Scottish Sheriff Court Decisions

SHERIFF COURT OF TAYSIDE, CENTRAL AND FIFE AT DUNDEE

 

NOTE BY SHERIFF ALASTAIR N BROWN

in causa

PROCURATOR FISCAL, DUNDEE

against

JR

and

SAR

 

 

 

Act: Gilmartin

Alt: Mitchell for JR

Laverty for SAR

Dundee, 12 September 2013

1. On 23 August 2013, this summary complaint called before me for an intermediate diet and consideration of an application by the prosecutor for a witness anonymity order. Two other cases have been proceeding in parallel with this one and the complaints in those cases also called on 23 August, for the same purpose. The parties treated the present case as the lead case and presented argument under reference to this case in particular. I reserved judgment and continued the intermediate diets. I have decided to refuse the applications in all three cases. This Note sets out the reasons for my decision and it will be issued in advance of the continued intermediate diets so that parties may consider their responses. I have prepared much shorter notes in relation to the other two cases.

 

2. Each case has a protracted history, much of which has been concerned with arguments about disclosure. In the present case, an application for a witness anonymity order was made in December 2012 but, after two continuations, the existence of that application seems to have been overlooked and no order was made. The procurator fiscal moved the application of new before me. As framed, the application was made in relation to two witnesses, named on the Crown witness list as "Matty Roberts" and "Amanda McCann", who are said to be undercover police officers.

 

3. I directed in terms of s271P(2)(a) of the Criminal Procedure (Scotland) Act 1995 that the prosecutor need not inform the court of the identities of the witnesses.

 

4. Witness anonymity orders are provided for by s271N of the Criminal Procedure (Scotland) Act 1995, which, so far as material, provides as follows:

"(1) A court may make an order requiring such specified measures to be taken in relation to a witness in criminal proceedings as the court considers appropriate to ensure that the identity of the witness is not disclosed in or in connection with the proceedings.

(2) The court may make such an order only on an application made in accordance with sections 271P and 271Q if satisfied of the conditions set out in section 271R having considered the matters set out in section 271S.

(3) The kinds of measures that may be required to be taken in relation to a witness include in particular measures for securing one or more of the matters mentioned in subsection (4).

(4) Those matters are-

(a) that the witness's name and other identifying details may be-

(i) withheld,

(ii) removed from materials disclosed to any party to the proceedings,

(b) that the witness may use a pseudonym,

(c) that the witness is not asked questions of any specified description that might lead to the identification of the witness,

(d) that the witness is screened to any specified extent,

(e) that the witness's voice is subjected to modulation to any specified extent".

 

The conditions for making orders are set out in s271R(2) - (7) as follows:

"(2) The court may make the order only if it is satisfied that Conditions A to D below are met.

(3) Condition A is that the proposed order is necessary-

(a) in order to protect the safety of the witness or another person or to prevent any serious damage to property, or

(b) in order to prevent real harm to the public interest (whether affecting the carrying on of any activities in the public interest or the safety of a person involved in carrying on such activities or otherwise).

(4) Condition B is that, having regard to all the circumstances, the effect of the proposed order would be consistent with the accused's receiving a fair trial.

(5) Condition C is that the importance of the witness's testimony is such that in the interests of justice the witness ought to testify.

(6) Condition D is that-

(a) the witness would not testify if the proposed order were not made, or

(b) there would be real harm to the public interest if the witness were to testify without the proposed order being made.

(7) In determining whether the measures to be specified in the order are necessary for the purpose mentioned in subsection (3)(a), the court must have regard in particular to any reasonable fear on the part of the witness-

(a) that the witness or another person would suffer death or injury, or

(b) that there would be serious damage to property,

if the witness were to be identified".

 

So far as material, s271S provides:

"(1) When deciding whether Conditions A to D in section 271Rare met in the case of an application for a witness anonymity order, the court must have regard to-

(a) the considerations mentioned in subsection (2), and

(b) such other matters as the court considers relevant.

(2) The considerations are-

(a) the general right of an accused in criminal proceedings to know the identity of a witness in the proceedings...".

The parties were agreed that no other part of subsection (2) was relevant.

 

 

5. Counsel for the first accused having intimated that she would confine her submissions in relation to s271R to conditions A and D, the procurator fiscal addressed me principally in relation to those two conditions. She made brief submissions to the effect that conditions B and C were met. That was not disputed and I need not narrate those submissions here.

 

6. The procurator fiscal began her submissions in relation to condition A by maintaining that both alternatives were met, though in discussion of that submission she came to the view that she was unable to set out any facts on the basis of which it might be said that there is a particular risk to the safety of these witnesses in this case and she restricted her submissions to paragraph (b), the second alternative. She called attention to the fact that the charge is a contravention of s4(3)(b) of the Misuse of Drugs Act 1971. She submitted that drug trafficking is a serious offence. The offence alleged against the present accused involved the sale of diamorphine worth £20. It was detected in the course of a more general operation. I was shown an authorisation in terms of s7 of the Regulation of Investigatory Powers (Scotland) Act 2000, which related to that operation. She said that the two officers are undercover officers who do not always deal with criminality at the lower end of the scale, though she had no information about what the officers are doing currently. There is a cost to training such officers. The order is necessary to protect operational effectiveness. If the order is not made, the officers will have to be removed from undercover work. There is a risk to their families and colleagues. She submitted that, where undercover officers are used, there is always a risk because of the nature of the activity.

 

7. In addressing condition D, the procurator fiscal confirmed that the officers would testify if the order was not granted but submitted that there would be real harm to the public interest because they would have to be removed from undercover work.

 

8. The procurator fiscal referred briefly to s271S and submitted that the officers would be giving evidence about what they saw and heard. She said that they would be available for precognition. She submitted that their credibility would fall to be assessed in what she described as "the usual way".

 

9. Counsel for the first accused submitted that it is not enough to say that undercover officers are per se important for the detection of crime. She submitted that each case must be considered individually. In terms of the material disclosed, these officers were tasked with attending in the Charleston area of Dundee and attempting to purchase controlled drugs. They had bought two bags worth £20. Counsel submitted that, whilst drug dealing as a generality is serious, this was at the lower end of the scale. She submitted that, in testing the public interest, it was necessary to take into consideration the way in which the officers were actually used. She pointed out that the dealing at issue in the present case was at the lowest level and that it was not said by the Crown that these accused persons were involved with an organised gang at high level. She submitted that the Crown had presented a generic argument which could be said to apply to every case. In the present case, the accused had seen the witnesses and knew what they looked like. A witness anonymity order is a departure from the general rule and must, she submitted, take cognisance of what s271R(3) refers to as "real harm". She submitted that the Crown argument about the safety of undercover officers involved a generalisation and that it could apply to every case in which officers who were undercover officers were used. She submitted that witness anonymity orders fall to be granted in relation to high level dealing. She submitted that s271R(7) requires the Crown to show that that the witnesses had a reasonable fear of death or injury and that the Crown had not done so. She submitted that the Crown argument as to condition D simply reiterated that made in relation to condition D. She called attention to the fact that the Explanatory Notes issued by the Scottish Government state that the application should bring out "evidence of/grounds for believing that a threat exists".

 

10. The agent for the second accused adopted the submissions made by counsel and added nothing to them.

 

11. In providing that the court "may" make a witness anonymity order, s271N confers a discretion and indicates a three-stage process. In the first stage, I must decide whether the circumstances entitle me to exercise the discretion. In applications for witness anonymity orders, that decision is governed by s271R. In the second stage, having decided that the circumstances do entitle me to exercise the discretion, I must decide whether I should exercise the discretion in favour of making the order sought. In that stage, a wider range of considerations may become relevant. (It might be that this is what the Act contemplates when it provides, in s271S(1), that I must have regard not only to the considerations set out in subsection (2) of that section but also to "such other matters as the court considers relevant"). In the third stage, having decided that I can and should make an order, I must decide what measures it is appropriate to specify in the order which is to be made. In some cases, of course, (perhaps in most cases) the nature of the possible measures will inform the judgment to be made in the second stage. The second and third stages are, therefore, not likely in practice to be as distinct as is contemplated in the foregoing analytical framework.

 

12. As to the first stage, in terms of s271R(2), a witness anonymity order may be made only if the court is satisfied that conditions A to D in that section are met. In this case, it being a matter of concession that conditions B and C are met, I need only address conditions A and D.

 

13. Condition A is set out in subsection (3) and it is in the alternative. The procurator fiscal came to rely only on the second alternative - that is, that the order is necessary in order to prevent real harm to the public interest. In subsection (3)(b), the phrase "public interest" is explained in brackets in terms which make it clear that it is intended to be wide in its scope. I have no difficulty in accepting that the investigation of crime in general, and of drug dealing in particular, is an activity which engages the public interest.

 

14. The procurator fiscal explained that the harm apprehended is that if the identities of these officers are not protected by a witness anonymity order they will have to be withdrawn from undercover work and the expensive resource which they represent will be lost.

 

15. There is, in law, no such thing as an undercover police officer. There is such a thing as a covert human intelligence source, defined in s1(7) of the Regulation of Investigatory Powers (Scotland) Act 2000 ("the 2000 Act"). Although, so far as the information put before me goes, the evidence which the officers in the present case would give does not relate to that kind of covert activity, it is clear that the background to the case does involve that kind of activity, or at least the potential for that kind of activity to be carried out by these officers. The procurator fiscal told me that if these officers give evidence without a witness anonymity order they will be withdrawn from work of that sort. I accept that to be an accurate statement of the intention of the Police Service. I am satisfied that the loss of that resource would be real harm to the public interest.

 

16. Ultimately, it is never necessary for a witness anonymity order to be made in order to avoid the kind of harm apprehended by the Crown in this case. There is always an alternative. The Crown can choose not to prosecute or not to continue to prosecute. In my opinion, for the word "necessary" in s271R(3) to have meaning, it must be assumed that the prosecution will continue. I make that assumption. On that assumption, I can see no way, other than by a witness anonymity order, of avoiding the harm which is apprehended.

 

17. I am accordingly satisfied that condition A is met.

 

18. Condition D is set out in subsection (6) and it is also in the alternative. The procurator fiscal relied on the second alternative, which is that there would be real harm to the public interest if the witness were to testify without the proposed order being made. In the context of this case, I find difficulty in distinguishing this condition from the second alternative in condition A and it appeared from their submissions that the parties also experienced that difficulty. In my opinion, however, the foregoing reasoning about the risk of harm to the public interest as it relates to condition A applies with equal force to condition D. I am satisfied that condition D is met.

 

19. I am therefore satisfied that conditions A to D are met and that this is a case in which I do have the discretion to make a witness anonymity order. I turn to the second stage and consider whether I should make an order.

 

20. There is, as s271S(2) recognises, a general right in terms of which accused persons are entitled to know the identities of witnesses. In my opinion, that right is important. In Van Mechelen v The Netherlands (1998) 25 EHRR 647 the European Court of Human Rights, whilst recognising that, in principle, provided that the rights of the defence are respected, it may be legitimate for the police authorities to wish to preserve the anonymity of an agent deployed in undercover activities, for his own or his family's protection and so as not to impair his usefulness for future operations, observed that:

"In the Court's opinion, the balancing of the interests of the defence against arguments in favour of maintaining the anonymity of witnesses raises special problems if the witnesses in question are members of the police force of the State. Although their interests - and indeed those of their families - also deserve protection under the Convention, it must be recognised that their position is to some extent different from that of a disinterested witness or a victim. They owe a general duty of obedience to the State's executive authorities and usually have links with the prosecution; for these reasons alone their use as anonymous witnesses should be resorted to only in exceptional circumstances" (para 56, emphasis added).

 

That Court did not regard the operational needs of the police as a sufficient basis in themselves for anonymity and went on to say that it was not

"persuaded that the Court of Appeal made sufficient effort to assess the threat of reprisals against the police officers or their families. It does not appear from that court's judgment that it sought to address the question whether the applicants would have been in a position to carry out any such threats or to incite others to do so on their behalf. Its decision was based exclusively on the seriousness of the crimes committed" (para 61).

21. In my opinion, it is not enough for the Crown to assert that there is a need to protect the identities of the witnesses. Information must be provided which enables the court to form its own opinion that there is an actual risk in the particular case. There must be a basis for characterising the circumstances as exceptional. These hurdles might be overcome without particular difficulty in a case which involves a charge of serious criminality and which involves evidence about actual covert human intelligence activity. This is not a serious case. It is a summary complaint concerning a street level sale of two £10 bags of heroin. The only thing that moves that from the very lowest end of s4(3)(b) of the Misuse of Drugs Act 1971 is the fact that the drug is Class A. Nor is it a case in which covert human intelligence activity is at issue. So far as I have been told, it is only about 2 police officers making a test purchase. The fact that the officers are usually deployed in a covert capacity does not place them in a special category.

 

22. The application has not been supported in a way which persuades me that I should exercise my discretion in favour of making the order and I refuse to do so.

 

23. I grant leave to appeal, ex proprio motu, in terms of s271V(2)(b).