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Gilchrist & Anor v. Her Majesty's Advocate [2004] ScotHC 53 (24 August 2004)

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Justice General

Lord Osborne

Lord Macfadyen

Appeal Nos: XC313/04

XC314/04

OPINION OF THE COURT

delivered by LORD MACFADYEN

NOTES OF APPEAL

under section 74 of the Criminal Procedure (Scotland) Act 1995

KENNETH ALEXANDER GILCHRIST

and

DENNIS JAMES QUINN

Appellants;

against

HER MAJESTY'S ADVOCATE

Respondent:

_______

Appellant: Jackson, Q.C.; Beaumont & Co. (Gilchrist):

Kerrigan, Q.C., Borthwick; Fairbairns (Quinn)

Respondent: McConnachie, A.D.; Crown Agent

24 August 2004

Introduction
[1] The appellants, Kenneth Alexander Gilchrist and Dennis James Quinn, stand indicted together at the instance of the respondent on two charges of being concerned in the supplying of controlled drugs to another or others in contravention of section 4(3)(b) of the Misuse of Drugs Act 1971. The drugs mentioned in charges 1 and 2 are respectively cannabis resin and cannabis. In addition the first appellant faces four charges of possession of controlled drugs (cannabis resin, cocaine, temazepam and again cannabis resin) in contravention of section 5(2) of the 1971 Act.

[2] When the indictment called at the first diet on 6 January 2004, both accused pled not guilty, but the trial diet was adjourned to enable the second appellant to present a minute raising a devolution issue. When that minute came to debate, it emerged that the first appellant wished to argue a related issue of admissibility of evidence, and he was allowed to do so. The issues debated related to the admissibility of evidence obtained in the course of a surveillance operation conducted by police officers.

[3] In brief, the devolution issue raised by the second appellant was that the evidence which was to be led against him included evidence obtained by directed surveillance, for which authorisation under the Regulation of Investigatory Powers (Scotland) Act 2000 (RIPSA) was required; that the authorisation obtained was invalid for want of adequate detail; that consequently the second appellant's rights under article 8 of the European Convention on Human Rights (the Convention) had "not been protected"; that for the Crown to lead evidence obtained by means of that infringement of his article 8 rights would compromise his right to a fair trial under article 6 of the Convention and was accordingly beyond the powers of the Lord Advocate by virtue of section 57(2) of the Scotland Act 1998; and that the court should therefore refuse to allow the evidence to be led. The first appellant's contention was that the evidence so obtained was likewise inadmissible against him.

[4] The Sheriff held that there was in the circumstances no infringement of the second appellant's rights under article 8. He held that what was done by the police at the time when the evidence in question was obtained did not require authorisation under RIPSA, and that the evidence was therefore admissible. He further held obiter that the authorisation obtained by the police under RIPSA was invalid, and that, had such authorisation been required, the irregularity in the authorisation could not have been cured and the evidence would therefore have been inadmissible.

Article 8 of the Convention and RIPSA
[5] Article 8 begins by stating the right to respect for private and family life in the following terms:

	"1.	Everyone has a right to respect for his private and family life, his home and his correspondence."
It then qualifies the right. So far as is material for the purposes of this case, the qualification is in the following terms:
	"2.	There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society ... [inter alia] for the prevention of disorder or crime ..."

[6] It is important for a proper understanding of RIPSA to take note of the fact that article 8.2 of the Convention provides the context in which it came to be enacted. In Khan v United Kingdom (2001) 31 EHRR 45 the European Court of Human Rights held that since, at the time of the events with which that case was concerned, there existed no domestic law to regulate covert surveillance, it could not be said that such surveillance was "in accordance with the law". It was not sufficient for the purpose of invoking the exception provided for in article 8.2 to show that such surveillance was not prohibited by law and was undertaken for a qualifying purpose. There required to be a scheme of regulation of such surveillance which formed part of the law.

[7] RIPSA therefore set up, for Scotland, a statutory regulatory scheme in terms of which article 8.2 could be invoked when surveillance was conducted in accordance with authorisation obtained under the Act. The Act applies to various forms of surveillance (section 1(1)). The sort with which this case is concerned is "directed surveillance" (section 1(1)(a)), which is defined in section 1(2) as follows:

	"For the purposes of this Act surveillance is directed if it is covert but not intrusive and is undertaken ―
	(a)	for the purposes of a specific investigation or a specific operation;
	(b)	in such a manner as is likely to result in the obtaining of private information about a person (whether or not one specifically identified for the purposes of the investigation or operation); and
	(c)	otherwise than by way of an immediate response to events or circumstances the nature of which is such that it would not be reasonably practicable for an authorisation under this Act to be sought for the carrying out of the surveillance."

For surveillance to be "directed surveillance", therefore, it requires to be "covert" but not "intrusive". In terms of section 1(8)(a), surveillance is covert "if, and only if, it is carried out in a manner that is calculated to ensure that persons who are subject to the surveillance are unaware that it is or may be taking place". Intrusive surveillance is defined in section 1(3), (4) and (5), and it is sufficient for present purposes to note that it is not suggested that the surveillance undertaken in the present case was intrusive. The phrase "private information" used in the definition of directed surveillance is not exhaustively defined in RIPSA, but section 1(9) indicates that, in relation to a person, the phrase "includes any information relating to the person's private or family life".

[8] Section 5(1) of RIPSA provides as follows:

	"Conduct to which this Act applies shall be lawful for all purposes if ―
	(a)	an authorisation under this Act confers an entitlement to engage in that conduct on the person whose conduct it is; and
	(b)	that person's conduct is in accordance with the authorisation."

The procedure for obtaining authorisation for directed surveillance is set out in sections 6, 8 and 11 of RIPSA. It is unnecessary for the purposes of these appeals to examine those provisions in detail.

The facts
[9] For the purposes of the debate before him, an agreed narrative of the facts of the case was placed before the Sheriff. He summarised the agreed facts on pages 3 and 4 of his Note dated 23 April 2004. For the purposes of these appeals it is possible to compress that summary further.

[10] Some time before 18 March 2003 a police officer received confidential information which suggested that the second appellant and two others were concerned in the supplying of controlled drugs. He applied to a superintendent under section 6 of RIPSA for authorisation of directed surveillance on the second appellant and two other named persons (not including the first appellant). An authorisation was granted, bearing to be valid from 18 March to 17 June 2003. Surveillance began on 23 April and continued on the following day. A surveillance log was prepared by the officers involved, and it is accepted that productions 7 and 8 are typescript copies of the logs for 23 and 24 April respectively.

[11] Production 7 contains a large number of entries by several officers recording observations of the movements and conduct of the second appellant during the afternoon and early evening of 23 April. Production 8 contains entries of the same nature recording observations of the movements and conduct of the second appellant on 24 April, beginning at 12.55. The entries for the period from 19.06 to 19.08 are in the following terms:

	"1906	Subject has met with male in Easter Road.
	1907	The male the subject has met is young, short and carrying a carrier bag. Both the subject and associate have walked away in Easter Road and turned into Albion Road.
	1908	The subject and associate are walking side by side in Albion Road in conversation.
	1908	The subject has taken possession of the carrier bag from the male associate.
		The subject is now walking back towards Easter Road and the associate continuous (sic) walking in the opposite direction in Albion Road.
	1908	Both subject and associate to be detained."

The person referred to in the log as "the associate" was the first appellant. It was matter of agreement before the Sheriff that all these observations were carried out from a public place.

[12] On being detained the appellants were taken to a police station and searched. The second appellant was found to be in possession of a carrier bag, as referred to in the surveillance log. It was found to contain twelve bars of cannabis resin weighing a total of just under 3 kilograms, as well as approximately 1 kilogram of herbal cannabis.

The validity of the RIPSA authorisation
[13] Before this court it was accepted by the Crown that the RIPSA authorisation granted in respect of the directed surveillance of the activities of the second appellant was invalid. In short, that was so because the authorisation failed adequately to state the grounds on which it was necessary and proportionate to what was sought to be achieved (section 6(3)), and failed to give a specific description of the directed surveillance that was authorised (section 6(4)). The appeals therefore proceeded on the basis that the RIPSA authorisation under which the police officers purported to act in conducting directed surveillance of the second appellant was invalid.

Submissions for the appellants
[14] For the second appellant, Mr Kerrigan submitted that the consequence of the fact that the RIPSA authorisation under which the directed surveillance of the second appellant was carried out was invalid was that the evidence obtained in the course of that surveillance was inadmissible. It was by virtue of the existence of that authorisation that the surveillance was being undertaken. But for the authorisation, the police officers would not have been in Albion Street at the time when the transaction between the second appellant and the first appellant was observed. The fact that the officers had other powers which they might have deployed if they had happened upon the transaction otherwise than in the course of a directed surveillance operation was beside the point when all that was observed was observed in the course of an operation which purported to be authorised under RIPSA. It was wrong to focus exclusively on the few minutes reflected in the passage from the surveillance log quoted in paragraph [11] above. The focus required to be on the operation as a whole. That operation was one which required an authorisation under RIPSA, because it involved directed surveillance, and was thus by definition "likely to result in the obtaining of private information about" the second appellant. It followed, at least in the circumstances of this case, that to conduct that operation without a valid RIPSA authorisation involved a contravention of the second appellant's rights under article 8(1). For the Crown to rely on evidence obtained by means of such a contravention was beyond the powers of the Lord Advocate by virtue of section 57(2) of the Scotland Act. Such reliance would contravene the second appellant's right to a fair trial under article 6.

[15] Mr Jackson for the first appellant submitted that it was not legitimate to separate the last few minutes of the surveillance operation from the rest of the operation: as he put it, the surveillance operation could not be "salami-sliced". The operation, viewed as a whole, required RIPSA authorisation. What happened in Albion Road at 19.08 on 24 April was not an isolated incident which the police officers just happened to observe. It was the culmination of a surveillance operation which began on the previous day. Since that operation was one which required RIPSA authorisation, it followed that the lack of valid authorisation meant that the whole operation lacked the necessary authorisation and was therefore in contravention of article 8. The result was that the Crown could not rely on evidence obtained in the course of the unauthorised surveillance, and that such evidence was therefore inadmissible.

Submissions for the Crown
[16] The Advocate depute submitted that the Sheriff was right to hold that the invalidity of the RIPSA authorisation did not in the circumstances render the evidence of what was observed in Albion Street at 19.08 on 24 April inadmissible. He reminded us of the context in which RIPSA came to be enacted (see paragraph [6] above). He submitted that the legislative purpose was largely to afford protection to police surveillance operations and to provide a basis on which, in face of a challenge under article 8, the authorities could invoke the exception provided for in article 8.2. If there was a breach by the police of article 8, it did not follow that the evidence thereby obtained was inadmissible (McGibbon v H. M. Advocate 2004 SCCR 193). Moreover, contrary to the submissions on behalf of the appellants, it was legitimate to focus on the particular events of the observed transaction in Albion Street, and to treat the observation of those events as not requiring a RIPSA authorisation. Instead, they were simply events observed by police officers in a public place, evidence of which was admissible. To take any other view meant that the obtaining of a RIPSA authorisation curtailed the powers of the officers when they observed criminal conduct in a public place. In any event, the observation of the transaction in Albion Street could not be regarded as a breach of the rights of the second appellant under article 8. It involved no lack of respect for his private or family life (Connor v H. M. Advocate 2002 SCCR 422). The invalidity of the RIPSA authorisation therefore did not render the evidence of what transpired in Albion Street inadmissible.

Discussion
[17] In our opinion the fallacy in the appellants' argument lies in the proposition that, because the surveillance operation was being carried out under an invalid RIPSA authorisation, there was an infringement of the rights of the second appellant under article 8.

[18] The police officers who wished to carry out the surveillance operation on the movements and activities of the second appellant no doubt wished to avoid a situation in which their operation might be held to infringe the rights of the second appellant under article 8. They no doubt wished to be in a position, if it was claimed that there was an infringement of those rights, to invoke the exception provided for in article 8.2 by showing that such interference with the rights as had taken place was "in accordance with the law" and "necessary in a democratic society ... for the prevention of ... crime". In order to secure that they were in that position they required to obtain, and act in accordance with, an appropriate authorisation under RIPSA (section 5(1)). In order to identify the appropriate authorisation, they required to consider the nature of the surveillance which they proposed to undertake. They no doubt took the view, rightly, that what they proposed was "covert" surveillance within the meaning of section 1(8)(a). They no doubt also took the view that it was not "intrusive" within the meaning of section 1(3), (4) and (5). It was therefore "directed surveillance", if it was undertaken in the circumstances set out in section 1(2)(a) to (c). It was undertaken for the purpose of a specific investigation (section 1(2)(a)). It was undertaken otherwise than by way of immediate response to events in the way contemplated in section 1(2)(c). So far as section 1(2)(b) is concerned, the question which required to be addressed was whether the surveillance was to be undertaken "in such a manner as to be likely to result in the obtaining of private information about a person". No doubt they concluded that that question fell to be answered in the affirmative. It followed that, for the operation as a whole, if they were to be sure of keeping open the possibility of invoking article 8.2 in defence to any allegation that they had infringed the subject's rights under article 8, they required authorisation under section 6 for directed surveillance.

[19] In the event, the authorisation obtained was, as the Crown accepts and as we have already noted in paragraph [13] above, invalid. The consequence of that was that, if they infringed the subject's rights under article 8, the police officers had no sufficient basis on which to invoke the article 8.2 exception. There is, however, in our opinion no logical basis for assuming, as the appellants do, that everything done under the invalid authorisation was, by virtue of that invalidity, an infringement of article 8. Whether a particular aspect of the operation involved an infringement of the second appellant's article 8 rights requires to be considered independently of whether there was or was not a valid RIPSA authorisation. The authorisation is concerned with the availability of recourse to the exception, if there was what would otherwise be an infringement of article 8. It is not concerned with whether there was such an infringement.

[20] It is therefore necessary to ascertain whether what happened in Albion Street at 19.08 on 24 April involved any infringement of the second appellant's rights under article 8. For that purpose the question is not whether the operation was directed surveillance, or in particular whether it was "likely" to obtain private information about the second appellant. The question of the likelihood of obtaining such private information is part of the definition of directed surveillance, because at the stage of authorising directed surveillance it is impossible to know whether such private information will in fact be obtained. When it comes to deciding whether there has actually been an infringement of article 8 rights, however, it is known what information has been obtained. The question in that context is therefore whether what was done actually amounted to an infringement of article 8 rights.

[21] What took place in Albion Street at the relevant time was that a plastic bag was handed by the first appellant to the second appellant. That was done in a public place. The event was there to be observed by anyone who happened to be in the vicinity, whatever the reason for their presence might be. It was in fact observed by police officers. They had reason to suspect that criminal activity was taking place. They therefore detained the appellants. On further investigation it was found that the bag contained controlled drugs. That sequence of events did not involve the obtaining of private information about the second appellant, in the sense mentioned in section 1(9), or in any broader sense. Nor did it involve any lack of respect for the second appellant's private life. What was done did not, in our opinion, amount to an infringement of the second appellant's rights under article 8.

[22] Since there was no infringement of the second appellant's article 8 rights, there is no need for the police officers to seek to rely on the article 8.2 exception. The fact that the invalidity of the RIPSA authorisation would have prevented them from doing so if the need had arisen is therefore nothing to the point. The attack on the admissibility of the evidence of the events in Albion Street must fail.

Result
[23] For these reasons the appeal at the instance of each appellant is refused.