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Cite as: [2004] ScotHC 48

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Her Majesty's Advocate v. Campbell & Ors [2004] ScotHC 48 (09 August 2004)

HIGH COURT OF JUSTICIARY

OPINION OF LORD HARDIE

in the cause

HER MAJESTY'S ADVOCATE

against

ROBERT CAMPBELL, JOHN WALLACE, JOSEPH WRIGHT, KEVIN MICHAEL CONNOLLY, PATRICIA SLAVEN and KIRSTY CAMPBELL

________________

For the Crown: M. Macleod A.D, Eodanable; Crown Agent

First Accused: Nicol, Gilbride; Beltrami & Co, Glasgow

Second accused: Thom, Farrell; B. McConville & Co., Glasgow

Third accused: Quinn, Solicitor Advocate, Houston Solicitor Advocate; Beltrami Berlow, Glasgow

Fourth accused: Crawley Q.C., Divers; McCluskey Solicitors, Glasgow

Fifth accused: Wallace, Solicitor Advocate, Lavelle Solicitor Advocate; Finlayson Wise, Glasgow

Sixth accused: Scullion, Solicitor Advocate, Taylor, Solicitor Advocate; Hall & Haughey, Glasgow

9 August 2004

[1] On 26 July 2004 the accused appeared at Glasgow High Court in respect of an indictment containing the following charges:

"(1) between 4 December 2002 and 29 December 2003, both dates inclusive, at Collina Street and 75 Foresthall Crescent, both Glasgow, Cross Street, 10 High Street, 36 Hazel Place, the Greenside Hotel, Anderson Drive, Leslie and Falkland, all Fife, at Littlehill Golf Club, Auchinairn Road, Sauchiehall Street, The Willow Hotel, Renfrew Street, Tote Bookmakers, Cambridge Street, Central Station, Gordon Street, London Road, Flat 2/2, 90 Lenzie Street, 28 Keppoch Street, The Cairn Public House, Balornock Road, 53 Acredyke Road, Quarrywood Road, The Dairy, 22 Quarrywood Avenue, 52 Brookfield Drive, The Forge Retail Park, Parkhead, Stobhill Hospital, Renfield Street, all Glasgow, in motor vehicles travelling between Glasgow, Liverpool and Manchester, 437 Walton Breck Road, 65 Queens Drive, Liverpool, Priory Hospital, Altringham, Manchester and elsewhere in Glasgow, Fife and the United Kingdom, you ROBERT CAMPBELL, JOHN WALLACE, JOSEPH WRIGHT, KEVIN MICHAEL CONNOLLY, PATRICIA SLAVEN and KIRSTY CAMPBELL were concerned in the supplying of a controlled drug, namely Diamorphine, a Class A drug specified in Part 1 of Schedule 2 to the aftermentioned Act, to another or others, including in particular to Dennis James David Carr or McLaughlin, born 6 February 1973, present whereabouts unknown, Peter Vincent Gasparini, 50 Newhaven Road, Edinburgh and David James Laidlaw McPhee, 3B Davids Loan, Bainsford, Falkirk, in contravention of Section 4(1) of said Act: CONTRARY to the Misuse of Drugs Act 1971, Section 4(3)(b);

you JOHN WALLACE did commit this offence while on bail, having been granted bail on 5 September 2003 at Glasgow Sheriff Court;

and

(2) on 29 December 2003 at Baird Street Police Office, Glasgow, you JOHN WALLACE did have in your possession a controlled drug, namely Cocaine, a Class A drug specified in Part 1 of Schedule 2 to the aftermentioned Act, in contravention of Section 5(1) of said Act: CONTRARY to the Misuse of Drugs Act 1971, Section 5(2);

you JOHN WALLACE did commit this offence while on bail, having been granted bail on 5 September 2003 at Glasgow Sheriff Court."

[2] The accused severally pled not guilty to the charges against them and the trial commenced on 26 July. In the course of the evidence in chief of the first witness in the trial, Detective Constable John McCurdy (Crown witness 55), Mr. Thom, counsel for the second accused objected to the line of evidence concerning police officers stopping a taxi being driven by the second accused on 4 September 2003 in Provan Road, Glasgow. The basis of the objection was that it was alleged that the second accused had been under police surveillance prior to his detention. There was no authorisation for such surveillance in terms of section 5 of the Regulation of Investigatory Powers (Scotland) Act 2000 (hereinafter referred to as "the Act"). Under reference to Crown productions 1 to 4 inclusive it was clear that on 4 September 2003 the only authorisation produced by the Crown related to the first accused (Crown production 4). Crown production 133 was the first authorisation relative to the surveillance of the second accused. That authorisation was dated 15 September 2003. Counsel also referred to Crown productions 26 and 27 being respectively the surveillance logs for 2 and 4 September in which the second accused is described as "the subject". It was submitted that in the absence of authorisation for the surveillance of the second accused, his detention was unlawful and any object recovered from him on 4 September was unlawfully obtained. Accordingly any evidence relating to the recovery of controlled drugs from the possession of the accused should be excluded.

[3] In response the Advocate Depute submitted that the correct approach to determining the admissibility of the evidence was in two stages. The first stage was to determine whether there had been a fundamental irregularity in procedure. The second stage, which only arose if there was such a fundamental irregularity, involved an assessment of whether the accused's right to a fair trial would be infringed if the evidence were admitted. The Advocate Depute further submitted that the approach adopted by Mr. Thom was in error because the word "subject" in the surveillance logs had to be construed in context. It may refer to the principal object of the surveillance or to an associate of such a person. The Crown's position was that the second accused was properly described as an associate of the first accused by virtue of observations on 2 and 4 September. In that event it was submitted that the second accused, as an associate of the first accused, was covered by the authorisation in force at that time (Crown production 4).

[4] Having heard submissions I determined to hold a trial within a trial in the course of which evidence was led from Detective Constable McCurdy and Detective Sergeant Lochhead (Crown witness 16). I did not consider that there was any conflict between the evidence of these two officers. In cross-examination Detective Constable McCurdy confirmed that he would expect authorisation to be obtained for surveillance of a "target". I did not understand Detective Sergeant Lochhead to dispute this. However that is not the issue in the present case. The issue is whether on 4 September the second accused was the target or principal object of the surveillance or one of a number of such targets or whether he was merely an associate of such a target. Detective Constable McCurdy's evidence did not assist in resolving this difficulty whereas Detective Sergeant Lochhead was the reporting officer and confirmed that at the relevant date the second accused was merely an associate of the target, who was the first accused. The second accused did not become a target until after 4 September. I accepted that evidence. I have also concluded that on a fair construction of Crown production 4 it authorised the surveillance not only of the first accused but also of his associates. In my opinion associates are not confined to people whom the target meets on a particular day and who are thereafter followed. Associates may include known associates of the target. Moreover I consider that it is legitimate for police officers to commence observations on an associate on a particular day with a view to compiling evidence against the target. I reject the submission by Mr. Thom that it was necessary to commence each day with observations on the target and associates could only be watched and/or followed if, or when, they met the target.

[5] In summary I have concluded that surveillance of the second accused, as an associate of the first accused, was authorised in terms of the Act and that evidence thereby obtained was lawfully obtained and is, therefore, admissible. That is sufficient to dispose of the objection.

[6] However for the sake of completeness I would add that the Act was introduced to provide a basis for the organs of the state to interfere with the Article 8 Convention rights of the subject, in response to the criticisms of the European Court of Human Rights. The basis of these criticisms was the absence of a clear statutory framework justifying interference with Article 8 rights and appeared in a series of cases culminating in Khan v United Kingdom (2001) 31 EHRR 45. Although that decision post-dated the enactment of the Act, it related to events in 1992. The criticisms of the United Kingdom by the court in Khan mirrored the court's criticisms in earlier cases. Nevertheless it is clear from Khan v United Kingdom that even where there is a breach of Article 8 that is not determinative of the issue of a fair trial. That is also the position reflected in the decisions of this Court. In McGibbon v HMA 2004 SCCR 193 the Lord Justice Clerk observed at page 198:

"While the method of obtaining evidence may infringe Article 8, the leading of it may none the less not infringe Article 6...A similar distinction is recognised in the common law of Scotland (Lawrie v Muir). The underlying principle is that of fairness."

[7] In the present case even if I had concluded that there had been an irregularity in the surveillance of the second accused, I would have excused the irregularity. It is clear that the reporting officer genuinely believed that it was unnecessary to have authorisation to undertake such surveillance. Thus any irregularity would have been attributable to genuine error rather than deliberate defiance of the Act. As a result of the detention of the second accused a substantial quantity of diamorphine was found in his possession. In Lawrie v Muir 1950 JC 19 Lord Justice General Cooper observed at page 27:

".. it would usually be wrong to exclude some highly incriminating production in a murder trial merely because it was found by a police officer in the course of a search authorised for a particular purpose or before a proper warrant had been obtained."

If I had required to balance the public interest in the present case against the interests of the accused, I would have concluded that the balance was in favour of the admissibility of the evidence of the detention of the second accused and the discovery of the diamorphine in his possession.