Scottish High Court of Justiciary Decisons

Brown & Ors v. Her Majesty's Advocate [2002] ScotHC 65 (22 May 2002)

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Marnoch Lord Philip Lord Clarke	Appeal Nos: C80/98 C81/98 C141/98 C93/98 OPINION OF LORD MARNOCH in APPEALS by ROBERT BARR BROWN and SAMUEL WATSON BOWMAN, ALEXANDER BRAUN and DAVID ROONEY Appellants; against HER MAJESTY'S ADVOCATE Respondent: _______

 

 

Appellants: Ms M. E. Scott; Wheatley & Co.

Shead; Wheatley & Co.

Bovey, Q.C.; Hughes Dowdell

Ms P. Collins; Allan Findlay & Co

Respondent: Doherty, A.D; Crown Agent

22 May 2002

1. These are appeals by Robert Barr Brown, Samuel Watson Bowman, Alexander Braun and David Rooney, all of whom were convicted on a charge of conspiracy to steal a number of motor vehicles from certain premises in Glasgow. The charge in question reads as follows:

"Between 1 May 1996 and 25 July 1996, both dates inclusive, you ROBERT BARR BROWN, SAMUEL WATSON BOWMAN, ALEXANDER BRAUN and DAVID ROONEY at the premises at 262 Maryhill Road occupied by Taggarts, The Clyde Inn, 52 Kingston Street, Tower Public House, 8 Possil Road, the Hilton International, 1 William Street, all Glasgow and elsewhere in Glasgow did, while acting along with another, conspire to steal a number of motor vehicles at said premises occupied by Taggarts, and in furtherance of said conspiracy

(a) on various occasions between 1 May 1996 and 25 July 1996, both

dates inclusive, at said premises occupied by Taggarts, 262 Maryhill Road, Glasgow, you ALEXANDER BRAUN, then employed there as a Security Guard, did provide information to you ROBERT BARR BROWN, SAMUEL WATSON BOWMAN and DAVID ROONEY concerning motor vehicles held within said premises and did give access to said premises to persons who were not entitled to access while said premises were closed and in particular to you ROBERT BARR BROWN and you DAVID ROONEY; and

(b) on various occasions between 13 June 1996 and 25 July 1996, both

dates inclusive, at said Clyde Inn, 52 Kingston Street, said Tower Public House, 8 Possil Road, said Hilton International, 1 William Street, and the premises at 262 Maryhill Road occupied by Taggarts, all Glasgow and elsewhere in Glasgow you did meet persons known to you as 'George', 'Billy', 'Sid' and 'Gary', all care of Scottish Crime Squad, Osprey House, Paisley and offer to supply them with a number of motor vehicles which you intended to steal at said premises occupied by Taggarts; provide handbooks relating to motor vehicles to the person known to you as 'George'; take said persons known to you as 'George', 'Billy' and 'Sid' to said premises occupied by Taggarts; and attempt to induce said persons to hand to you £100,000 in exchange for said stolen motor vehicles;

(c) on 25 July 1996 at said premises occupied by Taggarts, you ALEXANDER BRAUN did provide to you DAVID ROONEY and to a person known to you as 'Sid' overalls, gloves and keys to unregistered motor vehicles and you DAVID ROONEY did force open a number of motor vehicles;".

2. In addition to the above Alexander Braun was convicted of a second charge concerned with a fraudulent scheme to obtain a United Kingdom passport to which he was not entitled, thereby attempting to defeat the ends of justice. No appeal is now insisted in in respect of that second charge and, as regards all the appellants, it was agreed that a separate hearing would, if necessary, be arranged to deal with the matter of sentence.
3. As regards the charge of conspiracy, the only grounds of appeal ultimately insisted in fell under two heads which are now most conveniently to be found as heads 1 and 2 of the substitute grounds of appeal lodged on behalf of Alexander Braun on 12 March 2002. These grounds are identical to grounds 1 and 4 of the substitute grounds of appeal lodged on behalf of Robert Barr Brown and are closely mirrored by the remaining grounds of appeal insisted in by the other two appellants. I have only to add, by way of introduction, that Miss Scott, Q.C., on behalf of Robert Barr Brown, took, as it were, the "lead" in this matter and all her submissions were duly adopted, with only minor additions, by counsel representing the other three appellants.
4. The two grounds of appeal to which I have just made reference are in the following terms (under explanation that "George", "Billy", "Sid" and "Gary" were undercover police officers):

"1. The evidence of the principal Crown witnesses, 'George', 'Billy',

'Sid', 'Gary' and DC McCraig having been unfairly obtained ought not to have been admitted in evidence and the trial judge erred in allowing same to be considered by the jury. The said evidence was obtained by way of incitement, instigation, pressure and encouragement to commit the offence and as such the effect of it's (sic) admission was to deny the appellant a fair trial. In particular it was undisputed that a police informer played a material and 'pro-active' role in the conception of and planning of the offence and that thereafter the carrying out of the plan was led and controlled by police officers.

2. The trial judge misdirected the jury at p44D of his charge where he

directed that 'as a matter of law the police operation here was quite within the bounds of the law'. The effect of this direction was to tell the jury the police activities were legitimate and as such he effectively withdrew the critical issue for their determination. This misdirection is not cured by subsequent direction that the issue of fairness was for the jury to determine."

5. As regards the first of these grounds or heads, it soon became apparent in the course of the argument that any appeal based on the wrongful admission of evidence was essentially misconceived. This was because at the trial the common view taken by all counsel was that the matter of incitement was an aspect of "fairness" and, as such, a matter to be determined by the jury having received appropriate directions from the trial judge. In consequence, no objection was taken at any stage of the trial to the admission of the evidence later said to have been unfairly obtained. It is accordingly quite impossible to deal with this matter as one involving the wrongful admission of evidence. What, however, the argument came to be under this head was that, at least by the time the evidence was concluded, it should have been apparent to the trial judge that this was a case of entrapment by the police or, at least, that it might be such a case; and that in that situation the trial judge should have withdrawn it from the jury. In making that submission counsel realised that she was asking much of the trial judge since, prior to the decision of this Court in Thompson v Crowe 2000 JC 173, he, too, could have been forgiven for thinking that, as the matter came before him, it was one for the jury to determine. Even so, said Miss Scott, it was now clear that a decision of this sort had to be taken by the Court and, it being never too late to raise a miscarriage of justice, it was accordingly incumbent on this court to adjudicate at this stage on the question of whether or not there had been actual or, at least, possible entrapment by the police. To that end she took us through what she claimed were the relevant passages in the evidence.
6. While embarked on that exercise it became clear that it was only on the sixth day of the trial, in the course of a discussion on an objection taken by the Crown, that mention was first made by Mr Findlay, Q.C., for the first appellant, that an issue of entrapment might arise. The substantive defence had been, and continued to be, that there never was any genuine intention to steal vehicles from the premises in question and that the apparent conspiracy was simply a pretence in order to extract money from the person or persons in London who were interested in acquiring vehicles. At all events, the first involvement of the police appears to have been on 13 June 1996 when "George" was introduced by a police informant, Tony McLelland, to a man, Hugh McKay, who was eventually led as a defence witness and who was the other unnamed conspirator referred to in the indictment. "George", whose role was to pretend that he or his principals were interested in taking delivery of stolen vehicles from Glasgow if the scheme was viable, gave unchallenged evidence to the effect that at this first meeting McKay told him about "what was on offer". Mackay also offered to show "George" the "garage in question" and arrangements were made for that to be done the following day. According to the evidence, "George" was picked up the following day by McKay and taken to the garage premises referred to in the indictment. Miss Scott then went on to refer to various passages in the evidence where the police witnesses subsequently assumed what might reasonably be described as an active role in connection with the various steps taken in furtherance of the conspiracy, namely those set out in sub-heads (a), (b) and (c) of the charge. However, I do not myself consider that that evidence goes any distance towards establishing police entrapment in relation to the charge of conspiracy itself. Confirmatory proof that there was, or had been, a conspiracy to steal cars from Taggarts could only be obtained by the undercover agents posing as, or as acting for, potential buyers and by allowing matters to proceed to the stage when the removal transporters which they pretended would be supplied by them or their principals were due to arrive. The real question in the case is to what extent, if any, the police instigated the formation of the initial conspiracy to steal vehicles from Taggarts. In light, however, of the evidence to which I have just referred, I consider that the Advocate Depute was well founded in submitting that the answer to that question was that there was, quite simply, none. In that connection, I do not overlook a submission made somewhat belatedly by Mr Duguid, for the third appellant, to the effect that, despite the three month period libelled in the indictment, there was no evidence from which it could be inferred that a conspiracy centred on a theft of vehicles from Taggarts had been formed at a time prior to "George's" arrival on the scene. Even if that were right, however, there is still no evidence that it was "George" who instigated the conspiracy. Indeed, his unchallenged evidence was precisely to the opposite effect.
7. Perhaps sensing the difficulties in getting much from the police evidence, Miss Scott had another string to her bow. This derived from the evidence of Hugh McKay who was eventually led as a witness for the second appellant. According to McKay it was Tony McLelland who, in December 1995, first made him aware that there was a "requirement for cars from London". The cars in question had to be "top of the range" cars and McKay had passed on this information to "people" in Glasgow as far back as December 1995. There had been a "pub discussion" among a number of these people but, in particular, McKay had involved the second appellant in the matter. For the rest, McKay's evidence purported to support the substantive defence being put forward by the appellants and it was plainly disbelieved by the jury. Nonetheless, Miss Scott submitted and, indeed, repeated more than once that evidence of entrapment or, at least, possible entrapment was to be found in the fact that the police had "taken up Tony's plan" and, according to Miss Scott, that was so even if "Tony" had earlier been acting for other principals based in London. In my opinion, however, and in agreement with the submissions made by the Advocate Depute, that argument cannot succeed. In the first place, there is no basis whatever for inferring that prior to the summer of 1996 Tony McLelland was in any way connected with the police in relation to this or any other matter, let alone at any time acting as some "agent provocateur" on their behalf. In the second place, if, as I have already concluded, the police had nothing to do with instigating a conspiracy centred on Taggarts' garage, it seems to me entirely immaterial that that conspiracy had been, or was, formed as a result of an inquiry from Tony McLelland. It is, indeed, in the nature of things that cases of criminal conspiracy which are infiltrated by undercover police officers will have come to light as a result of the prior involvement of a police informant.
8. In light of the foregoing analysis I have little hesitation in accepting the Crown submission that police entrapment never properly arose in this case, even as an issue for consideration, let alone as an established fact. It follows that, even taking the legal submissions advanced on behalf of the appellants at their highest, the appeals against conviction must in each case be refused. Judging from what he says in his Report to this court, it appears that the trial judge would have reached the same conclusion on the evidence if he had felt free to express it.
9. In the foregoing circumstances it is unnecessary to deal separately or, at all events, at any length with the second ground of appeal. As it happens, I have difficulty in seeing any proper content for the trial judge's comment to the jury that "as a matter of law the police operation here was quite within the bounds of the law". On the contrary, with all due respect to the trial judge, it seems to me that, on the approach being adopted, this was the very question which the jury had to answer in terms of the other, and careful, directions which had been given to them on the subject of fairness. However, the logic of what is said above is that it was quite unnecessary for the matter of entrapment to be left to the jury in the first place. They could quite properly have been directed simply to ignore that issue in so far as it had been raised by counsel in their closing addresses. In short, if there was here a misdirection, it was not a misdirection productive of any miscarriage of justice. The fact that the matter of entrapment was left to the jury at all, far from being prejudicial to the appellants, was in fact a "bonus" to which they had no entitlement.
10. All that said, out of deference to the lengthy legal submissions which we did hear, and because there is a relative dearth of authority in Scotland on the matter of entrapment, I think it right to make one or two observations as to the general law.
11. Firstly, I do not accept that the decision of this court in Weir v. Jessop (No. 2) 1991 SCCR 636 provides any foundation for the view that it is sufficient for the defence simply to raise the issue of entrapment and then, by analogy with statements allegedly unfairly obtained, leave it to the Crown to, as it were, prove the negative. All that was said by the court in that case was that the same general principle of "fairness" applied whether judging of the admissibility of a statement or of the admissibility of evidence obtained by way of entrapment. In saying that, however, the Lord Justice Clerk, at p.644, saw a clear distinction between the two types of case, as did Lord Morison at p. 646 and Lord Caplan at p. 648. Moreover, Weir v Jessop (No.2) was an appeal arising out of a summary trial in which there was no dispute as to the relevant evidence and where the issue of entrapment appears to have arisen for the first time as a result of evidence given by one of the police witnesses. It is hardly surprising, therefore, that the matter was dealt with as one of the admissibility of that and other related evidence. What is important is that it is clear from what was said in Weir v Jessop (No.2), as also from what was said by Lord Justice General Emslie in the earlier cases of Cook v Skinner and MacDonald v Skinner 1977 J.C. 9, that the nature of the unfairness complained of in a case of entrapment is that an accused has been pressurised by the State into committing a criminal act which, but for that pressure, would never have seen the light of day. Accordingly, the focus of that unfairness lies in the fact of the prosecution itself. To prosecute such a case is to my mind just as oppressive to the citizen as to prosecute him in the face of inordinate delay or extravagant pre-trial publicity or, indeed, in any one of the many and varied situations covered by the plea in bar of trial based on oppression. In that connection, I refer generally to Renton & Brown on Criminal Procedure 6^th Ed. para. 9-21 and several authorities there cited including Stuurman v HM Advocate 1980 J.C. 111, per Lord Avonside at p.121 and Lord Justice General Emslie at p.122; and also, by way of further example, to Bott v Anderson 1995 S.C.C.R. 584, Boyes v McLeod 1998 S.C.C.R. 373 and Hamilton v Byrne 1997 S.C.C.R. 546. The common feature of all such cases is plain to see, namely that, for whatever reason, it is unfair that the Crown should be allowed even to commence the prosecution in question.
12. So far, therefore, as entrapment is concerned, where, as will often be the case, all the relevant facts are known in advance, it seems to me clear that the matter should be dealt with by way of a plea in bar of trial. If, however, for some reason the issue only arises in the course of a trial, then clearly the proper course will be to intimate an objection at the earliest opportunity. In either situation, it seems to me that the onus must clearly be on the defence to establish the oppression complained of; cf. HMA v McGill 1997 S.C.C.R.230 at p.237D. Although this, to me, is plain as a matter of principle, it might be added that, if the position were otherwise, many trials could readily be thrown into great confusion. On countless occasions police evidence is given as a result of "information received" and it could, no doubt, be queried whether that information had somehow been prompted or "arranged" by the police. It can hardly be supposed, however, that the Crown could then assemble all the evidence relative to that matter, - even assuming that, in the case of solemn proceedings, the names of the new witnesses were allowed to be added to the Crown list. For the sake of completeness, and lest it be thought the submission has been overlooked, it was at one point suggested by Miss Scott that entrapment did not fall readily into the category of "oppression" in so far as it involved no "prejudice" to the accused. In my opinion, however, and perhaps on this matter differing in some degree from Lord Philip and Lord Clarke, the essential basis of a plea of oppression is that, for whatever reason, the prosecution as a whole would be unfair to the accused - Montgomery v. H.M. Advocate 2000 SCCR 1044 per Lord Justice General Rodger at p. 1073E-F. In any event, the nature of unfairness in entrapment, namely conviction of a crime artificially created by the agents of the State, can, I think, readily be seen as a form of prejudice to the accused, albeit it can, of course, also be seen as an abuse of the court process.
13. Secondly, we were referred in the course of the debate to the recent decision of the House of Lords in relation to entrapment in English law, viz. Regina v Loosely [2001] 1 W.L.R.2060. In that case the doctrine of entrapment was analysed perhaps more thoroughly than ever before and I respectfully pay tribute to the penetrating and illuminating speeches delivered by, in particular, Lord Nicholls of Birkenhead, Lord Hoffmann and Lord Hutton. In the end, neither counsel for the appellants nor the Advocate Depute saw any reason why the guidance given by the House in relation to English law should not, in this area, be equally applicable to the law of Scotland; and I, for my part, am of like mind. For present purposes, however, it is perhaps sufficient to note that at para.1 Lord Nicholls of Birkenhead described entrapment as a form of oppression and abuse of process. At the same time he recognised, at para.16, that in such a case the Court might either stay the relevant proceedings or exclude evidence pursuant to section 78(1) of the Police and Criminal Evidence Act 1984. That subsection permits the exclusion of evidence on the ground that it "would have such an adverse effect on the fairness of the proceedings that the Court ought not to admit it". These two remedies, as discussed by his Lordship, in my opinion find their precise counterparts in Scotland in the form of, on the one hand, a plea in bar of trial and, on the other hand, an objection to the admissibility of evidence on the ground of unfairness. It is, however, perhaps instructive that Lord Nicholls goes on to say this:-

"... as a matter of principle a stay of the proceedings, or of the relevant charges, is the more appropriate form of remedy. A prosecution founded on entrapment would be an abuse of the Court's process. The Court will not permit the prosecutorial arm of the State to behave in this way."

Lord Hoffmann is much to the same effect where, at para. 44, he says this:-

"This question of whether the proceedings should be stayed on the grounds of entrapment should logically be decided before the proceedings have begun. But sometimes proceedings are not conducted entirely logically and an application to exclude evidence under section 78 may be in substance a belated application for a stay. If so, it should be treated as such and decided according to the principles appropriate to the grant of a stay".

14. For what it is worth, I respectfully adopt these statements of principle as in substance reflecting our own law.
Brown & Ors v. Her Majesty's Advocate [2002] ScotHC 65 (22 May 2002)

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Marnoch Lord Philip Lord Clarke	Appeal Nos: C80/98; C81/98; C141/98; C93/98 OPINION OF LORD CLARKE in APPEALS by ROBERT BARR BROWN and SAMUEL WATSON BOWMAN, ALEXANDER BRAUN and DAVID ROONEY Appellants; against HER MAJESTY'S ADVOCATE Respondent: _______

 

Appellants: Ms M. E. Scott; Wheatley & Co.

Shead; Wheatley & Co.

Bovey, Q.C.; Hughes Dowdell

Ms P. Collins; Allan Findlay & Co

Respondent: Doherty, A.D; Crown Agent

22 May 2002

15. I agree, for the reasons given by your Lordship in the Chair, that these appeals fall to be refused.
16. As regards, however, the analysis of the legal principles that come into play when a true case of police entrapment arises, I would wish to make the following remarks. It was a matter of agreement, before this court, that entrapment is not to be regarded as a defence to a charge. That is the established position in English law, see R. v Loosely (2001) 1 WLR 2060 (though not apparently the position in other jurisdictions such as the United States). Once the court, however, becomes aware that the prosecution has resulted from entrapment then, in my judgment, it is for the court to consider whether it is necessary to prevent the prosecution from proceeding further, because to allow it to continue would involve the court tolerating an abuse of process. In this respect I would respectfully adopt the words of Lord Steyn in the case of R. v Latif and Shahzad (1996) 1 WLR 104 where his Lordship at p. 112 said:

"Weighing countervailing considerations of policy and justice, it is for the judge in the exercise of his discretion to decide whether there has been an abuse of process which amounts to an affront to the public conscience and requires the criminal proceedings to be stayed.... The speeches in R. v Horseferry Road ex parte Bennett conclusively establish that proceedings may be stayed.... not only where a fair trial is impossible but also where it would be contrary to the public interest in the integrity of the criminal justice system that a trial should take place.... (The) judge must weigh in the balance the public interest in ensuring that persons charged with grave crimes should be tried and the competing public interest in not conveying the impression that the court will adopt the approach that the end justifies any means."

It does seem to me that it is for the court, in any civilised system of criminal jurisprudence, to seek to ensure that the police, or prosecuting authority, in that system, in exercising their powers and in performing their duties, do not descend to methods which cross the line from detecting crime and pursuing criminals, to instigating criminal conduct by provoking or inciting persons to commit crimes. To countenance such conduct, once it is identified, may be to countenance the pollution of the moral integrity of the machinery of justice. As Lord Steyn, in the passage cited above, points out, the value which is at play here, stands independent and separate from the need to ensure a fair trial, though the two values may operate to the same end in any particular case. For my part, therefore, I would not wish to confine the court's power, and indeed, duty, in appropriate circumstances, to prevent the continued prosecution of a charge which had been brought about by entrapment, to cases where it could be said that there was oppression, as traditionally defined in Scots law, or, more generally, where unfairness to the accused could be seen to be involved. I accept, of course, as your Lordship in the Chair suggests, that in the majority, if not all, cases it will be possible to say that to allow the prosecution to continue would be oppressive or unfair to the accused but, as Lord Nicholls in Loosely, at para. 18 observed, under reference to the case of R. v Chalkley (1998) QB 848, a decision on whether or not to prevent a criminal prosecution from proceeding further, in such a situation, is distinct from a determination of the forensic fairness of admitting evidence. The matter is, in my judgment, one of focus. As Auld L.J. said, in Chalkley (at p. 872) in a pre-echo of what Lord Steyn said in Latif, in the passage cited above, determining whether or not there has been an abuse of process

"may require considerations, not just of the potential fairness of a trial, but also of a balance of the possibly countervailing interests of prosecuting a criminal to conviction and discouraging abuse of power. However laudable the end, it may not justify any means to achieve it".

I consider, therefore, that it is more appropriate to recognise that in such cases the proper function of the court is to mark the unacceptability of certain practices being adopted by the police and prosecution authorities, which the law will not tolerate and that the principle involved is that the court is refusing to allow an abuse of process. To put the matter another way, I would refer to what Lord Hoffmann said in Loosely at para.71, that is, the question is: "Whether the involvement of the court in the conviction of a defendant who had been subjected to such behaviour would compromise the integrity of the judicial system."

17. The adoption of such an approach, in the law of Scotland, to entrapment cases, would, in my judgment, do no violence to existing principles. The approach is founded in what Lord Nicholls said at para. 1 of his speech in Loosely, where his Lordship was to the following effect:

"....every court has an inherent power and duty to prevent abuse of its process. It is a fundamental principle of the rule of law. By recourse to this principle courts ensure that executive agents of the state do not misuse the coercive, law enforcement functions of the courts and thereby oppress citizens of the state. Entrapment, with which these two appeals are concerned, is an instance where such misuse may occur. It is simply not acceptable that the state, through its agents, should lure its citizens into committing acts forbidden by the law and then seek to prosecute them for doing so. That would be entrapment. That would be a misuse of state power, and an abuse of process of the courts. The unattractive consequences, frightening and sinister in extreme cases, which state conduct of this nature could have are obvious. The role of the courts is to stand between the state and its citizens and make sure that this does not happen."

I would find it a strange and unsatisfactory position, if that statement of principle as to the inherent powers of the court was to be regarded, in any respect, at odds with, or incapable of being subsumed within, the principles of the law of Scotland.

18. As to whether the present case involved entrapment, I am entirely satisfied that the appellants have been unable to demonstrate that, on the evidence adduced at the trial, the criminal offence of conspiracy of which they were convicted, was one which was instigated by the police. Accordingly, while the matter was explored (to the extent it was explored at all) and dealt with in an unsatisfactory way at the trial, for the reasons given by your Lordship in the Chair, there was, in my judgment, no miscarriage of justice, since there was nothing in the evidence to establish that the police involvement in this case had crossed from what was legitimate to what was illegitimate.