Her Majesty's Advocate V. Lee Everton Higgins &c
| Jurisdiction | Scotland |
| Judge | Lord Macphail |
| Neutral Citation | [2006] HCJ05 |
| Court | High Court of Justiciary |
| Date | 17 May 2006 |
| Published date | 17 May 2006 |
| HIGH COURT OF JUSTICIARY [2006] HCJ05 | |
| OPINION OF LORD MACPHAIL in the cause HER MAJESTY'S ADVOCATE ; against LEE EVERTON HIGGINS DAVID GEORGE HENRY SCOTT ADAM MURPHY : |
The Crown: Hammond, A.-D., Bruce Lockhart; Crown Agent
First accused: Richards, Q.C., Borthwick; George Mathers & Co., Aberdeen
Second accused: Reilly, Latif; Gavin Bain & Co., Aberdeen
Third accused: Moggach, Rao; Gray & Kellas, Aberdeen
17 May 2006
1. Introduction
[1] The accused were tried in the High Court at Aberdeen on an indictment which included a charge of armed robbery. The trial began on 21 March 2006. On 5 April 2006 counsel for the first and second accused stated objections to the admissibility of evidence which the Crown intended to elicit from police officers about the contents of conversations between the first and second accused which the officers had overheard after being posted to listen outside the adjacent police cells in which the accused had been placed after being arrested but before being charged. Counsel for the first and second accused also lodged devolution minutes relative to the attempt to elicit that evidence and to the alleged non-disclosure to the defence of the fact that the officers had been instructed to listen to the conversations. On 11 April 2006, after a trial within a trial, I sustained the objections to the admissibility of the evidence. I stated that I would issue a written opinion later.
2. The facts
[2] The three accused were charged that, inter alia:
"(3) On 27 July 2005 at the Bank of Scotland, 10 Greenwell Road, Aberdeen, you Lee Everton Higgins, David George Henry Scott and Adam Murphy did, while acting with others and with faces masked, assault George Andrew Hutcheson, Graham Charles Mitchell and John Lewis Baker, all c/o Brinks UK Limited, 4 Chanonry Road South, Elgin, force open a lockfast door there, brandish knives at them, place a knife at the throat of said John Lewis Baker, strike him on the hand and leg with said knife to his injury, force him to walk to a security van parked at said Bank, repeatedly demand money, compel said George Andrew Hutcheson to hand over to you bags containing money and you did rob said Graham Charles Mitchell, John Lewis Baker and George Andrew Hutcheson of £187,500.00 of money."
[3] The material facts relative to the admissibility of the evidence were not in dispute. At or about 9.30 p.m. on Wednesday 27 July 2005 the three complainers, who were security guards, arrived at the bank in a security van with the intention of delivering bags containing banknotes. Two of the guards unlocked the door and entered the bank. The door automatically locked behind them. Thereafter two or three males suddenly appeared outside, wearing dark clothing and with their faces masked. One of them kicked the door open with his booted foot and forced one of the guards to go out to the security van, holding a knife to his neck. The third guard, who had remained in the van, passed out bags of money which the assailants loaded into a Renault Laguna car. The assailants had Liverpool accents. The car then made off with the men and the money inside.
[4] At about 5.30 a.m. on the following morning, Thursday 28 July 2006, police officers went to a flat at 15 Boyd Orr Close, Aberdeen, where they found and detained the first and second accused. It appears that the police believed that these accused were associated with a second car which had been used in some way to facilitate the execution of the robbery after the events at the bank. I express the matter tentatively because the state of the Crown evidence was such that all the accused were ultimately acquitted when I sustained submissions of no case to answer. It was not possible to discern clearly from the evidence led what the Crown case was as to what had occurred after the events at the bank, and in particular as to the role played by the second car and by each of the accused. In any event, after the first and second accused were detained at the flat they were taken to Police Headquarters in Aberdeen and interviewed. The first accused told the police at interview that he had in the flat at 15 Boyd Orr Close some £5,000 in banknotes. He gave them accurate information about exactly where that money was, and he also gave them an explanation for his possession of it which did not implicate him in the crime. Neither accused said anything incriminating at interview.
[5] Before their interviews, the two accused had been in cells on different floors of the cell block in Police Headquarters. The cell block has three floors. The first accused had been in cell no. 11 on the middle floor, and the second accused had been in cell no. 24 on the upper floor. At or about 11.00 a.m. on the morning of 28 July a detective officer approached the custody sergeant in charge of the cell block, Sergeant Reynolds, with a request that the first accused should be moved to a cell on the upper floor adjacent to that of the second accused. The sergeant asked the reason for the request, and the officer advised him that it was intended that listeners should be posted outside the cells in the cell passageway. The sergeant considered that to be peculiar, and he asked the officer to confirm the situation with the senior investigating officer (the SIO), who was at that stage of the inquiry Detective Inspector (now Chief Inspector) Mark Cooper. One of his duties was to oversee the propriety of the investigation. Thereafter Detective Sergeant Philip Chapman, who was supporting the SIO in the inquiry with regard to interviewing tactics and procedure and was acting on DI Cooper's behalf, advised Sergeant Reynolds that it was indeed intended that listeners should be posted. Sergeant Reynolds expressed the opinion that that would be bordering on covert surveillance, but DS Chapman disagreed and told Sergeant Reynolds that he wanted the two accused on the same level in close proximity to each other. Accordingly, at 11.29 a.m., after the first accused had been interviewed and arrested but not charged, he was taken up to cell no. 23 on the top floor in accordance with DI Cooper's instruction. Cell no. 23 was next to cell no. 24 which was occupied by the second accused. He also had been interviewed and arrested but not charged. The placing of the first accused in cell no. 23 was done deliberately to facilitate conversation between the two accused and the hearing and noting of any conversation by the listening officers. There were no other prisoners on the top floor.
[6] It had been DS Chapman's idea to place the two accused in adjacent cells and post listeners to overhear any conversation between them. He suggested this plan to DI Cooper, who had agreed. DI Cooper had never done such a thing before, and there was no protocol or policy in Grampian Police governing any such procedure. The reason the Detective Inspector gave in evidence for adopting the procedure was that it would provide an opportunity for him to gain information from the two suspects about others who might have been involved in the commission of the crime, and about the whereabouts of the stolen money. He had also understood that weapons might have been involved in the commission of the crime. He agreed in cross-examination that if the two suspects were to incriminate themselves, that would be so much the better. DS Chapman stated that he had made the suggestion to post listeners because of the amount of money stolen and the fact that only two persons were in custody. He also said that he did not know that the first accused had said in his interview that he had £5,000 in banknotes in the flat at 15 Boyd Orr Close.
[7] I now make two findings in fact about the decision to place the accused in adjacent cells and post listeners. The first relates to the Regulation of Investigatory Powers (Scotland) Act 2000 (RIPSA) and the code of practice entitled Covert Surveillance: Code of Practice which I shall discuss later. It is unfortunate that at the trial-within-a-trial neither Chief Inspector Cooper nor any of the other officers was asked whether they had given any thought to RIPSA or the Code of Practice. The Advocate Depute did not provide any explanation or justification of the failure to observe the requirements of the Act and the Code. I must therefore find that they were disregarded for reasons which remain obscure.
[8] Secondly, as to the reasons for the decision to place the accused in adjacent cells and post listeners, I find it to be probable that the reasons were (1) that the accused might incriminate themselves and (2) that they would provide further information about the identities of those involved in the commission of the crime and about the whereabouts of the money. I do not accept that the officers regarded the utterance by the accused of self-incriminating statements as a bonus that might be added to information about the culprits and the money. Both accused had been unhelpful to the police at interview, and the reasons the police had for linking them with the crime appear to have been few. It is probable that the hope that these two unco-operative accused would strengthen the case against themselves by making self‑incriminating statements was at least as strong as the hope that they would provide information about the identity of their supposed accomplices and the whereabouts of the money.
[9] I now resume the narrative of the events of Thursday 28 July 2006. The decision to post listeners having been taken, DS Chapman instructed another officer, DS Coutts, to go to the cell block with another officer and to take up positions outside cells nos. 23 and 24, remain concealed and quiet, and listen to what was being said. DS Coutts took DC Clark with him. They listened outside the cells from 12.45 p.m. to 12.57 p.m. and again from 2.08 p.m. to 2.50 p.m. The two accused did not know the officers were there. There was a notice warning the occupants of the cells that CCTV was...
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