in the Charges brought against the Petitioner. The said witness indicated that all the information he had came from McKenzie, that the 'story' required to be tested and confirmed by instructions given to McKenzie, and from that source of information the operation was eventually mounted (see Transcript Volume 6, pages 5-7; 32-38 and 42-43). He specifically denied surveillance of the Petitioner in the course of 1996 prior to the mounting of the operation (page 43B). In this context, the clear inference from the evidence of Customs & Excise was that their knowledge of and interest in the Petitioner, and their involvement in the operation came about as a result of information from McKenzie. There was a direct dispute in the evidence between the Petitioner and Customs & Excise as to the instigation and control of the operation. The Petitioner's defence and the central issue at Trial concerned the respective parties' participation and knowledge of matters, and the question of fairness. Credibility was a critical issue for the Jury to determine".
Ground 4 of the petitioner's substitute grounds of appeal is in the following terms:-
"There was a miscarriage of justice based on the existence and significance of evidence which was not heard at the trial and there is a reasonable explanation of why the said evidence was not heard.
(i) Inland revenue files, disclosed in the process of confiscation proceedings against the appellant (post conviction), indicate that the appellant was known to and a target of Customs and Excise as early as February 1992. Reference is made to the attached documents (1)-(3). It was of importance at trial that the evidence of Customs and Excise was that they only knew of the appellant through information provided by McKenzie at or about November 1995 and that they responded to the operation initiated by the appellant and others. Customs and Excise witnesses specifically denied that the appellant was a target until the said operation was ongoing. The credibility of Customs and Excise witnesses and determination of who initiated and controlled the operation were critical issues for the jury to decide".
In his petition the petitioner Porter goes on to aver that the evidence disclosed in documents (1)-(3) mentioned above does not correspond to the evidence of "Frank" at the trial and as such is of a material bearing on the issue of credibility. Further, the petitioner avers that this evidence has a material bearing on deciding the question of fairness, that is, as I understand it, the fairness of the actings of Customs and Excise. The petitioner therefore seeks the recovery of the documents called for in the Specification of Documents attached to the petition. The calls are in the following terms:-
1. All records of Her Majesty's Customs & Excise relating to the Petitioner for the period January, 1992 to 9th October, 1996, in order that excerpts may be taken at the sight of the Commissioner of all entries showing, or tending to show, the identification of the Petitioner as someone of interest to them in that period; and that any report by the Commissioner or any such excerpts should not disclose any information or detail which might identify any other person.
2. All records of Her Majesty's Customs & Excise relating to telephone calls and reference to telephone numbers, 01294 5590099 and 01294 552338, associated with the Petitioner for the period 1st January, 1992 to 9th October, 1996, in order that excerpts may be taken at the sight of the Commissioner of all entries showing or tending to show the dates of any interest in the said telephone numbers by them in that period; and that any report by the Commissioner or any such excerpts should not disclose any other information.
3. Failing principals, drafts, copies, or duplicates of the above, or any of them."
The Lord Advocate opposed the petition on behalf of the Crown and the Customs and Excise Department and on 27 July 1999 consideration of the matter was remitted by the Criminal Appeal Court to a single judge. Thereafter the petition was amended so as to give notice of intention to raise a devolution issue and the Advocate General in turn gave notice that she intended to take part in the proceedings in so far as they related to that issue. After sundry procedure the matter came before me.
At the start of the hearing Miss Scott, counsel for the petitioner Porter, took me through the background which I have narrated above. She then intimated that on the day before the hearing she had been provided with further information from the Crown. This was a single sheet of paper with the heading "DIARY OF EVENTS - THOMAS PORTER and JOHN SMITH". She said that it appeared to be a summary taken from the Customs and Excise files with regard to entries in those files concerning the petitioner. It showed that from early in 1992 there had been such entries. However, she was not content with that standing the evidence given by "Frank" at the trial. She submitted that it was necessary for an independent person to see these files and that was why she sought the appointment of a Commissioner in terms of the Specification of Documents. She accepted that if she was to obtain the order she sought, she had to pass the test set out by Lord Justice General Rodger in McLeod v HMA 1998 S.C.C.R.77 at page 99. She submitted, however, that she had satisfied that test. She then went on to address me on the devolution issues (there are actually three of them) which are raised in the petition but, as will become obvious, it is not necessary for me to rehearse that.
The petitioner Smith adopted the submissions of Miss Scott. His petition and Specification of Documents were broadly to the same effect on the point in issue and it was not suggested there was any material difference between the two petitioners on this.
In reply the Advocate Depute submitted that I should refuse the prayer of both petitions. He explained that the Lord Advocate himself had intended to appear but was unable to do so due to other commitments. The Advocate Depute also intimated that he and Mr Clancy, counsel for the Advocate General, were agreed that the matters raised in these petitions were all devolved matters in terms of the Scotland Act 1998. It was therefore for the Lord Advocate to deal with them all. Miss Scott did not in the end take issue with this.
The Advocate Depute then turned his attention to the merits of the petition in the case of Porter. He said that the Crown's position went no further than what was stated in paragraph 2 of the amended answers. It was accepted by the Crown, under reference to McLeod v HMA, that if the test set out there was met and the calls were appropriately restricted, then any general objection to recovery of documents in the possession of HM Customs and Excise might be overcome in a specific case. So, he said, the public interest argument and the materiality argument merge and become one, namely, is the test set out in McLeod met or is it not? He submitted that in this case that test was not met. Even if it was met, the calls in the Specification of Documents were too wide.
Mr Clancy, counsel for the Advocate General, explained that he was present only because of the averments in the first part of paragraph 3 of the petition, which raised the question as to whether the matter mentioned there was a devolved matter in terms of the Scotland Act. However, as I have explained, that matter ceased to be an issue.
As the debate developed it became clear, as I have indicated, that the central issue was whether the petitioners had satisfied the test in McLeod v HMA. If they had, then, subject to suitable safeguards, the prayer of the petitions could be granted. There was therefore no devolution issue to be decided.
It was common ground that the Crown case at the trial was based on the evidence of McKenzie and "Frank". McKenzie's evidence was to the effect that late in 1995 he was approached, principally by Porter, as being someone who could assist in transporting a consignment of drugs from Morocco to Scotland. In other words, he was being invited to take part in an existing plan to smuggle drugs. He said he then contacted the authorities and met "Frank". The evidence of "Frank" was to the effect that he had been approached by McKenzie in November 1995 with what he called "a story" which eventually led to the operation which resulted in the petitioners being charged with the offence of which they were convicted. The evidence of Porter and a co-accused, Forbes Cowan, however, was in sharp contrast to that. They said that Mackenzie had persuaded them, and Smith also, to set up a smuggling operation in which he could take part. The case for the petitioners, therefore, was that Customs and Excise had acted unfairly towards them in that they had entrapped them in the activities in which they were alleged to have been involved. In considering this matter it was obviously important for the jury to consider the evidence as to who initiated the scheme for taking the drugs from Morocco to Troon. As the trial judge put it in his charge (at page 39E-F), "in coming to a decision on this question of fairness, of entrapment ... you might like to consider first of all how you think the operation came into existence".
It can be seen from this that the credibility and reliability of McKenzie's evidence was critical, and so was the evidence of "Frank", not just for itself but for the support and strength it gave to McKenzie's evidence. The Advocate Depute accepted that this was so. However, in cross examination of "Frank by counsel for Porter the following exchange took place:-
"One of the methods of operating that you adopt is to watch people, isn't it? - Yes, that would be correct.
If you have an interest focusing on particular individuals you will keep an eye on their movements? - That would be correct sometimes.
Did you see any of your colleagues carry out that kind of exercise in the Hospitality Inn in Glasgow in April or May of last year? - No. I certainly didn't and I don't know of anyone else that did.
You are aware that Mr Porter, who is my client, comes from Kilwinning? - Yes, I am aware of that.
Were you yourself about in Kilwinning on more than one occasion before October 1996, in the months before October 1996? - No.
If anyone saw you in Kilwinning would they be mistaken? - Yes.
Is it possible that you or your colleagues were watching Mr Porter and others in Kilwinning in the course of 1996? - No."
Counsel's cross examination then ended. In light of the documents that have now been made available, and most importantly the "Diary of Events" produced at the start of the hearing before me, it is plain that that last answer is not correct. On the contrary, it is plain that from 1992 up to and including 1996 Customs and Excise officers were watching Porter.
In McLeod v HMA 1998 S.C.C.R.77 a Bench of five judges considered the circumstances in which an accused person was entitled to Commission and Diligence for the recovery of documents in preparation of his defence before trial. The leading opinion was given by the Lord Justice General with whom all the other judges agreed. At page 99 his Lordship said this:
"Like others in the past I am conscious of the difficulty of formulating the test which the court should apply when asked to order the production of documents in a criminal case where the charges are set out relatively succinctly and the only formal documents indicating a line of defence will be any transcript of the accused's judicial examination and any special defence or notice of incrimination. I consider, however, that an accused person who asks the court to take the significant step of granting a diligence for the recovery of documents, whether from the Crown or from a third party, does require to explain the basis upon which he asks the court to order the haver to produce the documents. The court does not grant such orders unless it is satisfied that they will serve a proper purpose and that it is in the interests of justice to grant them. This in turn means that the court must be satisfied than an order for the production of the particular documents would be likely to be of material assistance to the proper preparation or presentation of the accused's defence. (Emphasis added). The accused will need to show how the documents relate to the charge or charges and the proposed defence to them. Such a requirement imposes no great burden on an accused person or his advisers: the averments in the petition may be relatively brief and the court will take account of any relevant information supplied at the hearing".
As I have said, that case was concerned with the recovery of documents for the preparation of an accused's defence before trial. The present case is concerned with the recovery of documents for the preparation of an appellant's appeal following conviction. I do not consider, however, that that makes any difference in principle and it was not suggested otherwise. In my opinion, once it is accepted, as it very fairly was by the Advocate Depute, that the credibility and reliability of "Frank's" evidence was of critical importance to the Crown case against these petitioners, and if I am right in concluding that "Frank's" answer to the last question in the passage of his cross examination which I have quoted was not correct, then in the circumstances of the present case it must follow that the test set out by the Lord Justice General has been met. The essential element in that test so far as the present case is concerned was the sentence I have emphasised above. As the Advocate Depute put it, that was the gravamen of the test for present purposes. None of the other requirements set out by the Lord President was in issue. The matter may be tested in this way. What if "Frank's" answer to that last question in the exchange I have quoted had been, as it should have been, in the affirmative, even a qualified affirmative as the Advocate Depute suggested might have been appropriate, to reflect what he called Customs and Excise's low level of interest in the petitioner at that time? It is impossible, of course, to envisage the full consequences. But I think I am entitled to conclude that the cross examination by an experienced senior counsel would not have ended as it did when "Frank" gave his one word negative answer. It would, I think, almost certainly have proceeded further and the information of earlier interest in Porter by Customs and Excise would have become available as evidence for the jury to consider. Whether that would be likely to have affected their verdict is not for me to say. That is a matter which would be for consideration by the Appeal Court. But I am in no doubt that the information with regard to that earlier interest in Porter by Customs and Excise is likely to be of material assistance to the proper preparation or presentation of his appeal in terms of ground 4(i) of his grounds of appeal. In my opinion, therefore, subject to suitable safeguards, the petitioner is in principle entitled to recover the documents he seeks.
A separate point was made by the Advocate Depute in relation to call (2). He submitted that there was no foundation in the petition for that call. It is true that there is no averment that Customs and Excise were interested in the two telephone numbers mentioned in the call, which I was informed were the petitioner's, but I think Miss Scott was correct to say that calls 1 and 2 were interlinked and in the circumstances sufficiently so to justify call 2.
The next question is whether in the exercise of my discretion I should make the order sought. It was submitted by the Advocate Depute that the information contained in the "Diary of Events" was sufficient and I was informed by him that, as it bears to be, it was an accurate and complete schedule. No doubt in some circumstances that would be acceptable but in this case, standing the evidence given by "Frank", Miss Scott submitted that it was necessary for an independent person to be appointed to examine the files and make the appropriate excerpts as called for in the Specification of Documents. In the circumstances of this case I consider that that submission was well founded and should be given effect. Apart from the desirability of an independent examination of the files for entries in terms of call (1) of the Specification, there should also be an examination for any entries in terms of call (2), which does not appear to have been specifically covered by the "Diary of Events" schedule.
There remains the question whether the calls are in suitable terms. The Advocate Depute submitted that if this stage was reached, the words "in respect of drug-related activities" should be inserted after the word "period" in the fourth line of call (1). Furthermore, in call (2) it should be made clear that any entries showing or tending to show the date of any issue of a Warrant authorising the interception of the telephone numbers mentioned were not to be included by reason of the provisions of section 9 of the Interception of Communications Act 1985. There had originally been a call seeking excerpts of such entries. That had now been deleted from the Specification of Documents but nevertheless the position should be made clear. These suggested alterations were not opposed by Miss Scott and I think there is merit in them. I will therefore give effect to them. I will also give effect to the "tidying up" amendments which Miss Scott proposed in the first two lines of call (2). Subject to these changes I will grant a Commission and Diligence for the recovery of the documents called for in the Specification of Documents and make the appropriate orders as sought in the prayer of the petition. It was agreed by counsel that the Commissioner should be a senior member of the Bar.
For present purposes the petitioner Smith's position is in all material respects the same as Porter's, at least so far as call (1) is concerned; he has no call which is the equivalent of call (2) in the Specification of Documents for Porter. Neither counsel sought to draw any distinction between the two petitioners so far as call (1) is concerned. It follows, therefore, that the same result must follow in Smith's petition as in Porter's. Mr Smith did not oppose the change suggested by the Advocate Depute to call (1) for Porter and I think it would be appropriate to make the same change in his case. I also think it would be appropriate to include in call (1) for Smith the last clause in call (1) for Porter. Subject to these changes I will grant a Commission and Diligence for the recovery of the documents called for in his Specification of Documents and make the appropriate orders as sought in the prayer of his petition. The same senior member of the Bar will be the Commissioner.