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APPEAL COURT, HIGH COURT OF JUSTICIARY
[2023] HCJAC 26
HCA/2021/380/XC
Lord Justice General
Lord Malcolm
Lord Pentland
OPINION OF THE COURT
delivered by LORD CARLOWAY, the LORD JUSTICE GENERAL
in
the Appeal under Section 107B of the Criminal Procedure (Scotland) Act 1995
by
HER MAJESTY'S ADVOCATE
Appellant
against
JONATHAN RICHARD PORTER
Respondent
Appellant: Prentice QC (sol adv) AD; the Crown Agent
Respondent: Mackintosh QC, J Mulgrew (sol adv); John Pryde & Co (for Fraser & Co, Livingston)
10 December 2021
[1]
The respondent was indicted to a preliminary hearing at the High Court on 30 June
2021. The fifth charge was that he had conspired "with an undercover police officer known
as officer K ... to commit sexual offences against a child".
[2]
On 25 May 2021, the appellant sought a witness anonymity order under section 271N
of the 1995 Act in respect of officer K, on the basis that she was an undercover police officer,
albeit that the request from the police did not expressly state that. The order was granted on
2
the basis that the appellant would supply the name of the officer to the court in terms of
section 271P of the Act. This was duly done and the name is kept under sealed conditions
by the court. It was provided that the witness could use the pseudonym officer K, a female
adult.
[3]
The trial took place in early October 2021. When officer K started to give evidence, it
became clear that she was not a police officer; rather, she was an undercover authorised
civilian officer. Objection was taken to the admissibility of her evidence on the basis that she
was not the person described in the charge, or on the list of witnesses. She would otherwise
have been speaking to certain chat logs involving the accused following upon an authorised
surveillance operation. The contention was that the defence had in some way been misled.
[4]
The trial judge noted that the witness was listed as a police officer. The witness who
appeared was not a police officer and was therefore not the witness in the list. This
amounted to a material irregularity. She therefore held the evidence inadmissible. The
defence had been misled and there had been no opportunity to prepare and investigate the
context in which the witness had spoken in the chat log to the appellant.
[5]
The trial judge had anticipated the Crown then moving to desert the diet pro loco et
tempore. That motion did not come. Rather, the advocate depute moved for leave to appeal
under section 107B of the 1995 Act. Since leave was granted, and the appeal was not an
expedited one, the diet was deserted in any event (1995 Act, s 107F(2)).
[6]
The Crown maintained that the witness, who had appeared in court, was the one
who was listed, albeit that the designation was incorrect. There had been no unfairness.
There was no requirement to state the designation of a witness under the 1995 Act. In any
event, that list could be amended (Brown v HM Advocate 1998 SCCR 461). Given that the
evidence of the witness had been disclosed to the defence, there had been no prejudice. In
3
the event of the appeal being allowed, the Crown sought leave to pursue a new prosecution
under section 107F(5) of the 1995 Act.
[7]
The respondent maintained that, when he had been charged, he had been referred to
as an undercover police officer. The disclosure statements from officer K bore to be from an
unidentified police constable. The indictment had given due notice of the witnesses and
productions. There had to be a proper description available to enable the defence to prepare
for trial. There had been no objection to the anonymity order because the person concerned
had been a police officer. Had the defence been made aware that the witness was not a
police officer, the nature of any cross-examination would have been different.
[8]
The witness who appeared at the trial was the person who had been granted
anonymity previously and had been entitled to use the pseudonym "officer K", whether that
witness was a police officer or otherwise. The true identity of the witness was provided to
the court and no objection to that had been taken. Errors can occur in the description of
witnesses. In this case, the description was immaterial and could have been easily cured by
amendment to the indictment, notably to charge 5. In that event, the trial could have
continued. As it is, the appellant will require leave to pursue a new prosecution. No doubt
the indictment in that prosecution will correctly describe the witness in the charge and in the
witness list. The appeal is allowed on that basis.
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