Calum Jones+john Doyle V. Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Menzies,Lord Reed,Lord Carloway |
| Judgment Date | 30 October 2009 |
| Neutral Citation | [2009] HCJAC 86 |
| Court | High Court of Justiciary |
| Published date | 21 May 2010 |
| Docket Number | XC302/09 |
| Date | 30 October 2009 |
| 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...
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