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You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> Connor v. Her Majesty's Advocate [2002] ScotHC 26 (13 March 2002) URL: http://www.bailii.org/scot/cases/ScotHC/2002/26.html Cite as: [2002] ScotHC 26

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Connor v. Her Majesty's Advocate [2002] ScotHC 26 (13 March 2002)

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Cameron of Lochbroom Lord Kingarth Lord Carloway	Appeal No: 488/00 OPINION OF THE COURT delivered by LORD CAMERON OF LOCHBROOM in NOTE OF APPEAL by NEIL PATRICK CONNOR Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

 

 

Appellant: N.R.McKenzie; John Carroll & Co.

Respondent: Armstrong, Q.C., A.D.; Crown Agent

13 March 2002

1. The appellant went to trial in the sheriff court at Glasgow on an indictment libelling a contravention of section 4(3)(b) of the Misuse of Drugs Act 1971. The present appeal relates to an objection taken for the appellant in the course of the trial to the admissibility of evidence.
2. The charge libelled that between 1 January 1998 and 24 March 1998 at the house occupied by the appellant at Flat 1/2, 3 Inverurie Street, Glasgow the appellant had been concerned in the supplying of diamorphine. Shortly after the first witness, a police officer, Constable Quigley, entered the witness box, the solicitor for the appellant took an objection to the admissibility of evidence to be given by the witness. The sheriff held that the objection should have been raised as a devolution issue. There being no objection for the Crown, a devolution minute was then lodged on behalf of the appellant. Put shortly, the minute alleged that the evidence upon which the Crown intended to found the case against the appellant had been obtained and secured in violation of the appellant's rights under Article 8(1) of the European Convention on Human Rights. It was said that "police officers had subjected the (appellant) and his home at 3 Inverurie Street, Glasgow to systematic surveillance in pursuit of evidence in support of the charge that is libelled in the indictment. In consequence of said systematic surveillance and information obtained thereby police officers sought and were granted a warrant to enter and search the home of the (appellant) in pursuit of further evidence in the case." It was further said that "the actions of the procurator fiscal in this prosecution are the actions of the Lord Advocate for the purposes of the Scotland Act 1998. Leading or seeking to lead evidence obtained in violation of the (Convention) is an act incompatible with the Convention and would deny the (appellant) of his right to a fair trial in terms of Article 6 of the Convention".
3. In the debate that followed upon the admission of the devolution minute, certain factual material was placed before the court and it was upon that factual material that submissions for the appellant and for the Crown were founded. In the grounds of appeal reference is made to evidence that was led following the rejection of the devolution minute in which it appears that that factual material was not in certain particulars consistent with the evidence that was given at the trial. This factor had given rise to further motions to the court that, both in the course of and at the conclusion of the Crown case, the sheriff should reconsider his earlier decision to repel the objection to the admissibility of the evidence. The first motion was that since the evidence departed from the factual material upon which the debate took place, the sheriff should hold a trial within a trial for the determination of the facts The second motion was that the evidence for the Crown having been fully heard, the sheriff should reconsider his earlier decision taking into account the different set of facts. These matters form grounds of appeal 3, 4 and 5. However before us, counsel accepted that the variation between the factual material upon which the original debate on the devolution minute proceeded and the subsequent evidence was not of any consequence and did not affect the only ground to which his submissions were directed, namely, ground 1. For completeness, we add that no argument was presented before us on behalf of the appellant in support of any other of the remaining grounds of appeal, grounds 2, 6, 8 and 9. The essence of ground 1 is that the sheriff misdirected himself in law in dismissing the devolution issue minute and holding that the appellant's rights under Article 8(1) of the Convention had not been breached.
4. Before proceeding to consider the submissions made to us in relation to ground 1, it is appropriate to take account of the factual material upon which the debate before the sheriff proceeded. We take this from the sheriff's report. When the initial objection was taken to Constable Quigley's evidence, the officer had just given evidence that he had received certain information which led him to take certain steps in response to it. It was then that objection to the line of evidence was taken. It was said that the officer had thereafter mounted a surveillance operation on the common close at 3 Inverurie Street, the block of flats in which the appellant lived. This surveillance operation had lasted seven and a half hours. During those seven and a half hours, some 30 persons had attended at the common close, mostly on foot though some had come by taxi. The officer was of opinion that these people had the general appearance and demeanour of drug users. Two males had been detained by other officers and information allegedly obtained from one of them. The officer had then gone before the sheriff on 23 March 1998 and obtained a warrant on the basis of his observations and information. In pursuance of the warrant the appellant's home had been entered and drugs and other evidence of an incriminating nature had been found. This information was to some extent supplemented by counsel who appeared to conduct the debate on the devolution minute for the appellant. The sheriff sets out that counsel had referred to the circumstances as he understood them, namely that on the basis of information not further specified, the police officer had set about the systematic surveillance of the appellant's dwelling house. His observations had continued for seven and a half hours, a full working day. He had gone there deliberately, not coincidentally, but acting as a police officer to carry out surveillance. In addition to observing the appellant's home, police officers had stopped persons coming from the home and questioned them about why they had been at the appellant's home. Counsel's submission was that what took place was "spying on the appellant at his home" and that this was clearly a contravention of Article 8(1) of the Convention.
5. We would add that the sheriff tells us that the variation between the factual material referred to in the debate on the devolution minute and the evidence as actually led was not considered by him to be material. He related that there were two departures from the agreed factual material. It transpired that "the covert observation point" from which police officers had made their observations was not a motor car vehicle but council premises of some sort. Although before the sheriff counsel for the appellant had maintained that some persons had been detained in terms of section 14 of the Criminal Procedure (Scotland) Act 1995, in fact two persons who had left the close together had been detained in terms of section 23 of the Misuse of Drugs Act 1971 with controlled drugs being found on one of them. As we have already indicated, these variations were not considered by parties to be of moment for the purposes of the submissions made to us. When the issue was raised again with the sheriff at the conclusion of the evidence, the sheriff tells us that there was no evidence and no suggestion that the officers detaining the two persons had acted in bad faith or had not been entitled to exercise the powers which they exercised under the Misuse of Drugs Act. The information was that one of the persons detained had possessed controlled drugs. The sheriff goes on to say that it may be that Constable Quigley could have sought a search warrant on the basis of the information that he had received earlier but it appeared to the sheriff that his decision initially to confirm that information merely by taking up observations on the block of flats in which the appellant lived, rather than obtaining a warrant entitling him to break into and search the appellant's home, was not an unreasonable one for him to take and which could be said to have operated just as much for the appellant's protection as anything else.
6. Mr. Mackenzie for the appellant submitted that the sheriff had erred in holding that, in the circumstances, there had been no interference with the appellant's rights contrary to Article 8(1) of the Convention and thus in holding that the Lord Advocate had power to act in prosecuting the appellant in reliance on evidence obtained as a consequence of a breach of those rights. He made clear that his submissions went only so far as to support the contention made ( or at least apparently made) in the devolution minute that for the Lord Advocate to lead or seek to lead evidence obtained in violation of the Convention, and in particular with the appellant's rights under Article 8(1), would be for him to act in a manner incompatible with those Convention rights. To act so would thus be to do acts which the Lord Advocate had no power to do under and in terms of section 57(2) of the Scotland Act 1998. Mr. McKenzie stated that he did not seek to go further and contend that to do so would deny the appellant of his right to a fair trial in terms of Article 6 of the Convention. The surveillance operation had revealed certain material upon which a warrant had been granted. Upon that warrant being executed, a search of the appellant's home had taken place with the discovery there of incriminating material in relation to which the appellant had made certain incriminating admissions. Mr. Mackenzie accepted that he could not suggest that the grant of the warrant itself was not lawful. Nevertheless he contended that since everything flowed from the surveillance operation itself, the Lord Advocate was barred from leading evidence or acting upon evidence obtained in the course of or as a result of the surveillance operation. He conceded that on the authority of Montgomery v. Coulter and Brown v. Stott, an issue of proportionality arose as to whether the leading of evidence obtained in breach of Article 8 rights could deny an accused a fair trial since the accused could cross examine at length and lead evidence on his own account and argue the point of a breach of Article 6 in a full and fair manner. Nevertheless if the proposition were sound that there had been a breach of Article 8(1) by reason of the actings of the police in mounting the surveillance operation and obtaining evidence thereby, which actings could not be excused by reference to Article 8(2), then a devolution issue arose immediately the procurator fiscal acted upon that information and thereafter the Lord Advocate, in prosecuting the appellant by reference to that information and the material by way of evidence derived from it, acted unlawfully. As to the factual material, Mr Mackenzie accepted that the appellant's home was within a building entered by a common close and that there was no suggestion that the police officers could see into the appellant's flat nor that there had been any interference with the Convention right to respect to the appellant's family life or his correspondence. However what had happened in the present case had been something beyond mere observation and consideration of the purpose for which it was undertaken was important. The operation undertaken had included observation of the public street and the door forming the entrance from the public street to the common close of the building in which the appellant's flat was situated. There had been monitoring of the identity of persons entering and leaving the common close. A record had been kept of the observations made during the operation. Use had been made of that monitoring activity in relation to such persons. This was akin to interference by way of telephone tapping. It interfered with the right to respect for the appellant's private life by monitoring any visitors to his home. There was no protection by way of regulation or judicial control against such surveillance which also extended to stopping and searching individuals leaving the building. Reference was made to a number of European Human Rights Court or Commission decisions relating to such interference, including Malone v. United Kingdom (1984) 7 EHRR 14, Halford v. United Kingdom (1997) 24 EHRR 523. Reference was also made to Schenk v. Switzerland (1991) 13 EHRR 242 : Kopp v. Switzerland (1998) 27 EHHR 91 : A v. France (1993) 17 EHRR 472 : Friedl v. Austria (1996) 21 EHRR 83: Niemetz v. Germany (1992) 16 EHRR 97 and Klass v. Germany (1978) 2 EHRR 214. In the whole circumstances the sheriff had misinterpreted the effect of the factual material placed before him.
7. For the Crown, the advocate depute began by reminding us of the provisions of section 17(1)(a) of the Police (Scotland) Act 1967. The police were under a duty to investigate any report of the commission of crime and not least to "watch" in the performance of that duty and to prevent the commission of offences. Where surveillance was likely to breach Article 8(1) rights, these matters were now regulated by the provisions of the Regulation of Investigatory Powers (Scotland) Act 2000. But in the present case all that could be said of the surveillance operation was that it involved observation of the public street outside the building in which appellant's flat was one of a number of flats and of the exterior of the door to the common close. That did not involve any interference with the appellant's rights under Article 8(1). There was no information directly gleaned from the appellant either by way of interference with his telephone or otherwise. There was no suggestion of police officers, either directly or indirectly by use of instruments or other equipment, looking into his flat, piercing, as it were, the integrity of his private space and observing what went on inside it. Nor could observation of persons entering and leaving the door to the common close be said to be an invasion of privacy so far as the appellant himself was concerned. The officer had undertaken observation as he did to determine whether the information on which he acted could be confirmed or enhanced so as to justify an application for a search warrant. He had come to the conclusion that he could make such an application by reference to his observation of the frequency of visitors to the building and what appeared to be visitors of a particular type. Thus the use of the information obtained was originally directed to the obtaining of the search warrant. No criticism was directed to the validity of the warrant. The fact that individuals were stopped by other police officers acting under appropriate statutory powers and that these individuals thereafter gave information relating to the appellant's activities, did not constitute an invasion of the appellant's rights since such information did not emanate from any area of the appellant's private life. The only relevant authority was that of the case of Friedl and that decision far from supporting, rather contradicted the appellant's contentions.
8. We reject the submissions for the appellant. No direct criticism was made of the reasoning of the sheriff by Mr. Mackenzie. The sheriff observed that the European Court decisions cited to him involved substantially more by way of surveillance than was involved in this case. He expressed the view that the procedures involved in speaking to persons leaving the close involved third parties and in his view did not assist the appellant's arguments. Accordingly he accepted the submission for the Crown that what had happened in this case could not be described as a breach of the appellant's right to respect for his private and family life and home in terms of Article 8(1). We agree with the sheriff. The cases cited by Mr. Mackenzie apart from Friedl appear to us to be far removed in their facts from the present case. The cases of Malone, A. v France, Halford and Kopp involved interference by way of interception of telephone calls made to or by the complainers. Schenk was a decision in relation to Article 6 of the Convention. We note, however, that the European Court proceeded on the basis that while Article 6 guarantees the right to a fair trial, it did not lay down any rules on the admissibility of evidence as such, which is primarily a matter for regulation under national law. The Court was careful to explain that it could not exclude as a matter of principle and in the abstract that unlawfully obtained evidence of the kind before it (a recording of a telephone conversation) may be admissible. Niemetz was concerned with the purpose for which a search warrant directed to the identity and activities of a third party was issued. It was claimed that the consequent search impaired the goodwill of the complainer's law office and his reputation as a lawyer. In the present case the search warrant is not directly impugned and, in any event, no criticism is made of its execution. In Friedl there was direct observation by the police of the activities in which the complainer was participating in public, being a 'sit-in' as part of a political demonstration. Photographs were taken of those activities for the purpose, amongst others, of determining whether any criminal offence was being committed. The Commission took the view that police photography of the applicant's participation in the 'sit-in' did not violate Article 8. In the circumstances of the present case, having regard to the factual material placed before the sheriff, there was, in our opinion, (using the phraseology of the Commission in Friedl) no intrusion into the "inner circle" of the appellant's private life and no violation of Article 8.
9. For the above reasons the appellant has not made out the only ground upon which this appeal was argued and the appeal must be refused.
10. We would add that even if we had been persuaded that the sheriff was in error in reaching the conclusion that he did, the appellant would still have required to persuade us that section 57(2) of the Scotland Act 1998 absolutely barred the Crown from seeking to lead evidence obtained in breach of the appellant's rights under Article 8(1). This contention was not fully developed in argument before us. Before the sheriff it appeared that the emphasis of the submissions for the appellant was directed to a somewhat different question concerning the admissibility of the evidence and a potential incompatability with Article 6. The sheriff did indicate a view that if evidence was obtained in breach of Article 8 and the breach was minor, and not an obstacle to an accused's right to receive a fair trial, it did not appear to him that the provisions of section 57(2) of the Scotland Act disabled the Crown from leading the evidence. Before us this view was not the subject of specific criticism on behalf of the appellant. Equally, although the advocate depute did not accept the appellant's general assertion in relation to absolute bar, his position on the matter was not further developed. In these circumstances we say no more about the issue other than to say that we are not to be taken as accepting the general proposition advanced for the appellant.