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McGibbon & Anor v. Her Majesty's Advocate [2004] ScotHC 13 (19 February 2004)

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Justice Clerk

Lord Johnston

Lord Wheatley

Appeal Nos: XC339/02

XC340/02

OPINION OF THE LORD JUSTICE CLERK

APPEALS

(First) DAVID McGIBBON and (Second) PETER THOMSON CORSTORPHINE (aka SMITH)

Appellants;

against

HER MAJESTY'S ADVOCATE

Respondent:

_______

For first appellant: Jackson, QC, Ronnie; George More & Co

For second appellant: Shead, N R Mackenzie; George More & Co

For respondent: Mulholland AD, Solicitor Advocate; Crown Agent

19 February 2004

The convictions
[1] The appellants were tried on indictment with two others at Edinburgh Sheriff Court on five charges of being concerned in the supplying of a controlled drug. One of the other co-accused pled guilty to part of the indictment. The other was acquitted.

[2] The first appellant was convicted on one charge which related to the supply of cannabis resin at various addresses in Edinburgh between 9 May and 23 June 1999. He was sentenced to 12 months imprisonment. He has appealed against both conviction and sentence.

[3] The second appellant was convicted on two charges. The first related to the supply of cannabis resin at various addresses in Edinburgh between 6 February and 8 May 1999. The second related to the supply of amphetamine at a house in Edinburgh between 19 February and 30 March 1999. He was admonished on both charges, the sheriff having taken into account the period that he had spent in custody and the minor nature of his involvement in the supplies referred to. He has appealed against conviction.

[4] We allowed the first appellant to lodge an additional ground of appeal against sentence based on delay and we deferred consideration of his appeal against sentence.

Operation Foil
[5] The indictment resulted from an undercover operation, Operation Foil, begun by Lothian and Borders Police towards the end of 1998 because of the increase in serious drug offences in the Lothians, and in Edinburgh in particular. The operation related mainly to the market in heroin. It was directed by Detective Chief Inspector Alan Gilmour. He gave evidence in open court. His four undercover officers engaged in an elaborate subterfuge to penetrate the drug dealing network. They were authorised to buy drugs from those who seemed willing to sell, but were instructed not to incite the commission of offences. In the course of this operation the officers came into contact at various times and in various ways with each of the accused.

[6] The entire evidence against the accused, so far as material to these charges, consisted of the eyewitness evidence of the undercover officers, who spoke to their direct dealings with the accused, and a series of covert video and audio recordings of incriminating conversations involving the accused. They gave evidence from behind screens.

The trial within a trial
[7] The first witness was the officer referred to in the indictment as "Sean." At the outset of his evidence counsel for the accused objected to the admissibility of a substantial amount of the evidence that the Crown proposed to lead. The objections were that the evidence had been obtained in breach of the accused's rights under article 8 of the European Convention on Human Rights and that the undercover officers had entrapped the accused; and therefore that, on either account, the leading of the evidence would be in breach of article 6.

[8] The sheriff held a trial within a trial. DCI Gilmour said that he had authorised the recordings complained of on the understanding that they were warranted by Home Office guidelines. The parties are agreed that he was mistaken in that understanding. DCI Gilmour said that he also considered that Part III of the Police Act 1997 justified the operation. The parties agree that that Act had not come into force when the operation was begun, and that Part III of it did not apply to an undercover operation of this kind. DCI Gilmour said that he had submitted a full report with recommendations to the Deputy Chief Constable and had been authorised to carry out the operation subject to conditions which he described. DCI Gilmour also described the operation in detail and the principles on which it was conducted.

[9] In her report to the court, the sheriff has referred in outline to the evidence of the individual officers as to the conduct of the operation and their dealings with the accused. For reasons that I will explain, it is unnecessary to go into this aspect of the evidence.

[10] In the course of the submissions on the evidence at the trial within a trial, the procurator fiscal depute made a concession to which the sheriff refers in her report. She says "I understood the Crown's concession to mean that there was no statutory basis for the operation." It is unfortunate that the sheriff did not note the concession verbatim. The result is that the exact extent of the concession is uncertain. According to counsel for the first appellant, the procurator fiscal depute conceded that the whole covert operation was illegal. According to the advocate depute, the procurator fiscal depute conceded only that there had been a breach of article 8 in respect of the making of the covert video and audio recordings.

[11] In my opinion, we should proceed on the basis that the concession was in the terms asserted by the Crown. Of the two versions proposed, that is the more consistent with the sheriff's account, which sets the concession squarely in the context of surveillance by video and audio recording devices. It may be however that the uncertainty on this point no longer matters, because the advocate depute has expressly renewed the concession so far as it relates to the video and audio recordings; and as the hearing went on, counsel for the appellants appeared to be content with that.

The sheriff's decision
[12] The sheriff decided that despite the admitted breach of article 8, the question remained whether there could be a fair trial of the accused under article 6. She did not accept that there was a breach of article 6. In her view, there was an effective procedure by which the evidence could be, and in the event was, challenged; the violation was not intrusive; there was other evidence in the form of the parole evidence of the officers supported by their notebooks; and the recordings were made after the appellants became suspects. She therefore admitted the evidence.

[13] Having regard to the dicta of this court in Weir v Jessop (1991 SCCR 636) the sheriff also concluded that the actings of the officers had not involved pressure, inducement or encouragement for the supply of drugs to them by any of the accused and therefore that the Crown case was not vitiated by entrapment.

The issues in the appeals
[14] I remain to be persuaded that the Convention provides a solution to these appeals that Scots law cannot; but this is not the occasion for a wider discussion of the point. Since the appeals have been argued on both sides in the context of the Convention, there are two issues to be decided, namely (1) on the basis that there was a breach of article 8 to the extent that the Crown now concedes, whether that breach disabled the Lord Advocate from leading the evidence thereby obtained by reason of section 57(2) of the Scotland Act 1998; and (2) whether in any event there was a breach of article 6 by reason of entrapment.

[15] On the first issue, the agreed starting point is that the Lord Advocate, as a member of the Scottish Executive, has no power to do any act so far as that act is incompatible with any of the Convention rights (Scotland Act 1998, s. 57(2)). "Incompatible" in this context means that the act is in conflict with any such right (R v HM Adv, 2003 SC (PC) 21).

[16] Counsel for the second appellant submitted at one stage that the police operation was illegal per se; but he cited no authority for that contention. His final position was that the leading of evidence of the contents of the recordings was an act of the Lord Advocate within the scope of section 57(2). That act was incompatible with the appellants' right under article 8. Therefore the Lord Advocate was prohibited from leading that evidence. The issue of a fair trial under article 6 therefore did not arise. This point had been raised but not decided in Birse v HM Adv (2000 SCCR 505). The Lord Advocate's breach of section 57(2) had consequential effects under the Human Rights Act 1998, which came into force a few days after the sheriff's decision to admit the evidence, but before the end of the trial. The Act applied to the sheriff (Attorney General's Reference No 2 of 2001, [2003] UKHL 68). She failed to correct her decision in the light of the Act. She therefore breached the appellant's right under article 6. Counsel for the first appellant adopted these submissions.

[17] The advocate depute submitted that the Lord Advocate was not disabled by section 57(2) from leading that evidence (a) because the admitted breach of article 8 was not a breach for which the Lord Advocate was responsible, and (b) because the breach of article 8 was relevant only if it led to a breach of article 6, a matter that could be determined only by a trial within a trial. The Crown did not take any point on retrospectivity.

[18] In the course of the hearing, counsel for the parties came to agree that before the court could decide the entrapment point, it would require a more detailed note on the matter from the sheriff and, in all probability, a transcript of parts of the evidence. They agreed that it was appropriate that the court should defer consideration of the point pending its decision on the section 57(2) point.

The interpretation of section 57(2)
[19] This issue involves two questions, namely (a) whether section 57(2) applies only to a breach of a Convention right for which the Lord Advocate is personally responsible, and (b) whether the Lord Advocate is in any event entitled to lead evidence obtained in breach of article 8. These questions arose before, and are not affected by, the passage of the Regulation of Investigatory Powers (Scotland) Act 2000.

(a) To what "act" did section 57(2) apply?
[20] In my opinion, the court must first consider what the "act" of the Lord Advocate was that was relevant to section 57(2). That act, in my view, was the act of leading evidence of the contents of the covert recordings (cf R v HM Adv, supra). At that stage of the case, the admitted breach of article 8 had already been committed by the police. That breach was not an act of the Lord Advocate. Furthermore, although the Lord Advocate sought to rely on evidence obtained by means of the act of the police, his doing so did not make that act an act of his own. The functions of the police and of the Lord Advocate are constitutionally separate and independent. I therefore agree with the submission of the advocate depute that the act that was incompatible with a Convention right was not one to which section 57(2) applied. It follows, in my view, that the Lord Advocate's act in leading evidence of the contents of the recordings was relevant only to article 6.

Was the Lord Advocate entitled to lead evidence obtained in breach of article 8?

[21] The submission for the appellants on this point would be sound only if the infringement of the appellants' rights under article 8 resulted in a breach of article 6. In my view, it did not. The protected interests under articles 6 and 8 are separate and distinct, and the nature and scope of an individual's rights under those articles are determined by different criteria. While the method of obtaining evidence may infringe article 8, the leading of it may nonetheless not infringe article 6. This view is in line with the approach taken by Lord Penrose in HM Adv v Robb (1999 SCCR 971, at pp 976G-977E; cf Connor v HM Adv, 2002 SCCR 423). A similar distinction is recognised in the common law of Scotland (cf Lawrie v Muir, 1950 JC 19). The underlying principle is that of fairness. In modern law that question falls to be decided by means of a trial within a trial (Thompson v Crowe, 2000 JC 173). The question was answered by the sheriff in favour of the Crown and it is not suggested that her decision was unreasonable. Therefore we ought not to disturb it (cf McClory v MacInnes, 1992 SCCR 319; A v HM Adv, 2003 SCCR 154).

Conclusions
[22] For these reasons, I consider that the appeal fails so far as it is based on section 57(2) of the Scotland Act 1998. On that view, the question of a breach by the sheriff of the Human Rights Act 1998 does not arise.

Disposal
[23] I propose that we should refuse the appeal, so far as it is based on section 57(2), and that we should ask the sheriff to submit a further report amplifying her account of the evidence, and her conclusions and reasoning, on the issue of entrapment. Thereafter, we should have a hearing to decide which parts of the notes of evidence, if any, should be extended, and to determine further procedure.

McGibbon & Anor v. Her Majesty's Advocate [2004] ScotHC 13 (19 February 2004)