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You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> Henderson & Anor v. Her Majesty's Advocate [2005] ScotHC HCJAC_47 (14 April 2005)
URL: http://www.bailii.org/scot/cases/ScotHC/2005/HCJAC_47.html
Cite as: [2005] HCJAC 47, 2005 SCCR 354, [2005] ScotHC HCJAC_47, 2005 GWD 13-222, 2005 1 JC 301, 2005 SLT 429
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Henderson & Anor v. Her Majesty's Advocate [2005] ScotHC HCJAC_47 (14 April 2005)
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APPEAL COURT, HIGH COURT OF JUSTICIARY |
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Lord Marnoch Lord Hamilton Lord Weir
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[2005HCJAC47] Appeal Nos: XC247/02 XC248/02 OPINION OF LORD MARNOCH in APPEALS by ALEXANDER HENDERSON and DOUGLAS MARNOCH Appellants; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Appellant: Duguid, Livingstone; George Mathers, Aberdeen (for Henderson):
Shead, Latif; Gilfedder & McInnes (for Marnoch)
Respondent:
Bain, A.D.; Crown Agent14 April 2005
[1] Both appellants were convicted, after trial, of a charge of extortion and the first appellant was also convicted of a charge of being concerned in the supplying of cannabis resin, contrary to section 4(3)(b) of the Misuse of Drugs Act 1971. [2] The only ground of appeal for the first appellant and the only ground of appeal now insisted in by the second appellant is that there was wrongly admitted at the trial evidence of a telephone call said to have been made by the first appellant to the home of a Mr. and Mrs. Pell on 22 May 2001. In the course of the conversation which took place the caller was heard asking for money and threatening to "wipe out your hale fuckin' faimly". However, the real importance of the call is that, with the agreement of Mr. and Mrs. Pell, a tape recording device had been installed by the police on their telephone line and evidence was subsequently given by three police officers that they were able to identify the voice of the caller on the tape as being that of the first appellant. This provided essential corroboration of the case against the first appellant on both the charges which he faced. The second appellant also has an interest in the matter in so far as the case against him on the extortion charge depends on the application of the doctrine of concert as between himself, the first appellant and another man, Murray Alan Coutts. [3] Mr. Duguid, Q.C., for the first appellant, made it clear that, so far as he was concerned, the sole ground of complaint regarding the admissibility of the evidence to which I have referred was that the Crown had failed to prove that the installation of the recording device in Mr. and Mrs. Pell's home in Hampshire had been "authorised" under section 3(2)(b) of the Regulation of Investigatory Powers Act 2000. Section 3(2) of that Act relates to interception of a communication which has been consented to by one or other, but not both, of the sender and recipient, and such an interception is authorised if "(b) surveillance by means of that interception has been authorised under Part II". Part II of the Act commences at section 26 which breaks down the activities covered by the Act into "directed surveillance", "intrusive surveillance" and the "conduct and use of covert human intelligence sources". In particular, section 26(2) provides, inter alia, that:"(2) ... surveillance is directed for the purposes of this Part 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); ... ".
It was agreed by the advocate depute and counsel for the appellants that the interception carried out in the present case fell within that definition of "directed surveillance". This, in turn, meant that under section 28 of the Act, and regulations made thereunder, only a police superintendent could properly have authorised what was done. There is little doubt that the main purpose of the Act was to ensure compliance with Article 8 of the European Convention on Human Rights and to fill the gap identified by Lord Nolan in Reg. v. Khan 1997 AC 558 at p. 582. In that connection, Article 8.1 of the Convention provides:
"(1) Everyone has the right to respect for his private and family life, his home and his correspondence."
[5] Quid iuris?
[6] The starting point, in my opinion, is that it is not every breach of the law - common law or statutory - which impacts on the admissibility of evidence at a criminal trial. Thus, in the recent case of Kennedy v. Laing 2005 GWD 10, it was held to be of no account that evidence had been obtained against a gamekeeper by persons who had entered on lands without the permission of the proprietor. Likewise, while detention in a police station in excess of the period permitted under section 14 of the Criminal Procedure (Scotland) Act 1995 would doubtless give rise to a claim for damages, there is at least a question as to whether it would, as such, have any effect on the admissibility of a statement made by an accused after the expiry of that period - Tonge v. H.M. Advocate 1982 J.C. 130, particularly per Lord Cameron at p. 147; unnoticed in the subsequent case of Grant v. H.M. Advocate 1989 S.C.C.R. 618. Other examples can doubtless be figured, such as where evidence is obtained by persons who have breached the provisions of some statute directed solely to the protection of the environment. In such cases, it seems to me, there is simply nothing to excuse - for the simple reason that the interests of accused persons are in no way within the purview of, or affected by, the legal requirements in question. [7] The present case does not, in my opinion, fall into the category which I have just been discussing. On the contrary, I accept that a right to privacy is an important right of all citizens in a free and democratic society. Whatever its origins, the 2000 Act is broadly and comprehensively drafted and it is clear that its provisions are designed to give rise to both civil and criminal liability. In my opinion, therefore, the only question, ultimately, on this branch of the case, is whether, on an application of the principles of Lawrie v. Muir cit. sup., a lack of authorisation under the Act can, in the circumstances, be excused. There is, indeed, no shortage of authority for adopting that approach in the jurisprudence of both Strasbourg and Scots law. In Khan v. United Kingdom cit. sup. the European Court of Human Rights, by six votes to one, approved as compatible with the Article 6.1 right to a "fair hearing" a not dissimilar process of reasoning based on section 78(1) of the Police and Criminal Evidence Act 1984. And, in Schenk v. Switzerland 1988 13 E.H.R.R. 242, at paras. 44 et. seq., it can be seen that the Federal Court in Switzerland also conducted a similar balancing exercise without adverse comment by the European Court which, indeed, went out of its way to say that admissibility of evidence was primarily a matter for national law. So far as Scottish domestic law is concerned, a breach of Article 8 was excused, for purposes of Article 6 and a fair trial, by reference to the principles set down in Lawrie v. Muir in Hoekstra v. H.M. Advocate (No. 5) 2002 S.L.T. 599 at pps. 608-609. I note, however, that at p. 609C there appears the following sentence:"If the illegality had consisted or resulted in the recording of conversations, for example, a very strong argument might have been presented that any such evidence was inadmissible."
In McGibbon v. H.M. Advocate 2004 S.L.T. 588, however, where conversations were recorded, the court, again under reference to Lawrie v. Muir, appears to have approved a decision of the sheriff to excuse an infringement of Article 8 in the overall context of compliance with Article 6 and the basic requirement for "fairness".
[8] It remains, then, to apply the principles of Lawrie v. Muir, to the circumstances of the present case. In that connection, while I accept that the relative exercise would better have been performed in the first instance by the trial judge, I do not consider that this court is now precluded from, itself, embarking on it. As to that, I agree with a submission made, in passing, by Mr. Shead that the application of these principles is ultimately a determination in law rather than being simply an aspect of discretion. In any event, for the reasons I am about to give, I would be prepared to say that the only reasonable exercise of discretion in this case would be to excuse the irregularity in question. [9] In the first place, unlike, for example, the statutory and other requirements of a legal search, the requirements of the Regulation of Investigatory Powers Act 2000 are not specifically directed to the protection of persons suspected of crime. On the contrary, the Act is, as I have already said, clearly designed to give rise to possible civil as well as criminal liability and, in that situation, it is well to keep in mind what was said by Lord Justice General Cooper in Lawrie v. Muir cit. sup. at pps. 26-27:"The protection of the citizen is primarily protection for the innocent citizen against unwarranted, wrongful and perhaps high-handed interference, and the common sanction is an action of damages. The protection is not intended as a protection for the guilty citizen against the efforts of the public prosecutor to vindicate the law."
Henderson & Anor v. Her Majesty's Advocate [2005] ScotHC HCJAC_47 (14 April 2005)
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APPEAL COURT, HIGH COURT OF JUSTICIARY |
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Lord Marnoch Lord Hamilton Lord Weir
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[2005HCJAC47] Appeal Nos: XC247/02 XC248/02 OPINION OF LORD HAMILTON in APPEALS by ALEXANDER HENDERSON and DOUGLAS MARNOCH Appellants; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Appellant: Duguid, Livingstone; George Mathers, Aberdeen (for Henderson):
Shead, Latif; Gilfedder & McInnes (for Marnoch)
Respondent: Bain, A.D.; Crown Agent
14 April 2005
[18] I agree with your Lordship in the chair that these appeals against conviction should be refused. [19] The first appellant was convicted of charges (1) and (3) on the indictment. The principal witness against him on those charges was one of the complainers on charge (3), Anton Pell, who in court identified the first appellant as the person who had committed various acts constituting the crimes charged. The Crown relied for corroboration of that evidence principally on a tape recording of a telephone conversation which took place on 24 May 2001, when a call was made to the home in Hampshire of the father and step-mother of Anton Pell. The caller was a male who spoke first to Anton Pell's step-mother and then to his father. Shortly into the call a different male took over from the caller. That different male then had a long exchange with Anton Pell's father, in the course of which the former made a number of statements indicative of his participation in the crimes charged. Various police officers testified at the trial that the voice of that male, heard on the tape recording, was the voice of the first appellant. [20] The telephone conversation in question was recorded because, following a complaint received by them from Mr. Pell, Senior, and his wife, officers of Hampshire police had installed a recording device on the telephone line to the complainers' home. The terms of the conversation were recorded by it on tape. That tape was a Crown label production at the trial of the appellants. [21] The issue in these appeals is whether the Crown was entitled to use the tape recording in evidence for the purpose of identifying the first appellant as the maker of the relevant statements in the course of that conversation. The second appellant, while not a party to the telephone conversation, has an interest in the outcome of the issue with which the first appellant's appeal is concerned, since the case against him depended substantially on proof of association with the first appellant. [22] In the course of the examination-in-chief of Anton Pell the Advocate depute indicated that he intended to have the tape played. At that point counsel for the first appellant intimated that he had an objection in connection with that production. The jury retired and in their absence a debate took place in which counsel for the first appellant developed an objection to the admissibility in evidence of that label production. Counsel for the second appellant associated himself with that objection. Perusal of the notes of evidence reveals that there was some confusion about the true issues arising. It was recognised that the Regulation of Investigatory Powers Act 2000 (the "2000 Act") regulated the use by police officers in Hampshire of a recording device for the purpose of intercepting telephone communications. The objection was presented on the basis that the Crown were"neither seeking to prove that any authorisation existed, nor do they have a witness on the present witness list who is capable of indicating that he gave that authorisation".
It was acknowledged by counsel that included on the Crown list of witnesses, but not yet led in evidence, was a Detective Inspector Purvis of Hampshire police who, it was understood, would be in a position to speak to his having sought from a more senior officer, a Superintendent Lane, an authorisation for that purpose. Much of the discussion in the debate thereafter appears to have centred on whether only the grantor of the authorisation could speak to its grant. It was contended by counsel for the first appellant that evidence from the applicant for the grant would be "hearsay" and so inadmissible. In the event the trial judge dismissed the objection, holding that the tape recording was admissible "provided the police officer speaks to asking for and receiving his authority". He also indicated, under reference to Lawrie v. Muir 1950 JC 19, that "it would seem to me at least arguable that [the tape recording] is admissible at common law". The jury returned and the tape was played in their presence. In the course of his resumed testimony Anton Pell identified the relevant voice heard on the recording as that of the first appellant, as subsequently did several police officers. The Crown relied upon the voice identification evidence of the police officers as corroboration of Anton Pell's evidence implicating the first appellant in the crimes.
[23] In the course of the debate there appears to have been no discussion as to whether any authorisation to be relied on by the Crown was one granted orally or was one granted in writing. No reference was made to section 43 of the 2000 Act which provides that in certain limited circumstances an authorisation for directed surveillance may be granted orally; the statute requires that otherwise it be in writing. [24] Detective Inspector Purvis subsequently gave evidence. He testified that he had installed the tape recording device on the Pells' telephone line and he identified the relative Crown label production as the recording made. In examination-in-chief he spoke in general terms to having carried out the installation under the authority of a superintendent. In cross-examination by the first appellant's counsel, Detective Inspector Purvis was questioned in more detail about the authorisation for the installation. He testified that he had sought authorisation verbally. He was asked by the cross-examiner whether he had ever seen the authorisation itself to which he replied - "Only some time afterwards", but could not recall when. The import of his evidence was that the authorisation had been in writing, although he was unable to recall its terms. No authorisation in writing was produced by the Crown at the trial. [25] Mr. Duguid for the first appellant submitted before us that the writing itself was the best evidence of the terms of any authorisation and, in the absence of proof that the writing had been destroyed or was for some other sufficient reason unavailable, was the only admissible evidence of its terms. No competent evidence had been adduced by the Crown that a relevant authorisation in writing in respect of the telephone interception had been granted. Nor had it led evidence that the preconditions for an oral authorisation had been satisfied or that an authorisation by that mode had been granted. [26] In response the Advocate depute submitted in the first place that, on the evidence led at the trial, the interception had been duly authorised and was thus lawful. On that basis the tape recording, being the product of a duly authorised interception, had been properly admitted. She relied on the evidence of Detective Inspector Purvis, elicited in cross-examination, that he had seen the authorisation in writing and had acted under it. [27] In my view that submission is unsound. Where, as ultimately emerged, the authorisation relied on was in writing, the only admissible evidence as to its terms was, in the circumstances, the writing itself. While the fact that some writing existed might be provable by evidence from a person who had seen it, in the circumstances of this case it was, in my view, necessary for the Crown to prove at least that the authorisation related to the specific investigation or operation (2000 Act, section 26(2)), that the authorisation conferred on the relevant person an entitlement to engage in the relevant conduct (section 27(1)) and, by reference to its date, that it was in force at the relevant time (section 43(3)). Proof of the terms of the document was necessary for that purpose. It may be that further terms also required to be proved. For example, section 28(2) provides that the person granting the authorisation must believe that the authorisation is necessary on certain specified grounds and that the authorised surveillance is proportionate to what is sought to be achieved by carrying it out. The grounds for such belief may require to be stated on the face of the authorisation, the validity of which may, in some circumstances, be open to challenge (Gilchrist v. H.M. Advocate 2004 S.C.C.R. 595 at para. [13], where the equivalent provisions of the Scottish legislation are noted). Accordingly, to prove that the surveillance was lawful the Crown required, in my view, to produce, if it was available, the authorisation in writing. Its proof on that matter failed. [28] Non-production of a written authority required to recover evidence is not necessarily fatal to the acceptance at trial of evidence recovered (Nocher v. Smith 1978 S.L.T. (N) 32). A similar rule applies in relation to evidence flowing from a listening device placed in breach of Article 8 of the European Convention on Human Rights (Hoekstra v. H.M. Advocate (No. 6) 2002 S.C.C.R. 135 at paras. [26] - [32]). The decisions in these cases, each to the effect that the challenged evidence had properly been admitted, turned on the application of the principles set out in Lawrie v. Muir. The Advocate depute relied on these principles in support of an alternative submission that, even if the telephone interception of the Pells' line had not been proved to have been lawful, nonetheless the content of the tape recording was in all the circumstances admissible as a matter of domestic law. [29] It is unfortunate that the particular considerations relevant to the application of Lawrie v. Muir were not better focused before the trial judge. It ought, in the first instance, to be a matter for determination, on the discretionary principle of fairness, by the judge at trial as to whether, in the particular circumstances, evidence irregularly obtained should be admitted. Lawrie v. Muir was mentioned in the discussion at trial. The trial judge made a passing reference to it, but did not make it a ground of judgment. Nonetheless, I agree with your Lordship in the chair that this court is not precluded from considering this issue on appeal. [30] Before considering it, I think it appropriate to deal with a contention advanced by Mr. Shead on behalf of the second appellant. He submitted that, quite independently of any unlawfulness of the interception by virtue of the 2000 Act, that interception had involved a breach of Article 8 of the Convention. That being so, the act of the Lord Advocate in leading at the trial evidence recovered in breach of that Article was, in terms of section 57(2) of the Scotland Act 1998, ultra vires. That evidence was central to the Crown's case against the second appellant. As the Lord Advocate was disempowered from leading that evidence, his leading it, and his reliance on it in moving for conviction, rendered the second appellant's trial unfair and resulted in a miscarriage of justice. On this argument no question of admissibility of the challenged evidence on any discretionary basis arose. There was a consequential breach of Article 6. Even if the submission based on section 57(2) was wrong, it was, so ran the argument, the obligation of the trial judge under the Human Rights Act 1998 to give effect to Convention rights. His failure to do so had resulted in a miscarriage of justice. [31] The immediate answer to these contentions is that similar arguments were presented to this court in McGibbon v. H.M. Advocate 2004 S.C.C.R. 193 and rejected by it. Reference is made in particular to paras. [16] and [19] - [22]. While Mr. Shead submitted that the decision in McGibbon was wrong, that decision is binding on this court as presently constituted and I see no sufficient reason for moving your Lordships to convene a larger court or for referring the issue to the Judicial Committee of the Privy Council. There is a specialty in the present case which, on any view, would make such a course inappropriate. Any breach of Article 8 by virtue of the recording of the intercepted telephone conversation did not, in my view, involve any violation of the second appellant's Convention rights. He was not a party to that conversation nor even mentioned in the course of it. His counsel at the trial did not, correctly in my view, raise any issue of a possible infringement of his client's Convention rights. Nor did Mr. Duguid on behalf of the first appellant raise, either at trial or on appeal, any such issue in relation to his client. In these circumstances the contentions advanced by Mr. Shead on the basis of section 57(2) of the Scotland Act 1998 and of section 6 of the Human Rights Act 1998, except in so far as the latter may bear upon the court's obligation to ensure a fair trial, fall to be rejected. The outcome of these appeals turns, in my view, on the application in the circumstances of this case of the principles set out in Lawrie v. Muir. [32] It is appropriate to notice the background against which the 2000 Act (which is a United Kingdom statute but restricted in some respects in its application to Scotland) and the Regulation of Investigatory Powers (Scotland) Act 2000 were enacted. Article 8 of the Convention provides:"1. Everyone has the right to respect for his private and family life, his home and his correspondence.
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 ... for the prevention of disorder or crime ... or for the protection of the rights and freedoms of others".
Henderson & Anor v. Her Majesty's Advocate [2005] ScotHC HCJAC_47 (14 April 2005)
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APPEAL COURT, HIGH COURT OF JUSTICIARY |
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Lord Marnoch Lord Hamilton Lord Weir
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[2005HCJAC47] Appeal Nos: XC247/02 XC248/02 OPINION OF LORD WEIR in APPEALS by ALEXANDER HENDERSON and DOUGLAS MARNOCH Appellants; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Appellant: Duguid, Livingstone; George Mathers, Aberdeen (for Henderson):
Shead, Latif; Gilfedder & McInnes (for Marnoch)
Respondent: Bain, A.D.; Crown Agent
14 April 2005
[40] I agree that these appeals should be refused and have nothing to add.