APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Reed Lord Carloway Lord Menzies	[2009] HCJAC 86 Appeal No: XC302/09 XC303/09 OPINION OF LORD REED in APPEALS Under section 74 of the Criminal Procedure (Scotland) Act 1995 by CALUM JONES First Appellant; and JOHN DOYLE Second Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

First Appellant: Dean of Faculty (Keen QC), Dunn; Capital Defence

Second Appellant: Bell QC, O'Rourke; Paterson Bell

Respondent: Mackay AD; Crown Agent

30 October 2009

Introduction

[1] I gratefully adopt Lord Carloway's account of the background to these appeals. As is apparent from that account, the appeals raise important questions as to the framework within which Scots law addresses conduct of the kind described as entrapment: in particular, questions concerning the rationale for giving legal recognition to a claim of entrapment, the requirements which must be met if such a claim is to be accepted, and the procedural manner in which such a claim should be considered. These questions are inter-dependent. They require a consideration of what was decided in the relevant Scottish cases, and of whether the observations of the court in Brown v HM Advocate 2002 SCCR 684 regarding procedural matters were inconsistent with the earlier decisions of this court.

The Scottish cases prior to Brown v HM Advocate

[2] As Lord MacDermott CJ observed in R v Murphy [1965] NI 138 at page 147, detection by deception is as old as the constable in plain clothes. The earliest consideration of the practice by a Scottish court appears to have been in the civil case of Southern Bowling Club Limited v Ross (1902) 4 F 405. In that case, a club sought unsuccessfully to prevent a chief constable from sending officers in plain clothes on to their premises in order to detect, by posing as ordinary members of the public and making test purchases, whether breaches of the licensing laws were being committed. Two matters were emphasised by the court which have also been emphasised in the later case law: first, that the police had grounds to suspect that such offences were being committed, and secondly, that there was no other practical means of detecting such offences. The court frankly accepted that such methods of detection depended upon the deception of the suspect.

[3] The use of such methods does not appear to have been considered by this court until the case of Marsh v Johnston 1959 SLT (Notes) 28, another case concerned with test purchases by plain clothes police officers. The question raised in the appeal was whether the evidence of the officers should have been excluded, since they had themselves committed offences when they made the test purchases. Reliance was placed on the cases of Lawrie v Muir 1950 JC 19 and Fairley v Fishmongers of London 1951 JC 14, which had established that the court could exclude evidence which had been obtained by means of an illegal or irregular search of premises. The court refused the appeal. Lord Justice-General Clyde acknowledged that the officers had committed an offence, but stated (at page 28):

"...this was a sheer technicality and was not done to procure the commission of an offence but to detect and confirm that offences were being committed. In the circumstances it does not appear to me that there was anything in the conduct of the police which was in the least improper, still less does it make their evidence incompetent."

His Lordship noted that the officers had grounds for suspicion, and that it was difficult to establish the commission of such offences by other means. He continued (ibid):

"It would have been a very different matter if any unfairness to the complainer had been established. If, for instance, the police had pressed him to commit the offence or had tricked him into committing an offence which he would not otherwise have committed the position would have been quite different. But there is no question of anything of that kind here. The police officers were instructed not to buy any drink outside hours until they had seen two other customers supplied with drink outside the permitted time. When they intervened the Act of Parliament had already been breached by the complainer, and they were engaged in detecting the commission of an offence against the Act. There can, in my view, be no justification in treating such evidence as being in any way unfair. In cases of this type in Scotland the test for the competency of such police evidence is 'was it fair to the accused', and in determining that matter the Court has got to try to reconcile two important interests which are liable to come into conflict, (1) the interests of the citizen to be protected from illegal or irregular invasion of his liberties by the authorities, and (2) the interest of the State to secure that evidence bearing upon the commission of a crime and necessary to enable justice to be done shall not be withheld from a Court of Law on any mere formal or technical ground".

His Lordship distinguished the facts of the English case of Brannan v Peek [1948] 1 KB 68:

"The conduct of the policeman in that case was grossly unfair and amounted to a trick upon the accused, in order to induce him to commit an offence...But the situation in the present case is quite different and whatever may be the practice in England, where criminal law is administered under a different system from ours, it is settled in practice here that fairness to the accused is the true criterion for the admissibility of police evidence."

[4] In one sense, of course, the appellant in Marsh v Johnston might have said that he was tricked into committing an offence which he would not otherwise have committed: he would not have sold the drinks to the officers if he had not been deceived into thinking that they were ordinary members of the public who wanted to buy drinks. The point being made by the Lord Justice-General, however, was that the circumstances of the offence demonstrated that the appellant was ready to commit such an offence if any member of the public asked for a drink after closing time. The reference to a crime which would not otherwise have been committed must be understood as referring to a form of criminal conduct rather than to a particular offence. The officers had reasonable grounds for suspecting that such offences were being committed, and they did not do anything which would not have been done by an ordinary member of the public wishing to buy a drink after closing time. They provided the appellant with an opportunity to commit an offence which he was plainly willing to commit without their persuasion or encouragement, rather than causing him to behave in a manner in which he would not otherwise have behaved.

[5] The subsequent Scottish cases, prior to Brown, add relatively little to Marsh v Johnston. In Cook v Skinner; MacDonald v Skinner 1977 JC 9, another case concerned with test purchases made by plain clothes officers, the question raised on appeal again concerned the admissibility of the officers' evidence. Lord Justice-General Emslie, delivering the opinion of the court, adopted the test of fairness as it had been formulated in Marsh­ v Johnston, and continued:

"The question of whether the evidence of the police was fairly or unfairly obtained is a question of fact and opinion. It is quite impossible to categorise conduct in the obtaining of evidence which will be regarded as fair and conduct in the obtaining of evidence which will be regarded as unfair. It is clear, however, from the decided cases to which we were referred, that where the Court has held that evidence has been obtained unfairly there has been established, on the part of the police officers concerned, conduct which clearly amounted to a trick upon the accused, and, in particular. a trick which involved positive deception and pressure, encouragement or inducement to commit an offence which, but for that pressure, encouragement or inducement, would never have been committed at all."

The court refused the appeals, noting that the officers had grounds for suspicion and that no improper pressure or inducement had been used to induce the appellants to commit offences which they would not otherwise have committed: the officers had merely provided the appellants with the opportunity to commit offences of which they were suspected.

[6] The remaining decision of this court which we require to consider, prior to Brown v HM Advocate, is Weir v Jessop 1991 JC 146. In that case a plain clothes police officer, acting on suspicion that premises were being used for drugs offences, went there posing as someone wanting to buy drugs, and pretended that he had been sent by the appellant's brother. The appellant then supplied him with cannabis. The question raised in the appeal was whether the officer's evidence, and that of another officer who overheard the transaction, should have been excluded.

[7] Lord Justice-Clerk Ross applied (at page 154) the test of fairness as it had been described in Cook v Skinner. The only reasonable inference from the evidence was that the appellant was prepared to supply controlled drugs to callers, provided the callers could offer some colourable basis for having come to his door for that purpose. In these circumstances, although the officer had deceived the appellant as to his identity, and in representing that he had been sent by the appellant's brother and would like to buy cannabis, there had been no unfair trick played upon the appellant, and in particular no pressure, encouragement or inducement to commit an offence which the appellant would never otherwise have been committing at all. Lord Morison took as his starting point (at page 154) the existence of suspicion that a person was dealing in drugs. In such circumstances, there was nothing inherently unfair in a police officer's asking the person for drugs in order to confirm the suspicion. Deception, so as to lead the suspect to believe that he could commit the offence without risk of prosecution, was necessarily involved. The deception could not however be regarded as having induced the commission of the crime if the supply of drugs would in any event have taken place at the request of a genuine customer. Lord Caplan emphasised (at page 158) that the acceptability of such methods of detection depended on the need for the police to resort to them, and that deception should not in any event be used indiscriminately.

[8] In the cases up to and including Weir v Jessop, therefore, the only question raised concerned the admissibility of evidence. The criterion of admissibility was said to be fairness to the accused, the determination of which involved balancing the public interest in protecting citizens from unlawful or irregular behaviour by the authorities and the public interest in the conviction of persons guilty of crime. The detection of offences by means of undercover officers posing as ordinary members of the public, or as drug addicts, was regarded as acceptable where such methods were necessary in order to detect the commission of offences and where there were grounds for suspecting that offences were being committed. It was of critical importance that the officers had not by improper means (such as pressure or persuasion) induced the commission of an offence which would not otherwise have been committed.

[9] A number of further observations can be made about these decisions. First, an approach which treats entrapment as a matter bearing upon the admissibility of evidence is premised upon the view that the evidence in question may in principle be relevant to proof of the fact that a crime has been committed. It is therefore inconsistent with the idea that entrapment might constitute a substantive defence to a criminal charge. That approach is consistent with the ordinary principles of Scots law. A person who voluntarily, and with the necessary intent, commits all the objective elements of a criminal offence is guilty of that offence, regardless of whether he was induced to commit the offence by another person. The fact that the accused committed the offence as a result of pressure or inducements may be relevant in mitigation of sentence, but it is not exculpatory. That is so even if the inducement involved criminal conduct on the part of the other person. The result is not that the person induced is not guilty of an offence, but that the other person is also guilty of an offence. This principle, in relation to offences induced by the conduct of private citizens, is applied daily in the courts. In relation to drugs offences, for example, it is commonly said in mitigation that the accused acted as he did because of pressure from persons to whom he owed money. That is relevant to sentencing, but it is not a defence. Nor would it be a defence if the person applying the pressure was a police informer or an undercover police officer. Equally it is no defence to a criminal charge that the crime was committed on the orders of police officers or a government official. A fortiori, it cannot be a defence that the accused was persuaded, encouraged or otherwise induced by a police officer or government official to commit the crime.

[10] Secondly, since the fact that an accused person was persuaded, encouraged or otherwise induced by a police officer or government official to commit a crime which he would not otherwise have committed is not a defence to a criminal charge, that fact cannot in itself render it unfair to the accused for evidence of the commission of the crime to be admitted. One has only to think of Nuremberg, or of Watergate, to appreciate that any other approach would be intolerable. The specific element in entrapment which renders it unacceptable that evidence of the commission of the crime should be admitted is reflected in the word itself: that the police trapped the accused, by inducing him to commit an offence which he would not otherwise have committed for the purpose of prosecuting him for that crime. Such conduct is "offensive to ordinary notions of fairness", as Lord Bingham of Cornhill CJ stated in Nottingham City Council v Amin [2000] 1 WLR 1071 at page 1076. The unfairness, in other words, lies not merely in the police inducing a person to commit an offence, but in their doing so in order that he should be prosecuted for it. It has to be acknowledged that that point does not emerge clearly from the cases so far discussed, and has become clear only through more detailed analysis of the concept of entrapment in subsequent cases. As I have explained, however, it is consistent with the fact that the person who is induced by an agent of the state to commit a criminal offence which he would not otherwise have committed is guilty of that offence and is, in the absence of entrapment, properly liable to prosecution and punishment.

[11] Thirdly, it follows that when the court said in Marsh v Johnston that the test for the admissibility of evidence said to have been obtained by entrapment was one of fairness to the accused, the expression "fairness" was being used in a specific sense. The test is not concerned with fairness in a forensic or procedural sense: the accused who was entrapped into committing a crime is guilty of that crime and can receive a trial which is perfectly fair in procedural terms. Although the distinction may not always have been made clear, there is a distinction between the exclusion of evidence of the commission of a crime on the ground that proof of its commission would be unfair in the sense that it would be offensive to ordinary notions of justice, and the exclusion of an item of evidence (such as a confession obtained by means of threats) on the ground that to admit it would prejudice the accused's right to a fair trial. Nor does "fairness" mean adherence to the rules of some sort of game where cheating is not allowed: deception and trickery are part and parcel of undercover police work, as the court has accepted. As was said in an Australian case concerned with the obtaining of evidence by unlawful or improper means:

"There is no initial presumption that the State by its law enforcement agencies, will in the use of such measures of crime detection observe some given code of good sportsmanship or of chivalry. It is not fair play that is called in question in such cases but rather society's right to insist that those who enforce the law themselves respect it, so that a citizen's precious right to immunity from arbitrary and unlawful intrusion into the daily affairs of private life may remain unimpaired."

(Bunning v Cross (1978) 141 CLR 54 at page 75 per Stephen and Aickinn JJ).

[12] Equally, although entrapment may diminish the culpability of the accused, the test of fairness is not essentially concerned with culpability. That is reflected in the fact that the person who is induced to commit an offence by a private citizen is no more culpable than the person induced by a police officer posing as a private citizen; but it is only in the latter situation that any question of entrapment can arise. Similarly, the critical question whether the police officer instigated the accused to commit the offence for the purpose of prosecuting him, or for some other purpose, has no bearing on the accused's culpability. The test is concerned with "fairness" in the sense that it would offend against the court's (and the community's) sense of justice to admit evidence of a crime which the accused had been improperly induced to commit in order that he could be prosecuted for it.

[13] Fourthly, since the test is concerned with improper conduct relating to the commission of the offence, rather than improper conduct after the offence has been committed (as in Lawrie v Muir), it follows that it has wider implications. If evidence is ruled inadmissible because it was recovered in a search conducted without a warrant, it remains open to the Crown to prove the commission of the offence by adducing other evidence, if it is in a position to do so. If, on the other hand, evidence is ruled inadmissible because it was obtained by inducing the accused to commit an offence (or an element of the offence) which he would not otherwise have committed, in order to prosecute him, that ruling should apply to all evidence which was so obtained, whether the source of the evidence is the police officer responsible for the inducement or some other source. If, for example, the charge against the accused is concerned with transactions (such as the supply of drugs) into which he was unfairly induced to enter by improper behaviour on the part of the police, then the objection to the admissibility of the evidence of the police officers involved ought in principle to apply equally to any other evidence by which those transactions might be proved. In short, and as the High Court of Australia held in Ridgeway v The Queen (1995) 184 CLR 19, an exclusionary rule of evidence, in this context, cannot rationally stop short of preventing a conviction in respect of the offence in question (or an element of the offence, depending on the circumstances: clearly, if a charge concerned a number of transactions, only some of which were unfairly induced, then the objection would apply only to the latter transactions, leaving it open to the Crown to prove the commission of the offence in relation to the remaining transactions).

[14] Fifthly, the foregoing questions raise a question as to how a claim of entrapment ought properly to be conceptualised: a question with implications for the procedural manner in which such a claim should be addressed. The law of evidence is concerned with the means by which a fact in issue, such as whether the accused committed the crime with which he is charged, may be proved: some means are legally proper, and others are not. Where entrapment is established, it follows rationally, as I have explained, that the fact in issue cannot be proved by any means whatsoever. The problem does not concern the propriety of the means by which the fact in issue may be proved, but the propriety of the whole exercise of seeking to prove the fact in issue: in other words, the propriety of the prosecution. This point was noted in R v Sang [1980] AC 402, where Lord Fraser of Tullybelton observed (at page 402), in relation to the argument that entrapment could form the basis of an objection to the admissibility of evidence, that "the present case does not truly raise a question of evidence at all". In R v Looseley [2001] 1 WLR 2060 the conceptual problem was explained by Lord Nicholls of Birkenhead:

"For present purposes it is sufficient to note that the reasoning of their Lordships [ in R v Sang] was directed at the question whether entrapment constitutes a substantive defence or is a cause for excluding evidence at the trial. But, as already noted, entrapment raises another and anterior issue, an issue of an altogether different dimension, quite distinct from the question of the defendant's guilt or the actual conduct of the trial. ... Entrapment goes to the propriety of there being a prosecution at all for the relevant offence, having regard to the state's involvement in the circumstance in which it was committed" (paragraphs 10 and 17).

That understanding of the nature of entrapment was reflected in their Lordships' conclusion as to the procedure by which entrapment should be addressed. Lord Hoffmann explained (at paragraph 42):

"But the entrapped defendant is not ordinarily complaining that the admission of certain evidence would prejudice the fairness of his trial. He is saying that, whatever the evidence, he should not be tried at all. The appropriate remedy, if any, is therefore not the exclusion of evidence but a stay of the proceedings."

In the Scottish cases so far discussed, however, no argument was addressed to the court on the basis that entrapment might form the basis of a plea in bar of trial, and the court did not rule on that question.

Developments between Weir v Jessop and Brown v HM Advocate
Developments in other jurisdictions
[15] Between the decisions of this court in Weir v Jessop and Brown v HM Advocate, entrapment was the subject of detailed consideration in most of the major English-speaking jurisdictions, reflecting the growth of criminal activities which called for undercover methods of detection. The growth of organised crime, in particular, called for the use of police techniques, such as the infiltration of groups and participation in their activities, which required a more active involvement in the commission of crime, and more sophisticated types of deception, than the test purchases considered in the Scottish cases so far discussed. As these methods of detection developed, the legal questions to which they gave rise came before the highest courts; and, through their analysis of those questions, understanding of the concept of entrapment was developed and refined.

[16] One particularly valuable and influential analysis was contained in the judgment of the Supreme Court of Canada, delivered by Lamer J, in R v Mack [1988] 2 SCR 903. His Honour explained the rationale of recognising a doctrine of entrapment (at pages 940-942) as being the need to keep the administration of justice free from disrepute, which might arise from judicial condonation of unacceptable conduct by investigatory and prosecutional agencies. Competing societal interests were engaged. On the one hand, "there are inherent limits on the power of the state to manipulate people and events for the purpose of attaining the specific objective of obtaining convictions". On the other hand, "the competing social interest is in the repression of criminal activity". A balance had to be struck, based on a model of fairness and justice.

[17] Consistently with that rationale, Lamer J defined entrapment (at pages 964-965) in terms which focused upon the conduct of the authorities:

"As mentioned and explained earlier there is entrapment when,

(a) the authorities provide a person with an opportunity to commit an offence without acting on a reasonable suspicion that this person is already engaged in criminal activity or pursuant to a bona fide inquiry;

(b) although having such a reasonable suspicion or acting in the course of a bona fide inquiry, they go beyond providing an opportunity and induce the commission of an offence."

Lamer J expanded upon that test as follows (at pages 965-966):

"The absence of a reasonable suspicion or a bona fide inquiry is significant in assessing the police conduct because of the risk that the police will attract people who would not otherwise have any involvement in a crime and because it is not a proper use of the police power to simply go out and test the virtue of people on a random basis. The presence of reasonable suspicion or the mere existence of a bona fide inquiry will, however, never justify entrapment techniques: the police may not go beyond providing an opportunity regardless of their perception of the accused's character and regardless of the existence of an honest inquiry. To determine whether the police have employed means which go further than providing an opportunity, it is useful to consider any or all of the following factors:

- the type of crime being investigated and the availability of other techniques for the police detection of its commission;

- whether an average person, with both strengths and weaknesses, in the position of the accused would be induced into the commission of a crime;

- the persistence and number of attempts made by the police before the accused agreed to committing the offence;

- the type of inducement used by the police including: deceit, fraud, trickery or reward;

- the timing of the police conduct, in particular whether the police have instigated the offence or became involved in ongoing criminal activity;

- whether the police conduct involves an exploitation of human characteristics such as the emotions of compassion, sympathy and friendship;

- whether the police appear to have exploited a particular vulnerability of a person such as a mental handicap or a substance addiction;

- the proportionality between the police involvement, as compared to the accused, including an assessment of the degree of harm caused or risked by the police, as compared to the accused, and the commission of any illegal acts by the police themselves;

- the existence of any threats, implied or express, made to the accused by the police or their agents;

- whether the police conduct is directed at undermining other constitutional values."

In relation to the first factor mentioned, namely the type of crime being investigated and the availability of other techniques, the court noted (at pages 916-917) that active law enforcement techniques might be necessary where crimes were consensual (as, for example, in the case of drugs offences or breaches of licensing laws), or where victims were reluctant to go to the police (as, for example, in the case of extortion), or more generally where crimes were committed in secret and it was difficult to obtain evidence of their commission after the fact. The second factor mentioned reflects the focus upon the acceptability of the conduct of the police, objectively assessed. It would appear to have the effect of restricting entrapment, generally at least, to cases where the accused was induced to commit the offence by persuasion or inducement which would be effective to persuade an average person in his position, rather than someone who was ready and willing to commit such an offence.

[18] The court considered that it followed, from its view of the conceptual basis of the doctrine of entrapment, that the appropriate procedural response to a finding of entrapment was a stay of proceedings:

"The court is, in effect, saying it cannot condone or be seen to lend a stamp of approval to behaviour which transcends what our society perceives to be acceptable on the part of the state. The stay of the prosecution of the accused is the manifestation of the court's disapproval of the state's conduct. The issuance of the stay obviously benefits the accused but the Court is primarily concerned with a larger issue: the maintenance of public confidence in the legal and judicial process" (page 942).

The court reserved its opinion (at page 971) as to whether entrapment could also form the basis of an application for the exclusion of evidence, but commented that the same considerations would also be relevant to such an application. The burden lay on the accused to prove entrapment, on a balance of probabilities. The court emphasised that a stay should be entered only in the "clearest of cases" (pages 975-977).

[19] The approach adopted by the Supreme Court of Canada might be contrasted with that adopted in Australia (and with the broadly similar approach adopted in New Zealand: Police v Lavalle [1979] 1 NZLR 45). In Ridgeway v The Queen the majority of the High Court of Australia held that entrapment should be addressed by the court's exercise of a discretion to exclude all evidence of an offence (or an element of an offence) procured by unlawful or improper conduct on the part of law enforcement officers. The majority reached that conclusion by developing the discretion to exclude evidence on public policy grounds which had been established in earlier cases concerned with evidence obtained by unlawful searches or other improper means. The rationale of the power to exclude all evidence in cases of entrapment was explained in similar terms to those used by the Supreme Court of Canada: its basis was the right and duty of the courts to protect the integrity of their own processes and to prevent the administration of justice being brought into disrepute. This rationale does not appear to be different in substance from the test of fairness adopted in the older Scottish cases, if the latter test is understood as requiring conformity to the community's sense of justice: the admission of evidence of a crime which the accused has been induced to commit so that he can be prosecuted for it damages the integrity of the court's process precisely because it offends against any ordinary sense of justice.

[20] In relation to procedure, the majority of the court held that it was not appropriate to stay a prosecution, as an abuse of process, on the ground of entrapment. Brennan J stated (at page 46):

"An abuse of process occurs when the process of the court is put in motion for a purpose which, in the eye of the law, it is not intended to serve or when the process is incapable of serving the purpose it is intended to serve. The purpose of criminal proceedings, generally speaking, is to hear and determine finally whether the accused has engaged in conduct which amounts to an offence and, on that account, is deserving of punishment. When criminal process is used only for that purpose and is capable of serving that purpose, there is no abuse of process."

[21] In England, the law developed significantly in a series of decisions of the House of Lords. In R v Horseferry Road Magistrates' Court, Ex p Bennett [1994] 1 AC 42, where the defendant claimed that he had been forcibly abducted and brought to this country to face trial in disregard of extradition laws, the House held that the court had jurisdiction to stay proceedings when it became aware that there had been a serious abuse of power by the executive. The court could refuse to allow the police or prosecuting authorities to take advantage of such an abuse of power by regarding it as an abuse of the court's process (abuse of process being, in English law, the basis on which the court considers applications to stay proceedings on a variety of grounds, such as delay, adverse publicity and promises not to prosecute: applications which in Scots law would take the form of a plea in bar of trial, usually on the ground of oppression). In R v Latif [1996] 1 WLR 104 the House confirmed that the same principle was applicable in entrapment cases. In R v Looseley their Lordships reviewed the law relating to entrapment, and considered the significance in this context of the Convention rights defined in the Human Rights Act 1998.

[22] The general nature of entrapment was succinctly described by Lord Hoffmann, in a speech with which Lord Nicholls of Birkenhead, Lord Mackay of Clashfern and Lord Scott of Foscote expressed agreement:

"Entrapment occurs when an agent of the state - usually a law enforcement officer or a controlled informer - causes someone to commit an offence in order that he should be prosecuted" (paragraph 36).

Lord Nicholls, in a speech with which Lord Hoffmann, Lord Mackay and Lord Scott expressed agreement, considered (at paragraphs 23 and 24) how to identify the limits to the types of police conduct which were acceptable:

"On this a useful guide is to consider whether the police did no more than present the defendant with an unexceptional opportunity to commit a crime. I emphasise the word 'exceptional'. The yardstick for the purpose of this test is, in general, whether the police conduct preceding the commission of the offence was no more than might have been expected from others in the circumstances. Police conduct of this nature is not to be regarded as inciting or instigating crime, or luring a person into committing a crime. The police did no more than others could be expected to do. The police did not create crime artificially. McHugh J had this approach in mind in Ridgeway v The Queen 184 CLR 19, 92, when he said:

'The state can justify the use of entrapment techniques to induce the commission of an offence only when the inducement is consistent with the ordinary temptations and stratagems that are likely to be encountered in the course of criminal activity. That may mean that some degree of deception, importunity and even threats on the part of the authorities may be acceptable. But once the state goes beyond the ordinary, it is likely to increase the incidence of crime by artificial means.'

This is by no means the only factor to be taken into account when assessing the propriety of police conduct. The investigatory technique of providing an opportunity to commit a crime touches upon other sensitive areas. Of its nature this technique is intrusive, to a greater or lesser degree, depending on the facts. It should not be applied in a random fashion, and used for wholesale 'virtue-testing', without good reason. The greater the degree of intrusiveness, the closer will the court scrutinise the reason for using it. On this, proportionality has a role to play."

In relation to "virtue-testing", Lord Hoffmann similarly emphasised that it was not normally considered a legitimate use of police power to provide people not suspected of being engaged in any criminal activity with the opportunity to commit crimes, although it could be in the course of a bona fide investigation into suspected criminality (paragraphs 56-59). This is consistent with the approach adopted in R v Mack.

[23] A number of factors were mentioned by Lord Nicholls and Lord Hoffmann which were of particular relevance in considering the acceptability of police conduct. One was the nature of the offence:

"Consensual offences such as dealing in unlawful substances or offences with no immediate victim like bribery or offences which victims are reluctant to report are the most obvious candidates for such methods. So is the infiltration of conspiracies."

(per Lord Hoffmann at paragraph 66). Another relevant factor was the need for authorisation of undercover activities and supervision of the undercover agents. Another was the nature and extent of police participation in the crime:

"The greater the inducement held out by the police, and the more forceful or persistent the police overtures, the more readily may a court conclude that the police overstepped the boundary: their conduct might well have brought about commission of a crime by a person who would normally avoid crime of that kind. In assessing the weight to be attached to the police inducement, regard is to be had to the defendant's circumstances, including his vulnerability. This is not because the standards of acceptable behaviour are variable. Rather, this is a recognition that what may be significant inducement to one person may not be so to another. For the police to behave as would an ordinary customer of a trade, whether lawful or unlawful, being carried on by the defendant will not normally be regarded as objectionable."

(per Lord Nicholls at paragraph 28). In relation to the last point, Lord Hoffmann observed (at paragraph 69):

"And it is been said that undercover officers who infiltrate conspiracies to murder, rob or commit terrorist offences could hardly remain concealed unless they showed some enthusiasm for the enterprise. A good deal of active behaviour in the course of an authorised operation may therefore be acceptable without crossing the boundary between causing the offence to be committed and providing an opportunity for the defendant to commit it."

The ultimate question was expressed by Lord Nicholls (at paragraph 25) in similar terms to those used by the Canadian Supreme Court:

"Ultimately the overall consideration is always whether the conduct of the police or other law enforcement agency was so seriously improper as to bring the administration of justice into disrepute. Lord Steyn's formulation of a prosecution which would affront the public conscience is substantially to the same effect: see R v Latif [1996] 1 WLR 104, 112. So is Lord Bingham of Cornhill CJ's reference to conviction and punishment which would be deeply offensive to ordinary notions of fairness: see Nottingham City Council v Amin [2000] 1 WLR 1071, 1076. In applying these formulations the court has regard to all the circumstances of the case."

The appropriate remedy, where entrapment had occurred, was a stay of proceedings on the ground of abuse of process. Lord Nicholls explained the basis of the stay (at paragraph 1) as being to

"ensure that executive agents of the state do not misuse the coercive, law enforcement functions of our courts and thereby oppress citizens of the state".

Lord Hoffmann observed (at paragraph 40):

"The stay is sometimes said to be on the ground that the proceedings are an abuse of process, but Lord Griffiths [in R v Horseferry Road Magistrates' Court, Ex p Bennett] described the jurisdiction more broadly and, I respectfully think, more accurately, as a jurisdiction to prevent abuse of executive power."

Although the issue of entrapment ought logically to be decided before trial, it was acknowledged that "sometimes proceedings are not conducted entirely logically" (per Lord Hoffmann at paragraph 44), and that the issue could also be raised belatedly in the form of an application to exclude evidence.

[24] In relation to Convention rights, their Lordships noted that the right to a fair trial under Article 6 of the European Convention on Human Rights was not confined to a fair determination of the question of guilt, but encompassed "a right not to be tried at all in circumstances in which this would amount to an abuse of state power" (per Lord Hoffmann at paragraph 45). This appeared most clearly from the decision in Teixeira de Castro v Portugal (1998) 28 EHRR 101. Lord Hoffmann's description of the right as one "not to be tried at all" is based on the language used by the Grand Chamber in paragraph 39 of the judgment:

"In the light of all these considerations, the Court concludes that the two police officers' actions went beyond those of undercover agents because they instigated the offence and there is nothing to suggest that without their intervention it would have been committed. That intervention and its use in the impugned criminal proceedings meant that, right from the outset, the applicant was definitively deprived of a fair trial."

The House held that the principles of English law on which a stay of proceedings could be granted on grounds of entrapment were consistent with Article 6. In particular, they were consistent with the decision in de Castro's case, where the police operation had been unauthorised, where those who might have authorised such an operation had had no grounds for suspicion of the applicant, and where there had consequently been an abuse of police power which denied the applicant a fair trial.

[25] Finally, in relation to Looseley, it is to be noted that, although Lord Nicholls observed at one point that "entrapment assumes the defendant did the proscribed act, with the necessary intent" (paragraph 10), Lord Hoffmann implicitly accepted that there might be exceptional cases:

"The entrapment will usually have achieved its object in causing him [the accused] to do the prohibited act with the necessary guilty intent" (paragraph 37: emphasis added).

That is consistent with R v Mack (at page 943):

"... the conduct of the police or their agents in most cases will not have the effect of negating mens rea or, for that matter, actus reus. (There may be exceptional cases, however: see, for example, the decision of this Court in Lemieux v The Queen, [1967] S.C.R. 492.)"

Those observations are relevant to the present case, since the appellants accepted (for the purposes of their plea in bar of trial) that the actus reus of the offence had been committed, but maintained that they had lacked any mens rea, because they had acted in reliance upon the misrepresentations made by the undercover police officer, Craig: misrepresentations which, if true, would (it was argued) have had the consequence that no crime was committed. In the light of the observations made by Lord Hoffmann and Lamer J, the adoption of that position does not in my opinion prevent the court from considering a plea of entrapment. It is sufficient, in the circumstances of this case, that the appellants accept (for the purposes of their plea in bar of trial), that they voluntarily carried out the criminal conduct alleged against them.

Developments in Scots Law
[26] It is also appropriate to note certain developments in Scots law. First, in Bennett, Petitioner 1994 SCCR 902 this court considered the decision of the House of Lords in R v Horseferry Road Magistrates' Court, Ex p Bennett (where the defendant was the same person as was the petitioner in the Scottish proceedings). The court proceeded on a different view of the facts from that on which the House of Lords had based their decision, but observed that, if the facts had been as stated by their Lordships, the court would have wished the earlier decision in Sinclair v HM Advocate (1890) 17 R (J) 38 to be reviewed, as "there may well be room ... for regarding at least some of the dicta in Sinclair, if not the decision itself, as out of line with modern thinking on this subject not only in England but in other legal systems" (per Lord Justice-General Hope at page 920).

[27] A second relevant development was the enactment of the Human Rights Act 1998, section 6 of which imposed upon the court a duty not to act incompatibly with the Convention rights defined by that Act, and of the Scotland Act 1998, section 57(2) of which rendered it generally incompetent for the Lord Advocate to act incompatibly with those rights. The implications of that development for the common law concept of oppression, as the basis of a plea in bar of trial, were noted by Lord Justice-General Rodger in Montgomery v HM Advocate 2000 JC 111 at page 117:

"...under sec 57(2) of the 1998 Act the Lord Advocate has no power to act in a manner which is incompatible with Convention rights. Therefore, putting the matter generally, he and his representatives have no power to act in a manner which would prevent an accused person from having a fair trial. But it was always the case that a Lord Advocate and his representatives were not entitled to act oppressively, in a manner which would prevent an accused person from having a fair trial; if they did, the court could intervene and sustain a plea of oppression in bar of trial (McFadyen v Annan 1992 JC 53). While the authority now given to Convention rights in our law means that, when considering what constitutes a fair trial, the court must take account of Convention law and jurisprudence, the issue will still fall to be dealt with under our existing procedures. ... In other words, even when relying on an alleged breach of art 6 on the part of the Crown, an accused person may still seek to focus the issue by means of a plea of oppression."

The Lord Justice-General returned to this point at a later stage in the same proceedings (Montgomery v HM Advocate 2000 SCCR 1044 at page 1073):

"As I suggested when giving the opinion of the court at an earlier stage of these proceedings, the effect of even the partial incorporation of article 6 may be to reshape areas of our common law which were previously dealt with by the plea in bar of trial known as oppression. In this particular respect, any change is not dramatic. Despite its somewhat sinister name, in practice oppression has come to be a plea which turns on the fairness of any trial - the kind of issue which is focused in article 6."

The reference in that dictum to "partial incorporation" reflects the fact that, at that time, the Scotland Act had been brought into force, but section 6 of the Human Rights Act had not.

Brown v HM Advocate

[28] The case of Brown concerned a charge of conspiring to steal cars, with sub-heads setting out various steps taken in furtherance of the conspiracy. Some time after the conspiracy was alleged to have been formed, an undercover police officer infiltrated the conspiracy by pretending to be interested in taking delivery of stolen cars. Other police officers then assumed an active role in connection with the steps set out in the various sub-heads, posing as prospective buyers. There was no plea in bar of trial, and no issue was raised at the trial as to the admissibility of the officers' evidence. It was however argued on appeal that the trial judge ought to have withdrawn the case from the jury. The appeal was refused, on the basis that entrapment never arose in the case, even as an issue for consideration, since there was no evidence that the police had instigated the formation of the initial conspiracy (per Lord Marnoch at paragraphs 6 and 8, and Lord Philip at paragraph 9). Their Lordships added certain observations as to the law relating to entrapment.

[29] In relation to the conceptual nature of entrapment, Lord Marnoch considered it to be something which rendered the prosecution as a whole unfair to the accused and oppressive, and which should therefore form the basis of a plea in bar of trial, for the reasons explained in Looseley:

"... 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 pretrial publicity or, indeed, in any one of the many and varied situations covered by the plea in bar of trial based on oppression. ... 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. ... it was at one point suggested by [counsel] that entrapment did not fall readily into the category of 'oppression' insofar 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 HM 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" (paragraphs 11-12).

Lord Philip similarly considered that entrapment should form the basis of a plea in bar of trial, but did not regard "oppression" as the appropriate nomen iuris:

"... cases in which entrapment arises fall into a different category from those Scottish cases in which 'oppression' is founded upon in bar of trial. In entrapment cases, the abuse of state power is so fundamentally unacceptable that it is not necessary to investigate whether the accused has been prejudiced or has been the victim of any form of unfairness. Indeed one can envisage cases of entrapment where it might be difficult to conclude that an accused had been truly (as opposed to theoretically) prejudiced or the victim of unfairness" (paragraph 14).

Lord Clarke considered that the court's jurisdiction to prevent the prosecution from proceeding derived from its power to prevent the abuse of its process, as had been held in the English cases of Latif and Looseley. His Lordship stated (at paragraph 1):

"... 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 Looseley at para 18, observed ... 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."

As to the circumstances in which entrapment might be found to be established, it was common ground before the court that the guidance given in Looseley was equally applicable to Scotland; and Lord Marnoch expressed his agreement with that view.

The nature of entrapment and the appropriate procedure
[30] The discussion of the nature of entrapment in R v Mack and R v Looseley, in particular, is penetrating and illuminating. As that discussion makes clear, the essential vice of entrapment is the creation of crime by the state for the purpose of prosecuting it. Its consequence is to render the prosecution of the accused an abuse of state power and an affront to justice. Since the prosecution itself is inherently and irretrievably tainted, the appropriate response on the part of the court is to bring the proceedings to an end.

[31] To deal with the issue as one affecting the admissibility of evidence is inherently unsatisfactory. Some of the reasons why it was considered to be unsatisfactory in Mack and Looseley - for example, that the entrapped accused should not be made to stand trial, and that he is not entitled to a verdict of acquittal - may be capable of being overcome under current Scottish procedure. The fundamental reason, however, is not. It was explained earlier. The law of evidence is concerned with the means by which a fact in issue may be proved. A claim of entrapment does not put in issue the propriety of the means by which the fact in issue may be proved, but the propriety of the entire exercise of seeking to prove that fact: in other words, the propriety of the prosecution. It is for that reason that, as Lord Nicholls observed in Looseley, the issue raised by a claim of entrapment is logically anterior to any issue concerning the evidence which may be led at the trial, and is of a different character.

[32] It is of course possible, as a practical matter, to address the problem of entrapment by means of an exclusionary rule of evidence (a rule, that is to say, under which all evidence of the commission of a crime may be excluded); and if, under a given legal system, the problem cannot be addressed by means of a plea in bar of trial, then the only alternative is to adopt such a rule of evidence. That would appear to be the position in Australia, for example, where proceedings cannot be stayed by reason of entrapment, since entrapment is not considered to render the proceedings an abuse of process, as that concept is understood in Australian law. In Scots law, on the other hand, the grounds on which a plea in bar of trial may be sustained are sufficiently wide to encompass entrapment.

[33] The appropriate procedure by which a claim of entrapment should be made is therefore by means of a plea in bar of trial. Such a plea is not excluded by the decisions in Marsh v Johnston, Cook v Skinner and Weir v Jessop: the court gave no consideration in those cases to the possibility of such a plea. In the light of those cases, it must be regarded as competent for the issue to be raised by way of an objection to the admissibility of evidence, but, for the reasons I have explained, a plea in bar of trial is the more appropriate form of procedure. If the issue is raised as an objection to evidence, the same considerations will be relevant as if it had been raised as a plea in bar of trial.

[34] Whether the conceptual basis of the court's jurisdiction to sustain such a plea in bar of trial is oppression or abuse of process is, from one perspective, of little practical significance. In my opinion, however, there are reasons for considering that the more appropriate conceptual category in Scots law is oppression.

[35] I have no doubt that this court, like any other court, has an inherent jurisdiction to prevent its process from being abused. As Lord Nicholls stated in Looseley (at paragraph 1):

"... every court has an inherent power and duty to prevent abuse of its process. This is a fundamental principle of the rule of law."

This court is no exception. The fact that references to abuse of process are much rarer in our criminal law than in that of England and Wales reflects the fact that some of the familiar situations treated in English law as falling within the scope of abuse of process (such as inordinate delay in prosecution, prosecution in breach of an undertaking not to prosecute, and adverse publicity) are dealt with in our law as instances of oppression (or, in the case of a renunciation of the right to prosecute, as a distinct plea in bar, the basis of which is perhaps not entirely clear). The concept of abuse of process has been employed more narrowly, in what is arguably a stricter and more literal sense, to refer to the use of the court's procedures for an improper purpose, or the making of vexatious applications. Examples include Grugen v Jessop 1988 SCCR 182 and La Torre, Petitioner 2006 SCCR 673. The concept has not been relied on as the basis of a plea in bar of trial, the well-established concept of oppression being sufficiently wide and flexible to meet the requirements of justice.

[36] In that context, it is not in my opinion appropriate to find that there has been an abuse of process whenever a claim of entrapment succeeds, if the alternative description of the proceedings as "oppressive" is possible. When the Lord Advocate initiates proceedings, leaving it to the court to determine on the evidence before it whether or not entrapment has taken place, she is not using the process of the court for an improper purpose: on the contrary, she is using the process of the court for the purpose which it is intended to serve. The fact that proceedings may be held to be oppressive does not, in our usage, entail that they are an abuse of process. The observations of Brennan J in Ridgeway v The Queen about the nature of abuse of process appear to me to be apt in this context, as also is Lord Hoffmann's remark in Looseley that is more accurate to speak of an abuse of executive power than of an abuse of process.

[37] In agreement with the view expressed by Lord Marnoch in Brown, I consider that the concept of oppression is sufficiently wide to encompass entrapment. It is plainly oppressive as a matter of ordinary language, as Lord Nicholls recognised in Looseley (at paragraph 1). The legal meaning of "oppression" was explained by the court in Stuurman v HM Advocate 1980 JC 111 at page 122:

"As the authorities show, the High Court of Justiciary has power to intervene to prevent the Lord Advocate from proceeding upon a particular indictment but this power will be exercised only in special circumstances which are likely to be rare. The special circumstances must indeed be such as to satisfy the Court that, having regard to the principles of substantial justice and of fair trial, to require an accused to face trial would be oppressive. Each case will depend on its own merits, and where the alleged oppression is said to arise from events alleged to be prejudicial to the prospects of fair trial the question for the Court is whether the risk of prejudice is so grave that no direction of the trial Judge, however careful, could reasonably be expected to remove it."

So described, oppression is not confined to situations where the accused has been prejudiced, or has been the victim of unfairness, in a forensic or procedural sense; nor is it confined to matters affecting the forensic fairness of admitting evidence. As the court explained in Stuurman, the question is whether it would be oppressive to require the accused to face trial "having regard to the principles of substantial justice and of fair trial". Whether the proceedings will offend against those principles must be judged by reference to accepted standards of justice. A trial based on entrapment would not conform to those standards. In addition, it is necessary to bear in mind the observations of Lord Justice-General Rodger in Montgomery v HM Advocate, previously cited. Even if there were otherwise any doubt whether the concept of oppression was sufficiently wide to include entrapment, those doubts would be resolved by the need for it to accommodate a plea in bar of trial based on the violation of the Convention right under Article 6, as explained in the case of de Castro.

Determining whether entrapment has occurred
[38] It was common ground in these appeals that the guidance given in Looseley, as to how the court should determine whether entrapment has occurred, is equally valid in relation to Scots law. I share that view. The guidance is consistent with that contained in the older Scottish cases, but is more detailed and considers techniques of detection going beyond the practice of making test purchases, with which those cases were concerned. I would observe that the analysis in R v Mack also contains much that is relevant and useful in the context of our law.

[39] The guidance given in Looseley in addition meets the requirements of Convention rights as explained in de Castro's case. In that regard, I refer to the discussion of Convention rights in Looseley. Since Scots law adopts the same approach as English law to the nature of entrapment, and provides an equally effective procedural remedy, it too is in conformity with Convention rights in this regard.

The present appeals
[40] The facts found by the judge at the preliminary hearing, and the conclusions which he reached as to the application of the law, are fully set out in a detailed and carefully reasoned opinion. It is apparent, in the first place, that the conspiracy (as I shall refer to it, the general assumption for present purposes being that the crime charged was committed) had been under way for several weeks before the police first became involved. There is therefore no question of the police having instigated the conspiracy. Recognising that difficulty, the Dean of Faculty, on behalf of the appellant Jones, restricted his submission to a sub-head of the charge of conspiracy, which is concerned with the accused's possession of the stolen painting during the day or two before they were arrested and alleges that that possession constituted reset.

[41] The judge found that the police had reasonable grounds for suspicion that the accused were involved in criminal activities relating to the stolen painting. That was a finding he was entitled to make, given (amongst other relevant circumstances) the terms of the letter sent by the accused Ronald to Mr Dalrymple, the loss adjuster acting on behalf of the owner of the painting (the Duke of Buccleuch), and the stipulation that the police were not to be contacted. He further found that, in the circumstances of the case, the deployment of undercover officers was reasonable and proportionate. That finding was clearly warranted, having regard to the nature of the criminal activity in question and the value of the painting, amongst other circumstances. The judge further found that the undercover operation was properly authorised, and that the undercover officers acted under continuing direction and supervision. As the judge found, the undercover officers then played the roles that they had been given: Mr Restor, as an art expert; and Mr Craig, as a loss adjuster acting on behalf of the Duke. Craig, in particular, acted as a genuine loss adjuster acting on behalf of the Duke might have been expected to do, in representing that the Duke was prepared to pay for the return of the painting in accordance with the scheme proposed by the accused. The judge considered with care the question whether Craig had gone beyond providing the accused with the opportunity to continue with the criminal activity already underway, and had instigated them to undertake criminal activities which would not otherwise have seen the light of day. He decided that Craig had not done so.

[42] The Dean of Faculty criticised the judge's decision, so far as Jones's position was concerned, on the basis of two matters in particular. First, it was said that, if Craig had in reality been acting with the authority of the Duke, and the Duke had in reality agreed to the terms of the scheme (under which the accused were described as Craig's agents), it would follow that no crime of reset had been committed. Jones had relied upon Craig's representations in acting in the manner for which he was now being prosecuted. In my opinion this submission is not germane to the question of entrapment. If Jones committed the actus reus of reset because of a mistaken belief (essentially, as I understand the argument, a belief that the painting was no longer stolen, since it was in the possession of the owner's agents), then he may have a substantive defence in relation to that matter: in short, that he lacked the requisite mens rea. I need express no view on that matter, beyond noting that questions might arise as to whether the parties to a conspiracy to extort can have a reasonable or honest belief in the genuineness of any consent given by their victim to the terms of their demands. Be that as it may, the issue raised by a plea in bar of trial based on entrapment has a different focus from a defence based on mistake: it is essentially concerned with whether the police have lured the accused into committing an offence in order that he can be prosecuted for it. In representing that he was acting on behalf of the Duke and that the Duke had agreed to the scheme, Craig acted as a loss adjuster in this situation might be expected to act. He did not do so in order to lure Jones into committing an offence, so that he could then be prosecuted for it.

[43] Secondly, the Dean of Faculty submitted that the sums of money which Craig agreed to pay, amounting altogether to about £4.25 million, were so large as to amount to an inducement to commit the crime charged. This submission is without merit. The accused Ronald (a solicitor, who was advising the accused Graham and Doyle) initially indicated that he wanted £700,000 for the people in possession of the painting, plus a reward to be divided amongst five other people, plus a sum to cover his legal fees and expenses. When Craig's initial suggestion of £1.5 million was rejected, he then put forward a figure of £2 million, which was accepted. He put that figure forward because it was similar to a figure reached in previous discussions involving the genuine loss adjusters and a third party named Brown, which Ronald might have known about. Ronald subsequently sought a further £2.25 million for himself, nominally in respect of legal fees and expenses, to which Craig agreed. A similar payment had also been offered in the past to Brown. The total of £4.25 million was broadly in line with the customary limit on rewards, of 10 per cent of the value of the property, and was also in line with the discussions involving Brown. In agreeing to pay these sums, Craig acted as a loss adjuster might have been expected to act in such circumstances. He did not do so in order to lure the accused into committing a crime which would not otherwise have been committed.

[44] The submissions on behalf of the appellant Doyle were concerned principally with what had been said by Craig at a meeting with Ronald and Graham, held at Euston station on 30 September 2007. The judge described Ronald as "a man who was throughout seeking to take the project forward in a planned and determined manner". The judge found that, once Craig engaged with Ronald, it was Ronald who in the main indicated what he wanted to happen, and Craig went along with what was suggested. By the date of the meeting, Ronald had obtained Craig's agreement that he was to receive the additional £2.25 million, paid into a Swiss bank account. This arrangement was to be concealed from the other accused. The meeting was held at Ronald's request. He told Craig that the others involved were worried about being arrested, and that he wanted Craig to reassure them. He told Craig what he wanted him to say at the meeting. Craig should only mention the first £2 million, assure the others that he was satisfied that the Duke did not wish the police to be involved, indicate that they were not at risk of being arrested because they were doing the right thing, and say that the contract for the return of the painting had been signed by the Duke and that copies of the contract were in the hands of the solicitors in Glasgow (i.e. the accused Jones and Boyce, who were also advising Graham and Doyle) and the Duke's solicitors. The meeting was secretly recorded by Graham. At the meeting, Graham indicated that he would only be involved as long as "we're doing it all proper". Craig indicated that it was "above board". The judge found that that was one of the assurances that Ronald had wanted Craig to give, and that Craig had been authorised by his supervising officer, in advance of the meeting, to give those assurances. Graham also indicated concern about being followed after he took possession of the painting. He suggested that, if Craig wanted him to take it to the nearest police station, he would do that. Craig indicated that he did not want Graham to do that. Craig explained in evidence that he did not agree to that suggestion because Ronald had indicated throughout that he did not want the police involved. As the meeting proceeded, Craig informed Graham that an agreement had been signed and was in the hands of solicitors. Later in the meeting, Craig said to Graham that, if he was captured, he (Craig) would be the first to stand beside him. That was another of the things he had been asked by Ronald to say during the meeting.

[45] The judge considered the implications of this meeting with great care. He found that, however carefully Craig chose his words, what he said was calculated to have encouraged Graham, and others to whom he might report, to remain involved in the venture. That was, of course, Ronald's purpose in arranging the meeting. He also found that, had Craig not been authorised to proceed as he did, that might have led Ronald to become suspicious. He noted that Graham and Doyle were being advised about legal matters by the other accused, and he found that Ronald might have been putting pressure on Graham to ensure that he and Doyle remained involved. Having heard the evidence of Graham, whom he found to be an unimpressive witness, the judge concluded that he was not satisfied that, had Craig not said what he did at the meeting, Graham would not have remained in the venture. In other words, Graham had not established, on a balance of probabilities, that he was induced by the conduct of the police to remain in the venture (and, to that extent, to engage in criminal conduct in which he would not otherwise have engaged). Nor had the onus of proof been discharged by Doyle, who did not give evidence. In the light of the evidence which he had heard, including evidence concerning the dealings of Doyle and Graham with persons from whom the stolen painting could be obtained, and evidence that Doyle had sought advice about the penalties for withholding information from the police relating to those dealings, the judge was not persuaded that Doyle was only prepared to proceed lawfully. He accepted that, if Doyle received a report on the meeting at Euston station or listened to the recording of the meeting (which was not established), what was said by Craig might have encouraged him to remain involved in the venture. In the absence of any evidence from Doyle, however, the judge was not prepared to hold that Doyle was induced by the conduct of the police to remain in the venture (and, to that extent, to engage in criminal conduct in which he would not otherwise have engaged). That is a conclusion which the judge was entitled to reach on the evidence before him.

[46] The judge also found that what Craig had said, for operational reasons, did not result in the police operation ceasing to be one undertaken in good faith. Craig's unwillingness to agree to the suggestion that the stolen painting should be taken to a police station was also not indicative of any lack of good faith. Were he to have agreed to the suggestion, that would have been in conflict with Ronald's express wish not to involve the police. It would also have involved a significant change of plan from the terms of the agreement. Had Craig agreed to such a change at the meeting, Ronald might have reacted in a manner which prejudiced the safe recovery of the painting.

[47] Craig's difficulty, in relation to the meeting, arose from the fact that one of the conspirators - Ronald - was seeking to deceive and manipulate two of the others, Graham and Doyle. Such conduct is not, of course, an uncommon feature of criminal ventures. It does not constitute entrapment, since the rationale of the doctrine of entrapment is absent. An undercover officer who has infiltrated a conspiracy may, in such circumstances, find himself in a difficult position. As was observed in R v Mealey (1974) 60 Cr App R 59 at page 62,

"... the person who finds himself placed in the organisation must endeavour to tread the somewhat difficult line between showing the necessary enthusiasm to keep his cover and actually becoming an agent provocateur, meaning thereby someone who actually causes offences to be committed which otherwise would not be committed at all".

As Lord Hoffmann noted in Looseley (at paragraph 69), "a good deal of active behaviour in the course of an authorised operation may therefore be acceptable". The general yardstick, as Lord Nicholls explained in Looseley, is whether the police conduct was no more than might have been expected from others in the circumstances. A passage from the opinion of McHugh J in Ridgeway v The Queen (at page 92), cited by Lord Nicholls in Looseley, is also of assistance on this point:

"The State can justify the use of entrapment techniques to induce the commission of an offence only when the inducement is consistent with the ordinary temptations and stratagems that are likely to be encountered in the course of criminal activity. That may mean that some degree of deception, importunity and even threats on the part of the authorities may be acceptable. But once the State goes beyond the ordinary, it is likely to increase the incidence of crime by artificial means. The courts of justice cannot countenance the use of their processes to prosecute offences that in substance have been artificially created by the misconduct of those whose duty is to uphold the law."

Even if the statements made by Craig at the meeting to some extent encouraged Doyle to remain actively involved in the conspiracy which was already under way (something which, as I have noted, was not established), it appears to me that the judge was entitled to find that the borderline of acceptable conduct had not been passed. There is, notoriously, no honour among thieves. The deception of some of the members of a criminal venture by, or at the instigation of, their leader in order to encourage them to remain involved can be regarded (within limits) as consistent with the ordinary stratagems that are likely to be encountered in the course of criminal activity. A police officer who has infiltrated such a venture may have no alternative but to go along with such deception if the police operation is to be maintained. In the present case, on the judge's findings, one could not sensibly say that the offences charged were "offences that have in substance been artificially created by the misconduct of those whose duty it is to uphold the law".

[48] As the judge recognised, the question whether a plea in bar based on entrapment should be upheld cannot be answered by the application of a mechanical test. He concluded, on an overall assessment of the evidence, that it had not been established that the conduct of the police crossed the boundary between causing an offence to be committed and providing an opportunity for the appellants to commit an offence. Nor were the actings of the police so seriously improper that to allow the appellants to stand trial would constitute an affront to public conscience and compromise the integrity of the justice system. He therefore refused their pleas in bar of trial. In reaching that conclusion, the judge applied the correct test; and, on the evidence, his conclusion is one that he was entitled to reach.

[49] It follows that these appeals must be refused.

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Reed Lord Carloway Lord Menzies	[2009] HCJAC 86 Appeal No: XC302/09 XC303/09 OPINION OF LORD CARLOWAY In Appeals Under section 74 of the Criminal Procedure (Scotland) Act 1995 by CALUM JONES First Appellant; and JOHN DOYLE Second Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

First Appellant: Dean of Faculty (Keen QC), Dunn; Capital Defence Lawyers (for Stephen Grady & Co. Glasgow)

Second Appellant: Bell QC, O'Rourke; Paterson Bell (for Beltrami & Co. Glasgow)

Respondent: A Mackay AD, Maciver; The Crown Agent

30 October 2009

1. Procedural Background

[50] The appellants are indicted, along with Marshall Ronald, Robert Graham and David Boyce, on a charge libelling that, between 18 July and 4 October 2007, at various addresses in Skelmersdale, London, Ormskirk, Liverpool, Lockerbie and the offices of Boyds, solicitors, Glasgow, they:

"...knowing that the painting attributed to Leonardo da Vinci and known as 'Madonna of the Yarnwinder' had been taken from its rightful owner, the former Duke of Buccleuch and Queensberry, now deceased, in an assault and robbery at Drumlanrig Castle...on 27 August 2003, did conspire together and with others...to extort money for the return of [the] painting from the...former Duke of Buccleuch...and from his son the current Duke of Buccleuch...and from the insurers of [the] painting, namely Hiscox UK...by menacing the...former Duke of Buccleuch...and the...current Duke of Buccleuch...and employees or agents of...Hiscox UK, and by putting them into a state of fear and alarm and apprehension that [the] painting would not be returned to them or would be damaged or destroyed if they did not pay to you a sum of money".

It is libelled that, in pursuance of the conspiracy, the accused took various steps relative to the return of the painting in exchange for at least two million pounds. The first step is said to have occurred on 30 July, when all five accused met at the offices of Boyds and discussed and agreed the means of carrying out the extortion. Thereafter, Mr Ronald took the lead and, on 10 August, contacted Mark Dalrymple, a loss adjuster acting for the insurers. He told him that he could arrange for the return the painting within 72 hours. Undercover police then became involved and Mr Ronald negotiated with them for the return of the painting. A written agreement was drafted. On 3 and 4 of October, Mr Graham and Mr Doyle collected the painting and delivered it to the offices of Boyds, where all five accused are said to have reset the painting. The final part of the libel is that all accused met in Boyds' offices with the intention of handing over the painting, but only if £2M, and a further £2.5M, was paid. There is an alternative charge of attempted extortion based upon a similar libel.

[51] The Preliminary Hearing took place on 4 September 2008, but this was continued to 17 November and then to 22 December, with a trial diet scheduled for 30 March 2009. By 22 December, certain Minutes giving notice of Preliminary Issues had been lodged. It was decided that these could be dealt with during the first week of the trial diet. In respect of the appellants, their Minutes state that they wish to raise Devolution Issues relative to Pleas in Bar of Trial "on the basis that it would be oppressive for proceedings to be continued against" them. The Minutes narrate, inter alia, that the undercover police "actively encouraged" the appellants to engage in the activities now forming the criminal libel. It is averred that "it would be oppressive and unfair for the proceedings to be continued against" the appellants and that the proceedings are incompatible with articles 6 and 8 of the European Convention on Human Rights and Fundamental Freedoms.

[52] The hearing on the Minutes commenced on 30 March and concluded on 15 April; the trial diet being postponed until 21 September. On 30 April, the Trial Judge repelled the pleas, but granted leave to appeal. The appeal was heard over two days on 25 and 26 August 2009.

2. Fact and Law found by the Trial Judge

[53] The painting, which has an estimated value of £40M, was stolen on 27 August 2003. It was insured for a much smaller sum and, in due course, the insurers paid the Duke of Buccleuch £3.8M, with the Duke retaining the right to buy back the painting for a similar sum in the event of its recovery. From the outline chronology provided by the Trial Judge and his other findings and "discussion", the following narrative can be constructed. In this regard, there was no substantial dispute about most of the Judge's primary findings in fact; although an earlier determination had permitted transcription of the whole of the evidence adduced before him. The inferences drawn by the Trial Judge from the primary facts were, on the other hand, vigorously challenged.

[54] Mr Ronald is a solicitor practising in England under the firm name "Marshalls". Mr Graham and Mr Doyle carry on business as private investigators in England and operate a website known as "Stolen Stuff Reunited". Messrs Graham and Doyle had known Mr Ronald for some time. He had acted as their solicitor. Mr Jones and Mr Boyce are solicitors in Scotland. They were partners with Boyds (later HBJ Gateley Wareing) in Glasgow. During July 2007, Mr Ronald, Mr Graham and Mr Doyle met together on a number of occasions in England. Messrs Graham and Doyle claimed to have information about the painting from "J" and "Frank". They discussed the possibility that the painting might be repatriated to Scotland and returned to the Duke of Buccleuch upon payment of a reward sufficient to remunerate themselves and to cover a payment by them of £700,000 to those holding the painting.

[55] During the latter part of July 2007, Mr Ronald contacted Mr Boyce, who was already known to him. On 30 July 2007, a meeting involving all five accused took place at Boyds' offices. Mr Jones, who gave evidence at the hearing, had been instructed to attend by his senior partner, Mr Boyce, because some drafting might have been required. Mr Boyce had certain materials, which had been sent to him by Mr Ronald, notably: "Heads of Agreement"; a PowerPoint presentation entitled "The Art Repatriation Project"; and a lecture entitled "The law and practice of rewards to recover stolen art", coincidentally delivered by Mr Dalrymple. The Trial Judge records Mr Jones' evidence of what occurred at the meeting, which he accepted, as follows:

"[70] At the outset of the meeting the accused Ronald outlined the project of returning the stolen picture to Scotland and the payment of a reward. The repatriation of the painting was conditional upon the negotiation of a reward. According to the accused Jones the accused Ronald made some reference to the PowerPoint presentation and the AXA lecture. The Heads of Agreement narrate that the painting had been stolen from the original thieves as part and parcel of a failed property transaction; that the second thieves wished to repatriate the painting and had asked the accused Graham and the accused Doyle to assist then; and that both the accused Graham and the accused Doyle had experience of repatriating stolen property. The Heads of Agreement also record that the protection of the parties from investigation by the authorities was central to the safe transmission of the painting from the custody of the second set of thieves to the custody of the solicitors. At the meeting it was explained that the accused Ronald, the accused Graham and the accused Doyle were looking for advice that the project outlined would be legal in Scotland.

[71] ...there had never been any suggestion that either he or the accused Boyce should be parties to the project. Nor had it ever been suggested that they should receive any share of a reward paid".

It was made clear by Mr Boyce that he did not want to know the identity of the persons with whom Messrs Graham and Doyle were in touch. Mention was made of the possibility of the painting being destroyed and that £700,000 would require to be paid for the project to proceed. The balance of the reward above that figure was to be split into five shares. Mr Jones advised that the next step, which Mr Ronald should follow on behalf of Messrs Graham and Doyle, would be to contact Mr Dalrymple. Interestingly, neither Mr Boyce nor Mr Jones made a file note of the meeting; but the meeting had been secretly recorded by the others. It was Mr Jones' position in evidence that he had not considered that what was involved might be illegal, but the Trial Judge was not convinced of that. He states:

"[89] I found the evidence of the accused Jones that he had never thought, or had any cause to consider, that there was anything unlawful about the planned return of the painting to Scotland difficult to accept and I did not do so...".

He explained in some detail why he reached that view. But, so far as the proposed transaction is concerned, he observes:

"[90] ... it would be not be unlawful in Scotland for the owner of a stolen painting to voluntarily pay by way of a reward for the return of a stolen painting such sum he wished to pay, even if part of that reward was ultimately going to find its way into the hands of the original thief or of others, who were in one way or another criminally involved in the retention of the painting from its lawful owner".

These remarks on legality relate only to the conduct of the owner.

[56] Mr Ronald contacted Mr Dalrymple by sending him a letter dated 11 August 2007. This said that he acted for clients who could assist in the recovery of the painting for a "reward/finder's fee". He proposed a meeting at the offices of Boyds, part of his legal team, to "negotiate the successful and speedy return of this precious artwork though an informal mediation type process". Mr Dalrymple contacted the police and then withdrew from the situation. Two undercover policemen became involved with Mr Ronald. These were David Restor, who claimed to be an art expert, and John Craig, who claimed to be a loss adjuster. Their general instructions were contained in a Report Book which gives guidance to undercover officers and includes the following:

"INSTRUCTIONS TO UNDERCOVER OFFICERS

1. A Police Officer must not act as an 'agent provocateur'. This means they must not

(a) Incite or procure a person, nor through that person anybody else, to commit an offence, or an offence of a more serious character, which that person would not otherwise have committed.

(b) Through pressure, encouragement or inducement invite any person to commit an offence, which that person would never otherwise have been committing. (Weir v Jessop 1991 SCCR 636)

2. However, a Police Officer is entitled to join a conspiracy which is already in being...

...

4. Police Officers are entitled to use the tool of infiltration of groups or organisations. In such a case it is proper for the undercover officer to show interest in, and enthusiasm for proposals made even though they are unlawful, but, in so doing, they must try to tread the difficult line between showing the necessary interest and enthusiasm to keep their cover (and pursue their investigation) and actually becoming an agent provocateur. Invariably this means you enter a criminal conspiracy or become part of a pre-arranged criminal offence.

...

6. Police Officers must bear in mind that the court will scrutinise carefully the role of the Officer in undercover operations and take into account the circumstances in which evidence was obtained. The principle of fairness will be applied by the court.

7. Police Officers must be conversant with Article 6 (the right to fair trial) and Article 8 (the right to respect for private and family life) of the European Convention on Human Rights".

[57] The Trial Judge accepted that from this point, when they first became involved with the accused, the primary objective of the police was the recovery of the painting, rather than to arrest anyone involved in its theft or reset. Any such arrest would be ancillary to the main objective. As soon as they heard of the contact between Mr Ronald and Mr Dalrymple, the police were suspicious of the actings of Mr Ronald and those he purported to represent. The Trial Judge also accepted that the undercover police, who were under the supervision of senior officers, acted in good faith throughout the events which then followed. He accepted too that, but for the use of undercover techniques, it is unlikely that the painting would have been recovered. He regarded the use of such techniques as "both sensible, from an operational point of view, and proportionate" (para [98]).

[58] Mr Restor telephoned Mr Ronald on 14 August. Mr Ronald told him that he was dealing with "volatile" people. He said that he had not approached the police as he had no instructions to do so and thought that this might not be helpful. This ended Mr Restor's involvement.

[59] Mr Craig telephoned Mr Ronald on 21 August, playing the role of loss adjuster and having been advised by his superior officer that Mr Ronald did not want the police contacted. Mr Ronald told Mr Craig that £700,000 was required for the persons who possessed the painting and five others were looking for one fifth of whatever "overage" there was from the reward. Over several weeks, Mr Ronald negotiated the terms of the return of the painting with Mr Craig. Mr Craig pretended to be authorised to act for the Duke of Buccleuch. On 29 August, Mr Craig suggested payment of £1.5M, but Mr Ronald had told him that this figure would be met with a lukewarm response. Mr Craig then said that, once the painting had been verified at Boyds' offices, £2M would be paid into Mr Ronald's firm account. The place of delivery at Boyds' offices had been suggested by Mr Ronald. Mr Ronald also raised the side issue of his "legal expenses".

[60] Meantime, a written contract had been drafted by Mr Jones and revised by Mr Ronald. On 11 September 2007, at the request of Mr Ronald, Mr Jones had e‑mailed him two versions of that contract, one under deletion of paragraph IV of the preamble which refers to a side letter about fees. This extraordinary document is in the following, amongst other, terms:

"MINUTE OF AGREEMENT
Between

MARSHALLS, Solicitors ...acting for and on behalf of undisclosed principals (the 'Facilitators') ('Marshalls')

and

JOHN CRAIG, ...acting for and on behalf of The Earl of Dalkeith (the 'Owner') (the 'Intermediary')

WHEREAS:

I 'The Madonna and the Yarnwinder' by Leonardo da Vinci (the 'Painting') was stolen from the Owner on or about 27^th August 2003; and

II Marshalls have been given access to a work of art (the 'Picture') that is believed to be the Painting; and

III Marshalls are instructed to facilitate the return of the Picture, if it is the Painting, to the Owner.

IV The Intermediary has agreed to pay the legal costs and expenses of Marshalls Solicitors in facilitating the return of the Painting which shall be agreed in a side letter.

THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:

1. PRE-COMPLETION ARRANGEMENTS

1.1 Marshalls shall confirm that the Picture is available and a date shall be agreed (the 'Completion Date') for the Picture to be made available to the Intermediary.

1.2 The Intermediary shall transmit the amount of £2,000,000.00 (the 'Funds') into the client account of Marshalls the details of which are:-

Sort Code ... Account Number ... HSBC ... Southport, Merseyside

...

no later than three working days prior to the Completion Date.

1.3 The Facilitators' agents will then arrange for the safe transportation of the Picture to the agreed location. For the avoidance of doubt, the individuals undertaking the task of moving the Picture to the agreed location will be deemed to be acting under and in terms of this Agreement to facilitate the safe repatriation of the Painting and the Intermediary acknowledges that they are acting as his servants or agents at that point in time.

1.4 The Intermediary warrants that he had no person acting on his or the Owner's behalf or under the direction of either of them or an agent of theirs has given any notification or information relating to the terms of this Agreement (nor will do so until after the Completion Date) to the law enforcement agencies. In the event that the Facilitators' agents are intercepted by the law enforcement authorities and the Picture is removed from the control of the Facilitators' agents and subsequently discovered to be the Painting, the Completion will be deemed to have taken place and the Funds will be released to the control of Marshalls.

1.5 Marshalls shall hold the Funds to the order of the Intermediary and no one else pending confirmation from the Intermediary that Completion has taken place, whereupon the Intermediary grants his irrevocable mandate in respect of the Funds to Marshalls to distribute the Funds according to the instructions that Marshalls have from their undisclosed principal.

2. EXAMINATION AND RETURN

2.1 Marshalls shall make the Picture available to the Intermediary and to David Restor a professional competent to confirm the authenticity of the Picture as being the Painting (an 'Examiner') at the offices of [Boyds]... at a time to be agreed.

...

3. POST COMPLETION

3.1 The Intermediary and the Owner shall have no interest in the source of the Painting or in the disposal of distribution of the Funds.

3.2 ...

4. CONFIDENTIALITY

4.1 The parties to the Minute of Agreement, and the principals for whom they act and who they bind by virtue of their execution of this deed, undertake to make no disclosure of any sort relating to the terms of this Agreement unless and until required to do so by operation of law, beyond the following phrase:

'An undisclosed sum was made available to secure the repatriation of this painting'

4.2 ...

4.3 ...".

[61] Subsequent discussions between Mr Ronald and Mr Craig anticipated delivery of the painting on 3 or 4 October. Mr Ronald explained that there had been a last minute demand for the £700,000 to be paid "up front", but Mr Ronald had reached a compromise whereby £350,000 only would be needed. Mr Ronald had arranged that. He had also drafted the side letter, which involved an additional payment of £2.5M for his services, payable into a Swiss bank account. In a telephone call of 27 September, Mr Craig said that payments totalling £4M were a "viable possibility". This level of sum had been mentioned in earlier negotiations with a man called Brown. Further calls two days later included references to Mr Doyle being "flaky". Mr Ronald suggested that he, and either Mr Graham or Mr Doyle, should meet Mr Craig in London so that Mr Craig could re-assure them. He told Mr Craig what to say at the meeting; notably only to mention the £2M and to re-assure them of the legality of the transaction, i.e. that they would, in transporting the painting, be acting as Marshalls' agents in terms of the contract, which had been signed. The contract had not been signed.

[62] On 30 September 2007, Mr Ronald and Mr Graham met Mr Craig at a public house in Euston Station. That was the only time that Mr Craig actually met any of the accused prior to the ultimate gathering at Boyds' offices on 4 October 2007. Mr Graham stated that he would only be involved if "we're doing it all proper". Mr Craig re-assured him that it was "above board", meaning that what was being done was in accordance with the contract, which he said had been delivered to Boyds and the Duke's solicitors. This assurance was what Mr Ronald had wanted him to give. Mr Graham was worried about being followed after he was given the painting. He suggested that he might take it to the nearest police station, but Mr Craig said that he did not want him to do that. He said that he would explain why this was so, but Mr Graham had talked across him and the conversation had moved on. He had said it because he knew Mr Ronald did not want the police involved. Mr Craig accepted that Mr Graham could have taken it that he was being re-assured by Mr Craig about the legality of what was to happen.

[63] The Trial Judge's conclusions concerning this meeting include the following:

"[100] ...it also has to be taken into account that the views John Craig expressed during the meeting at Euston Station related to contractual arrangements, which had been set out in a contract drafted by the accused Jones and the accused Ronald. Subject of course to the discussions that had taken place earlier as to the level of the reward that would be payable, those contractual arrangements were presented to John Craig and accepted by him. They describe a transaction which would have been lawful in Scotland if (a) the accused Ronald (and his clients, the accused Graham and the accused Doyle) had not engaged in any criminal activity, when acquiring information about or taking possession of the stolen painting, or seeking and negotiating a reward, and (b) John Craig had been duly authorised by the Duke of Buccleuch to negotiate and arrange for the payment of the reward. Leaving to one side the position as between the Duke of Buccleuch and the insurers, which would have been for them to resolve, as far as the law of Scotland is concerned, there would have been nothing unlawful involved in the Duke of Buccleuch as the owner of the stolen painting (or on behalf of all the owners of the painting) paying, and the accused Ronald taking receipt of, a reward of the sum specified in the contract. The provisions of the Theft Act 1968 have no application in Scotland".

[64] Mr Ronald obtained £350,000 in cash and a banker's draft for £150,000. He gave these items to Mr Graham. Mr Graham gave them to "J" at an unnamed pub. In exchange for the painting, Mr Graham and Mr Boyle brought the painting to Boyds' offices. Mr Ronald, Mr Jones, Mr Restor and Mr Craig were all there; and shortly thereafter, so were the police.

[65] It was agreed before the Trial Judge that the applicable law was contained in Brown v MH Advocate 2002 SLT 809; the Opinions in which, the Judge considered, "indicate that the guidance given by the House of Lords in [R v Looseley [2001] 1 WLR 2060] is equally applicable in Scotland. From the latter case, the Judge derived certain principles as follows:

"(a) Every court has an inherent power and duty to prevent abuse of its process. Where there has been an abuse of executive power amounting to an affront to the public conscience then criminal proceedings will be stayed. A prosecution founded upon entrapment would be an abuse of the court's process.

(b) Entrapment arises when the commission of the charges an accused faces has been brought about by the state's own agents. State-created crime is unacceptable and improper.

(c) When exercising its inherent jurisdiction to stay proceedings as an abuse of process on the ground of entrapment, the Court requires to balance the need to uphold the rule of law by convicting and punishing those who have committed crimes and the need to prevent law enforcement agencies from acting in a manner which constitutes an affront to public conscience. Undertaking that balancing exercise involves a comprehensive review of the whole operation in which the agents of the state became involved with the accused.

(c)(sic) Entrapment is not a substantive defence to a criminal charge. When dealing with a plea in bar of trial on the ground of entrapment, the Court must assume that the accused has carried out the criminal conduct alleged against him and that he did so freely and with the necessary intent.

(d) The onus of establishing the factual basis for a plea of entrapment rests on an individual accused. Depending on the evidence led, the Court could conclude that some but not all of those being prosecuted on the same indictment had been entrapped. When the onus is discharged by an individual accused the plea in bar of trial on his behalf falls to be sustained.

(e) A plea in bar of trial based on entrapment involves the accused claiming that he was lured, incited, enticed or pressurised by police officers, or by some other agents of the state, into committing a crime which he would not otherwise have committed.

(f) As to where the boundary lies in respect of what is acceptable police behaviour, no single factor or formula will always produce the correct answer or be determinative. The relative weight and importance of relevant factors depends upon the particular facts of the case, including the accused's own circumstances.

(g) In some instances a degree of active involvement by the police in the commission of a crime can be regarded as acceptable. The use of pro-active undercover techniques by the police is required in the investigation of some categories of criminal activity more than with others. The secrecy of and the difficulty in detecting the particular criminal activity under investigation are relevant considerations. So also is the question of whether the strategy adopted by the police, or undercover agents, involved their acting in a manner that might be encountered by those engaged in the course of criminal activity.

(h) One approach to identifying the limits of acceptable police conduct is to consider whether, in the particular circumstances of the case, the undercover police officers or other agents of the state did any more than present the accused with an unexceptional opportunity to commit a crime he intended to commit, or had already embarked on committing. However the extent to which that approach may be helpful depends on whether members of the public are liable to have found themselves in the situation in which undercover agents were operating.

(i) When considering a case to which the doctrine of entrapment may apply, the Court is also concerned with the reasons for the police acting as they did. The police must act in good faith. Reasonable suspicion on the part of the police that a crime has been committed, or may be about to be committed, is one way of testing for the existence of good faith.

(j) Linked with the important factor of reasonable suspicion is another important factor of supervision. Supervision involves that the investigation is authorised and that undercover agents are monitored by a supervising officer. If an officially authorised investigation is taking place (or has previously taken place) into offences of a similar nature, then good faith can be established, even if an individual accused is someone to whom no personal suspicion had previously been attached.

(k) Ultimately the overall consideration is whether the conduct of the police or of other law enforcement agencies has been so seriously improper as to compromise the integrity of the judicial system and bring the administration of justice into disrepute.

(l) That the exercise of the court's power to stay proceedings on the ground that they constituted an abuse of process conformed with, and was unaffected by, article 6(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms and the jurisprudence of the European Court of Human Rights".

[66] In determining the case against Mr Jones, the Trial Judge concluded that it was readily understandable why the police had suspected Mr Ronald and his clients and had mounted an undercover operation to recover the painting. He rejected the submission that, prior to 4 October 2007, there were no grounds for suspecting criminality on the part of Mr Jones at Boyds given the terms of the letter of 11 August, the nature of the contract and the place of delivery. The ultimate reward figure proposed by Mr Craig was in line with the maximum 10% of value deemed acceptable to loss adjusters in terms of the AXA paper. The Trial Judge held that

"[138] ... the police did not cross the boundary between offering the opportunity to commit an offence and causing the commission of an offence that would not otherwise have taken place".

In so holding, he stressed that the contract governing the return of the painting had been drawn up by Mr Jones and Mr Ronald. Mr Craig had simply accepted its terms. Thus, reasoned the Trial Judge, the information attributed to Mr Craig, which is alleged to have caused Mr Jones to allow the painting into his offices on 4 October, originated from what he and Mr Ronald had written in the contract. The Trial Judge was not persuaded that the evidence demonstrated any more than that Mr Jones was deceived into thinking that Mr Craig was a loss adjuster representing the Duke of Buccleuch, who had discussed with Mr Ronald the arrangements for the return of the stolen painting. Mr Craig had simply gone along with what Mr Ronald and Mr Jones wanted to him to do in the terms of the contract. The Trial Judge continues:

"[141] On that analysis I am not satisfied that John Craig and the senior police officers directing and supervising John Craig did any more than provide the accused (including the accused Jones) with the opportunity to commit the offences with which they are charged. In my opinion it has not been proved that John Craig incited the accused Jones to act in a manner that he would not otherwise have agreed to act, after he agreed to assist the accused Ronald in the project in which the accused Graham and the accused Doyle were also involved. ...As far as the meeting at Euston Station is concerned there was no suggestion in the evidence that the accused Jones had been told anything about what happened during that meeting prior to 4 October. Whether what the accused Jones did constituted actings from which a jury would be entitled to conclude that he committed the charges he faces is not a matter for me. Likewise whether such a conclusion should be drawn, from what the accused Jones did, is another issue that it is not for me to decide".

[67] The Trial Judge records the submission on behalf of Mr Jones that it was open to the jury to convict of reset only, in terms of head (j) of the indictment. Since the police had encouraged and allowed the painting to be taken to Boyds' offices on 4 October, when they knew that Mr Graham and Mr Doyle would not be acting as the agents of the owner, Mr Jones had been drawn into the commission of the crime of reset, which was a crime he would not otherwise have committed. Therefore, it was submitted, the plea in bar of the whole indictment still required to be sustained in the absence of the Crown amending that part of the indictment to exclude Mr Jones. But the Trial Judge rejected this submission, again on the basis that he was not persuaded that Mr Craig or the police did any more that provide Mr Jones with the opportunity of committing the offences, including that of reset. Thus, the Trial Judge concludes:

[144] For these reasons and having regard to the points of a more general nature which I have made in respect of the application of the doctrine of entrapment to the other accused, I am not persuaded by the evidence that I have heard that as far as the accused Jones was concerned the conduct of the police or of the undercover agents acting under their direction and supervision were so seriously improper that were the accused Jones to stand trial on the charges the Crown has brought against him it would constitute an affront to public conscience and compromise the integrity of the justice system. In these circumstances I repel the plea in bar of trial on his behalf and refuse the Minutes lodged in his name".

[68] Mr Doyle did not give evidence before the Trial Judge. His colleague Mr Graham had done so. It is necessary to consider some of the observations made by the Trial Judge on Mr Graham's evidence before looking specifically at his findings on Mr Doyle's Minute. He accepted that Mr Craig had lied during the meeting in the Euston pub and had misled Mr Graham not only about his being a loss adjuster acting on behalf of the Duke of Buccleuch, but also about a number of matters he claimed to have done in that capacity. The Trial Judge expresses "serious reservations" about the credibility of some of the evidence given by the Mr Graham, especially in relation to his assertion that he would only have proceeded with the project if he had had legal advice that it was lawful to do so. But he did reach the conclusion that what Mr Craig said during the Euston meeting went further than merely reassuring Mr Graham that Mr Craig was who he claimed to be. Rather, what he had said "was calculated to have encouraged the accused Graham, and others to whom he might report, to remain involved in the venture" (para [115]). On the other hand, he also accepted that had Mr Craig not been authorised to proceed as he did, it might have led to Mr Ronald becoming suspicious and, had that happened, the whole operation to recover the stolen painting might have been imperilled (para [116)]. The Trial Judge concluded that, but for Mr Craig's actions at the meeting, "it is possible that one or both of the accused Graham and the accused Doyle would not have been prepared to proceed with the venture in the manner and on the dates that they did" (para [117]), but "in the absence of any evidence from the accused Ronald or the accused Doyle, I am not prepared to reach any firmer conclusion".

[69] Having reached these conclusions, the Trial Judge proceeded to the view that he was "not been persuaded that I should reach my decision on the Minute for the accused Doyle on the basis that he was only prepared to proceed lawfully and, by implication, that he had acted throughout on the understanding that what he was doing was lawful" (para [124]). He continues:

"[125] ...the fact that he may have been "flaky", the fact that, as with the accused Graham, he may have wished to be satisfied that John Craig was a representative of the Duke of Buccleuch, the fact that he have (sic) wanted to have signed contracts and the fact that he may have wished to be assured that everything was lawful and that he would be safe from arrest, could be equally consistent with the attitude of someone engaged in the commission of the offences charged as they are with the innocence of those charges that he claims.

[126] It follows from what I said about John Craig's role having involved deception that I accept that the accused Doyle acted under the belief that John Craig was as a (sic) loss adjuster acting for the Duke of Buccleuch. On the assumption that the accused Doyle committed the offences of which he was charged, I am satisfied that he did so by taking advantage of the opportunity presented by John Craig about which he was informed. If prior to 3 October and 4 October 2007, the accused Doyle received a report on the meeting at Euston Station from the accused Graham and listened to the recording of that meeting at Euston Station, I accepted that what he understood John Craig to have said was calculated to have encouraged him and may have encouraged him to remain involved in the venture of returning the stolen painting to Scotland.

[127] However in the absence of any evidence from the accused Doyle, I am not prepared to hold that John Craig's actings induced him to commit an offence which he would not otherwise have committed the offences with which he is charged or that but for what John Craig said during the meeting at Euston Station, the accused Doyle would have withdrawn from the venture before 3 October 2007. On those issues, I am not persuaded that he has discharged the onus of proof which is on him.

[128] Similarly, I have not been persuaded by the evidence I have heard that as far as the accused Doyle was concerned, the conduct of the police or the undercover agents acting under their direction and supervision was so improper that were the accused Doyle to stand trial on the charges the Crown has brought against him that would constitute an affront to public conscience and would compromise the integrity of the justice system. In these circumstances, I have reached the view that the position of the accused Doyle in respect of his Minute is no stronger than that of the accused Graham. In these circumstances, I repel the plea in bar of trial on his behalf and refuse the Minute in his name".

3. Submissions

MR JONES

[70] Entrapment was a plea in bar of trial in which the onus was on the individual accused to make out. It was not a substantive defence (R v Looseley (supra), Lord Nicholls at para 10)). It assumes that the accused did the act with the necessary intent, but the commission is brought about by the state's own agents. Prosecution is thus an abuse of the court's process (Brown v HM Advocate (supra), Lord Clarke at para [2]) and a breach of Article 6 (HM Advocate v Bowie 2003 SCCR 105, Lord Carloway at para 27). Fairness was relevant but not determinative. It could be that one accused should be prosecuted but another not. The court is concerned with the conduct of the police rather than the accused and whether the decision to prosecute amounts to an abuse of executive power (R v Looseley (supra), Lord Hoffman at para 40). The Crown had alleged conspiracy in advance of the undercover police operation, but it was only after that police involvement that this appellant became involved. The reset of the painting was committed at the instance of the police. The appellant had said that the painting could not be lawfully possessed without the owner's authority. Mr Craig had said that he had been authorised by the owner to appoint the others as the owner's agents and the appellant had relied upon that assurance. The police had done more than provide the appellant with an opportunity to commit a crime, they had instigated the offence ((R v Looseley (supra), Lord Hutton at para 116), especially by offering a sum of money well in advance of what would have been offered by a real loss adjuster. The police had caused the appellant to commit an offence which he would otherwise not have committed (R v Looseley (supra), Lord Hoffman at para 81), notably the reset. As long as that libel remained against the appellant, the trial should be barred. It was accepted that, without that libel, the appellant could not advance the current argument. Extortion required a threat (Gordon : Criminal Law (3^rd ed) para 21.15). The appellant's actings had not involved that element. The painting had only found its way to Boyds' offices because of the actions of Mr Craig. Otherwise, the painting would have been taken to a local police station by Mr Graham. The Trial Judge had erred in his application of the principles which he derived from Looseley (supra) to the facts. It was also unclear what standard of proof he had applied to his consideration of the evidence. It should have been balance of probability (Chalmers and Leverick: Criminal Defences and Pleas in Bar of Trial, para 2.17). In these circumstances, the plea ought to have been sustained.

MR DOYLE

[71] The police had instigated the offence and the prosecution was a contravention of Article 6 of the European Convention (Teixeira de Castro v Portugal [1998] 28 EHRR 101). The appellant had come into possession of information regarding the painting and had taken legal advice on how to return it legally. He was then induced to do something, which he would otherwise not have done, by being assured by Mr Craig, especially at the Euston meeting, that what was being done was legal. If Mr Craig had been a genuine agent of the owner and had duly authorised the appellant, no crime would have been committed. What was done was an outrageous deceit. The collection, and hence reset, of the painting would not have occurred but for the assurances of legality. There were three possibilities: (i) the appellant had no mens rea, as he wanted to carry out the work legally; (ii) he did have the mens rea, but only because he had been entrapped; and (iii) he would have collected the painting regardless of the assurances. It was accepted, however, that the Court had to assume that the appellant had carried out the criminal conduct alleged against him and that he did so freely and with the necessary intent. The crown having elected to prosecute the appellant, that amounted to a breach of Article 6 and trial ought to be barred (R v HM Advocate 2003 SCCR 19). The plea should have been sustained.

CROWN

[72] The Advocate Depute seemed content initially to accept the remarks in R v Looseley (supra) as representing Scots Criminal Law. In determining whether an accused had been lured into committing a crime, the Court could take into account the steps which had occurred in advance of police involvement. It was only once all the evidence of what occurred before and after that involvement was out that the court could decide whether the appellants had been so lured or induced into committing a criminal offence, which they would not otherwise have committed, or whether the conduct of the police was acceptable in the sense of the police being seen simply as "going along" with what was happening. Since what was alleged here was a conspiracy pre-dating the involvement of the police, the tests for entrapment in Looseley (supra) had not been met.

[73] On being asked whether the plea ought properly to be advanced as an objection to evidence as unfairly obtained, as distinct from a plea in bar, the Advocate Depute seemed to accept that the High Court authority of Weir v Jessop 1991 JC 146 ought to prevail over the English decision of Looseley (supra). However, he later stated that, since the proceedings before the Trial Judge had been conducted on the basis of the applicability of the principles in Looseley (supra), he was "not in a position" to depart from that state of affairs.

[74] The nature of the offence was such as to justify the techniques employed by the police and it was accepted that they had acted in good faith. The police had a reasonable suspicion upon Mr Ronald approaching the loss adjuster and stating that he could arrange the return of the painting for a minimum sum of money to be paid to those behind him. The police required to follow that up and what happened thereafter was a developing situation, principally involving Mr Ronald. The offer by Mr Craig, initially of £1.5M, was not unreasonable standing the demand for a minimum £700,000 plus "overage" to be split five ways. The increased offer was only made after the "lukewarm" response. Mr Craig had gone along with Mr Ronald's suggestions. The Euston meeting was at Mr Ronald's instigation. Mr Doyle's flakiness had not been about the lawfulness of the deal but about the risk of arrest. Mr Craig had said that the painting should not be delivered to a police office because that was not what was in the contract and Mr Ronald would become suspicious. Mr Jones had never met Mr Craig. He asserted that he would not have allowed the painting into his office but for the assurance that Messrs Graham and Doyle were acting for the owner; but that was only an assertion and it was not, in any event, inconsistent with him acting in concert to extort money. The Trial Judge had taken all the evidence into account and took the view that all that the police had done was no more than to allow an opportunity for the crime to be committed. He was entitled to take that view and the plea had been correctly refused. Although the Trial Judge had not specifically discussed Article 6 fairness, he had addressed whether, without the inducement, the appellants would have committed the offence. He had held that the police actings had not induced the offence.

4. Decision

[75] It is important to determine two matters. The first is the identification of what constitutes "entrapment" in Scots Criminal Law. The second is the ascertainment of how Scots law treats it procedurally. However, it may not be possible to separate these matters into two entirely distinct areas. They may be intertwined. In carrying out this exercise, it may, of course, be important for the Court to observe how other legal systems approach "entrapment". It must also ensure that it is able to enforce, in an effective manner, the right to a fair hearing set out in Article 6 of the European Convention, notably, in the current context, as interpreted in Teixeira de Castro v Portugal (supra). But, equally, the Court should be careful before simply adopting the approach of other legal systems which, while sound in the context of these systems, may not mesh easily with traditional, accepted and settled laws and procedures in this jurisdiction. As a preface to the present analysis therefore, it must be noticed that much of the language in R v Looseley (supra), such as its references to "abuse of process" by the Crown, would not be familiar to a Scots criminal lawyer. Furthermore, it is especially important to observe that neither the speeches in R v Looseley (supra), however persuasive or illuminating, nor the obiter dicta in Brown v HM Advocate (supra) can overturn established Scottish precedent. The Court ought to have firmly in mind its own principle of stare decisis. In deciding a particular case, the Court ought not to introduce new laws or procedures, where these are in conflict with existing law and procedure, even if it considers that, from a theoretical perspective, they constitute an improvement on the established situation.

[76] There is a very helpful discussion on the law and practice relating to "entrapment" throughout the English speaking world in chapter 20 of Chalmers and Leverick: Criminal Defences and Pleas in Bar of Trial. There is a full academic commentary on the advantages and disadvantages of treating "entrapment" as a substantive defence, a plea in bar of trial or an objection to the leading of evidence unfairly obtained. It would serve no purpose to repeat that discussion and commentary. It is sufficient to record the accuracy of the authors' statement (para 20.08) that the approach of the Scottish courts, at least until Brown v HM Advocate (supra), was to exclude evidence obtained by entrapment on the basis that it would be unfair to an accused person to admit this evidence. It is instructive to discover where that approach is authoritatively described.

[77] Avoiding the depths of history, it is enough to start with alcohol: Marsh v Johnston 1959 SLT (notes) 28. This was the classic situation of plain clothes police posing as ordinary customers and ordering drinks after the expiry of the permitted licensing hours, having seen such customers being sold drink beforehand. The case proceeded in the Justice of the Peace Court in Castle Douglas. The report of the case is short and does not disclose whether an objection was taken to the officers' evidence or whether the issue was simply raised in closing submissions. The mode of appeal was by Bill of Suspension, complaining about the admissibility of the evidence, although the basis for that complaint is also not clear. The Lord Justice General (Clyde) stated:

"If evidence of this kind was to be regarded by the Court as necessarily being incompetent, there would be a wholesale flouting of the provisions of Acts of Parliament. It would have been a very different matter if any unfairness to the complainer had been established. If, for instance, the police had pressed him to commit the offence or had tricked him into committing an offence which he would not otherwise have committed the position would have been quite different. But there is no question of anything of that kind here. The police officers were instructed not to buy any drink outside hours until they had seen two other customers supplied with drink outside the permitted time. When they intervened the Act of Parliament had already been breached by the complainer, and they were engaged in detecting the commission of an offence against the Act. There can...be no justification in treating such evidence as being in any way unfair. In cases of this type in Scotland, the test for the competency of such police evidence is "was it fair to the accused", and in determining that matter the Court has got to try to reconcile two important interests which are liable to come into conflict, (1) the interests of the citizen to be protected from illegal or irregular invasion of his liberties by the authorities, and (2) the interest of the State to secure that evidence bearing upon the commission of a crime and necessary to enable justice to be done shall not be withheld from a Court of Law on any mere formal or technical ground".

The Lord Justice General distinguished the facts from the English case of Brannan v Peek [1948] 1 KB 68 in stating:

"The conduct of the policeman in that case was grossly unfair and amounted to a trick upon the accused, in order to induce him to commit an offence".

As a starting point, the Lord Justice General's dicta are useful in making the distinction between the situation where the police are attempting to secure evidence of a crime, which they have already suspected the accused of committing, and that where they pressure or trick him into committing an offence, which he would not otherwise have committed. In the latter situation, the evidence of what occurred as a result of the pressure or trick would be excluded as "unfairly obtained".

[78] Almost two decades later, two very similar cases were prosecuted in the District Court in Kingussie. They were appealed, with the same result: Cook v Skinner; Macdonald v Skinner 1977 JC 9. Again, it is not clear whether the issue was a matter of objection or ultimate submission, but the Lord Justice General (Emslie), delivering the Opinion of the Court, concluded (p 13):

"For the appellant the submission was that facts found...demonstrated that the evidence of the police constables was not fair to the appellant in respect that they were parties to a trick to induce the appellant to commit the offence libelled...

...there is no substance in this submission. The question of whether the evidence of the police was fairly or unfairly obtained is a question of fact and opinion. It is quite impossible to categorise conduct in the obtaining of evidence which will be regarded as fair and conduct in the obtaining of evidence which will be regarded as unfair. It is clear, however,...that where the Court has held that evidence has been obtained unfairly there has been established, on the part of the police officers concerned, conduct which clearly amounted to a trick upon the accused, and, in particular, a trick which involved positive deception and pressure, encouragement or inducement to commit an offence which, but for that pressure, encouragement or inducement, would never have been committed at all".

[79] Another decade passed. The availability of alcohol increased but the government sought to deal with the emerging drug problem, hence Weir v Jessop 1991 JC 146. That was a summary prosecution for the supply of cannabis. There, the Lord Justice-Clerk (Ross) carried out a similar exercise to that performed by the Lord Justice General and concluded that the law relating to the fairness, and hence admissibility, of evidence of statements by accused persons was broadly applicable to circumstances where "entrapment" was alleged; this time in the form of undercover officers asking suspected cannabis dealers for "some hash". He applied the principles readily derived from Marsh v Johnston (supra) and Cook v Skinner (supra) to hold the evidence admissible on the basis that the conduct of the police (p 154):

"did not amount to an unfair trick upon the accused. Moreover, even though there was an element of deception...there was no pressure, encouragement or inducement to commit an offence which the appellant would never otherwise have been committing at all".

Lord Morison put matters thus (p 155):

"But although deception as to the policeman's identity was involved, that deception cannot reasonably be regarded as having induced the commission of the crime...The essential feature of the crime was not one which resulted from any undue pressure or persuasion on the part of the policeman. It was a purely voluntary act on the part on the appellant. The appellant was not tricked into doing something which he would ordinarily do".

Lord Caplan said (p 158):

"What is critical is that the investigator should not in any way seek to tempt, persuade or otherwise put pressure on a supplier to engage in a transaction that he was not otherwise perfectly prepared to transact".

[80] Over a decade later, the point arose again in Brown v HM Advocate 2002 SLT 809. It is important to note that the appeal in that case was in respect of a conviction at the High Court in Glasgow on 5 February 1998. Between that date and the date of the appeal hearing, the decision in Thompson v Crowe 2000 JC 173 had been announced. That is important. In the previous reported cases, the prosecutions were at summary level. Here, as in many unreported cases, the prosecution was on indictment. In Balloch v HM Advocate 1977 JC 23, the Lord Justice-Clerk (Wheatley) had made it clear that, in relation to evidence challenged as unfairly obtained (p 28):

"a judge...will normally be justified in withholding the evidence from the jury only if he is satisfied that no reasonable jury could hold that...[the evidence] had been extracted by unfair or improper means".

Of course, that was in the context of extrajudicial confessions, but the same thinking applied to other areas of evidence unfairly obtained. If there had been an allegation of "entrapment", in the sense now advanced, the issue of whether an accused person had been entrapped would, in practice, have been left to the jury to determine. There are strong democratic advantages to that course of action. The fairness of the admission of the testimony, and in effect the fairness of the trial proceedings, could be determined by a jury having regard to their collective view on the acceptability of police action in their locality. But Thompson v Crowe (supra) eliminated that option. Henceforth, it would be for a judge to determine admissibility, and hence fairness.

[81] At the time of the trial in Brown v HM Advocate (supra), the appellants would have expected any issue of "entrapment" to have been decided by the jury; hence no objection was taken to the admissibility of the evidence. Accordingly, in that case, the appeal could hardly have been presented as one involving the wrongful admission of evidence (vide Lord Marnoch at para [5]). It was presumably because of that obstacle that the appellants presented the case on the basis of "entrapment" simpliciter. But, as Lord Marnoch observed, and as the other judges agreed (Lord Philip at para [9], Lord Clarke at para [1]), "entrapment" never properly arose, although it had been left to the jury to determine (para [7]). But, in looking at the essence of a plea of entrapment, Lord Marnoch put it shortly (para [11]):

"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".

[82] Although "entrapment" had hitherto been an aspect of unfairness, to be determined in the context of admissibility of evidence, Lord Marnoch went on to express obiter views that:

"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...

[12] So far, therefore, as far as entrapment is concerned, where, as will often be the case, all the relevant facts are known in advance...the matter should be dealt with by way of a plea in bar of trial... [T]he essential basis of a plea of oppression is that, for whatever reason, the prosecution would be unfair to the accused...".

All the judges paid tribute to the "penetrating and illuminating" analyses of "entrapment" in R v Looseley (supra). Lord Marnoch adopted Lord Nicholls' view that it was a "form of oppression and abuse of process". Lord Philip commenced with his own statement (para [10]) that:

"Entrapment occurs when the state (in the form of the police or other agency) becomes involved in the instigation of crimes which would not otherwise be committed, whether by deception, pressure, encouragement or inducement".

That view echoes those in the earlier Scottish cases. But Lord Philip continues by following, in particular, Lord Nicholls:

"Their Lordships affirmed that entrapment so defined is an abuse of state power, and that the prosecution of persons induced to commit crimes in this way amounts to an abuse of process, of which the courts should have no part. Entrapment is objectionable because of the unacceptability of the conduct of the state, as opposed to any prejudice or unfairness which may be suffered by the perpetrator of the crime".

He appears to accept that the basis of the exclusion of evidence brought about by entrapment is "not fairness, but that the case should not have been proceeded with at all". He concludes that (para [14]):

"cases in which entrapment arises fall into a different category from those Scottish cases in which "oppression" is founded upon in bar of trial. In entrapment cases, the abuse of state power is so fundamentally unacceptable that it is not necessary to investigate whether the accused has been prejudiced or has been the victim of unfairness".

Lord Clarke followed the line that a prosecution resulting from entrapment required to be stopped as "to allow it to continue would involve the court tolerating an abuse of process... 'which amounts to an affront to the public consciousness'" (para [2]). He expresses the view that the court's power ought not to be confined to prevent cases only where there was "oppression, as traditionally defined in Scots law, or, more generally, where unfairness to the accused could be seen to be involved".

[83] Much of the obiter dicta in Brown v HM Advocate (supra) is concerned with the Court's power to limit executive action. As general statements of desire they may be laudable. But, in a case where entrapment is properly raised, as it is here, the search remains for the law as it is, rather than what it ought to be. Despite the Advocate Depute being content to ignore the approach of the High Court over the last four decades, it still has to be borne in mind that Scots Law has hitherto dealt with "entrapment" in the context of admissibility of evidence. It is because it was accepted by all that Scots Law did approach "entrapment" in this way that there was no need to consider it in any other procedural context such as a plea in bar of trial. The authoritative Scottish decisions in this area cannot be airbrushed out of the law simply because the courts in other jurisdictions have opted to treat entrapment as a basis to "stay proceedings as an abuse of process" (whatever these terms may mean within those jurisdictions). The primary method of dealing with claims of "entrapment" in Scotland is by way of objection to the evidence as unfairly obtained. Quantum valeat, the law appears to be in broad accord with that in Australia (Ridgeway v R (1995) 184 CLR 19; 3 LRC 273). It is thus not unique.

[84] The fact that Scots Law deals with "entrapment" in this way presents no procedural problem now because of the stage at which an objection to the evidence ought to be taken. In High Court solemn proceedings, in terms of section 72(6)(b) of the Criminal Procedure (Scotland) Act 1995, it is incumbent upon the Court to dispose of any preliminary issue, of which a party has given notice, at a Preliminary Hearing. A party is required to raise as a preliminary issue any objection to the admissibility of evidence (section 79(1)(2)(b)(iv); see also s 71 for the Sheriff Court). It is also incumbent upon the Court, in terms of section 76(6)(c), to ascertain whether, irrespective of whether notice has been given, there are objections to the admissibility of evidence which any party wishes to raise. Thus, any objection based upon "entrapment" ought to be dealt with on the basis of evidence "unfairly obtained" at a Preliminary Hearing in advance of trial. This procedure was introduced by the Criminal Procedure (Scotland) Act 2004, after the decision in Brown v HM Advocate (supra). Thus, although it is easy to see that, at the time of Brown, there were perceived procedural advantages in treating "entrapment" as a plea in bar determined in advance of trial, these advantages no longer exist.

[85] If there has been "entrapment" as defined in the established cases, under solemn procedure the evidence will be excluded in advance of trial (although exclusion may also occur at a trial diet in certain unforeseen circumstances). It is only once a decision has been made on the admissibility of the evidence that the issue of the overall fairness of the trial process, in terms of Article 6 fairness as explained by Teixeira de Castro v Portugal (supra), can properly arise. Admissibility of evidence is a matter for domestic law. Scots law excludes evidence of events brought about by "entrapment" (supra). It ought to be seldom, therefore, that a plea in bar of trial, which might be based on oppression at common law or in terms of Article 6 unfairness, could succeed. If evidence of events brought about by "entrapment" can be excluded as unfairly obtained, it cannot be asserted that proceedings at a future trial, based on other evidence, will be either unfair or oppressive.

[86] It is not appropriate for the Court to stigmatise the actions of the Lord Advocate, in deciding whether to prosecute a particular accused, as "an abuse of process". The Lord Advocate, as the independent public prosecutor, has a particular place within the Scottish criminal justice system, set apart from the police. The Court can sustain a plea in bar of trial if it regards proceedings as "oppressive" against a particular accused, including where it is demonstrated that a trial (in the absence of properly excluded evidence) can never be fair in terms of Article 6 for whatever reason. But it cannot do so on any lesser or more general grounds. In that respect, the opinion of Lord Marnoch in Brown v HM Advocate (supra) regarding the significance of oppression in its traditional sense is sound.

[87] For the above reasons, since this issue ought first to be the subject of a decision on the admissibility of the evidence, the pleas in bar of trial, which are otherwise correctly phrased in terms of oppression and encouragement to commit crime, must fail. However, it would be inappropriate to deal with the pleas simply on this basis. The merits of the Minutes should be considered to see whether the evidence stemming from any "entrapment" ought to be excluded as unfair.

[88] It is important not to over elaborate or to indulge in excessive philosophical analysis. What the Court is looking to see, in terms of the dicta quoted above from Marsh v Johnston, Cook v Skinner and Weir v Jessop, is simply whether or not an unfair trick was played upon the particular accused whereby he was deceived, pressured, encouraged or induced into committing an offence which he would never otherwise have committed. That is essentially the only test. No doubt resolution will depend on the facts and circumstances of the individual case. Sentiments concerning the abuse of executive power, which have most recently found expression in R v Looseley (supra) and Brown v HM Advocate (supra), no doubt had their part to play in the devising of the test. It is clear, in that regard, from the earlier High Court authorities that the test of fairness does not simply involve examining prejudice to the accused. The Trial Judge's factors (b), (c)(no 2), (d) to (j), as he derived them, may, in given cases, each fall into play. But for the reasons explored above regarding stare decisis, factors (a) and (c)(no 1) (inherent power and duty etc., and affront to public conscience etc.), (k) compromise of judicial integrity and (l) (abuse of process) do not form part of Scots criminal law.

[89] In applying the recognised test, the first point of significance is that the crown are alleging that all five accused conspired to extort money from the owners of the painting and that this conspiracy started on 30 July 2007, before any undercover policemen became involved. The Trial Judge has found, as he was entitled to do on the evidence, that once Mr Dalrymple had contacted the police in August, the police were entitled (especially in light of the terms of the letter of 11 August) to be suspicious not only of Mr Ronald but also both those he represented (Messrs Graham and Doyle) and those acing for him at the Scottish end (Messrs Jones and Boyce). From then on, the police were entitled to take the view, rightly or wrongly, that all of the accused were involved in a plot to return the painting, but only if suitably remunerated in the sense that the painting's owners would be required to pay them a substantial sum if they ever wanted to see the painting again. The Trial Judge also found that the police acted throughout in good faith and under proper supervision of their superior officers. They had sound guidance in the form of their "Instructions", which correctly proceed on the basis of the test in Weir v Jessop (supra). They acted with the primary motive of recovering the painting and not arresting any of those involved with it. Most important, the Trial Judge concluded, again as he was entitled to do on the evidence, that what the police, and in particular Mr Craig, did was simply to go along with the terms of the contract as drawn up by Mr Ronald and Mr Jones. Mr Craig did no more, by way of inducement, than a real loss adjuster would have done, given the 10% reward ceiling found by the Trial Judge. In short, Mr Craig simply placed himself in the shoes of such a loss adjuster and provided the appellants with the opportunity of completing what they had all along intended to do, if they perceived the conditions to be favourable.

[90] Specifically in relation to Mr Jones, the Trial Judge's findings at paragraphs [138] and [141] of his Opinion seem conclusive against him both as a generality and in relation to the reset. The evidence justified the view that Mr Craig did not do any more than provide Mr Jones with the opportunity of committing the offences, including the reset. It is difficult to see how Mr Doyle's plea could ever have succeeded without him giving evidence. Even with Mr Graham, whilst the Trial Judge accepted that the Euston meeting may have encouraged him to proceed along the planned lines, his findings fall far short of holding that Mr Craig encouraged him to engage in criminality that he would not otherwise have participated in; provided of course that the conditions for it seemed advantageous. The Trial Judge's Opinion at paragraphs [127] and [128] seem conclusive against him. In respect of both appellants, these conclusions were open to the Trial Judge on the evidence adduced. In relation to his assessment of the evidence and the onus of proof, there had never been any dispute that the standard to be applied was balance of probability. There is no reason to suppose that the Trial Judge imposed any different standard. It would have been mildly astonishing if he had done so.

[91] The Trial Judge's findings that there was no "entrapment" ought therefore to stand, albeit applying the established, authoritative test of fairness. That being so, once it is accepted that the evidence, in its present form, will be admitted as fairly obtained, no issue of oppression or Article 6 fairness remains. The appeals must be refused.

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Reed Lord Carloway Lord Menzies	[2009] HCJAC 86 Appeal No: XC302/09 XC303/09 OPINION OF LORD MENZIES In Appeals under section 74 of the Criminal Procedure (Scotland) Act 1995 by CALUM JONES First Appellant; and JOHN DOYLE Second Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

First Appellant: Dean of Faculty (Keen QC), Dunn; Capital Defence Lawyers (for Stephen Grady & Co. Glasgow)

Second Appellant: Bell QC, O'Rourke; Paterson Bell (for Beltrami & Co. Glasgow)

Respondent: A Mackay AD, Maciver; The Crown Agent

30 October 2009

[92] I have had the advantage of reading in draft each of your Lordships' Opinions in this matter, and I agree that these appeals fall to be refused. I am in such close agreement with the views expressed by Lord Reed that any attempt to rehearse these would be otiose. There are however a few brief observations that I should add.

[93] I agree that entrapment falls to be categorised as a species of oppression, as that term was explained in Stuurman v HM Advocate 1980 JC 111. The term "abuse of process" is more familiar to the law of England than to Scots criminal law, although it has been considered in Scotland in the context of civil proceedings (Clarke v Fennoscandia Ltd (No3) 2005 SLT 511). The description of " a jurisdiction to prevent abuse of executive power" used by Lord Griffiths in R v Horseferry Road Magistrates Court, Ex p Bennett [1994] 1 AC 42, which Lord Hoffmann regarded in R v Looseley [2001] 1 WLR 2060 as more accurate than abuse of process, is encompassed by the Scots term oppression.

[94] With regard to the appropriate procedure by which a claim of entrapment should be made, I agree with Lord Reed that to deal with the prevention of abuse of executive power by means of objection to the admissibility of evidence is not satisfactory. As Lord Nicholls observed in Looseley (at paragraph [10]):

"The decision in R v Sang has not escaped criticism. For present purposes it is sufficient to note that the reasoning of their Lordships was directed at the question whether entrapment constitutes a substantive defence or is a cause for excluding evidence at the trial. But, as already noted, entrapment raises another and anterior issue, an issue of an altogether different dimension, quite distinct from the question of the defendant's guilt or the conduct of the trial."

When this anterior and distinct issue is raised, it is more satisfactory to consider it in the context of a plea in bar of trial, rather than in the context of an objection to admissibility of evidence.

[95] It is true that until Brown v HM Advocate 2002 SLT 809 the Scottish courts addressed this issue as a question of admissibility of evidence; however, this was because of the way in which the issue was raised and argued before the court on the relatively rare occasions on which it has been raised. I agree with Lord Carloway that the Court must keep in mind its own principle of stare decisis, but nothing in the authorities before Brown v HM Advocate amounts to authority for the proposition that oppression by entrapment must be dealt with as a question of admissibility of evidence, nor that it cannot be dealt with as a plea in bar of trial. Moreover, with the incorporation of the provisions of section 6 of the Human Rights Act 1998 and section 57(2) of the Scotland Act 1998 into our law, the Court is now faced more frequently than before with the task of considering issues such as the fairness of an impending trial. As Lord Justice-General Rodger observed in Montgomery v HM Advocate 2000 SCCR 1044, the effect of such incorporation may be to reshape areas of our common law which were previously dealt with by the plea in bar of trial known as oppression.

[96] Each of the present appellants raised the issue of entrapment under two headings, namely a plea in bar of trial and a devolution minute alleging that it was not competent for the Lord Advocate to maintain the prosecution because to do so would be incompatible with the appellants' article 6 rights. In substance, it does not appear to me that there is any difference in the exercise which the Court is carrying out. The Court is concerned with considering whether it would be fair to an accused to allow a prosecution as a whole to proceed against him, in light of alleged oppression on the part of the state, or, to use Lord Griffiths' words, an abuse of executive power. This is a different exercise from deciding whether or not a particular adminicle of evidence is admissible or not - for example, whether certain answers given by an accused at police interview were fairly or unfairly obtained. As Lord Clarke observed in Brown v HM Advocate, there is a distinction between a decision on whether or not to prevent a criminal prosecution from proceeding further (because of unacceptable abuse of state power) and a determination of the forensic fairness of admitting evidence. Despite Lord Philip's observations in Brown, it appears to me that each of these decisions must be taken in the context of considering fairness to the accused (albeit at different levels): as Lord Marnoch observed in Brown, in the former case, the unfairness lies in the fact of the prosecution itself. To prosecute a case on the basis of entrapment is oppressive, and unfair to an accused. This is properly a matter to be considered as a plea in bar of trial. But it does not follow that all questions of fairness to an accused will require a plea in bar of trial - less fundamental attacks on the fairness of the circumstances of a particular piece of potential evidence are properly made by raising an issue about the admissibility of that evidence.

[97] In the present appeals, the judge at the preliminary hearing set out clearly the facts which he found. He gave careful consideration to all the circumstances, and applied the correct tests. I agree with your Lordships that on the evidence his conclusion is one that he was entitled to reach, and that these appeals must be refused.