McGibbon v HM Advocate
| Jurisdiction | Scotland |
| Judgment Date | 19 February 2004 |
| Date | 19 February 2004 |
| Docket Number | No 6 |
| Court | High Court of Justiciary |
JC
Lord Justice-Clerk (Gill), Lord Johnston and Lord Wheatley
Justiciary - Evidence - Admissibility - Undercover police operation - Covert video and audio recordings in breach of right to privacy - Whether breach by police or Lord Advocate - Whether Lord Advocate entitled to lead recording evidence - Whether leading of evidence in breach of right to privacy infringes right to a fair trial - European Convention of Human Rights and Fundamental Freedoms, Art 8(1), (6) - Scotland Act 1998 (cap 46), sec 57(2)
Article 8(1) of the European Convention on Human Rights provides "Everyone has the right to respect for his private and family life, his home and his correspondence". Section 57(2) of the Scotland Act 1988 provides that "a member of the Scottish Executive has no power [to do any act], so far as [the act] is incompatible with any of the Convention rights." Article 6 of the Human Rights Act 1998 (cap 42) provides for the right to a fair trial
The appellants and others appeared on petition in Edinburgh Sheriff Court on various charges of being concerned in the supply of a controlled drug. The indictment resulted from an undercover police operation. The evidence against the appellants included a series of covert video and audio recordings of incriminating conversations. The appellants objected to a substantial amount of evidence that the Crown proposed to lead and the sheriff held a trial within a trial. The Crown conceded that there had been a breach of Art 8 in respect of the making of covert video and audio recordings. The sheriff decided that notwithstanding a breach of Art 8 the question remained whether there could be a fair trial. The evidence was admitted. The appellants appealed to the High Court of Justiciary against their subsequent convictions. The appellants argued at appeal that the leading of evidence of the covert recordings was an act of the Lord Advocate within the scope of sec 57(2) of the Scotland Act 1988. That act was incompatible with the appellants' rights under Art 8, therefore the Lord Advocate was prohibited from leading that evidence. The issue of a fair trial under Art 6 did not arise. The Crown argued that the Lord Advocate was not disabled by sec 57(2) from leading that evidence because the admitted breach was not an act for which the Lord Advocate was responsible. Furthermore a breach of Art 8 only became relevant if it led to a breach of Art 6 and that was a matter to be determined by a trial within a trial. It was agreed that a further appeal point on the issue of entrapment could only be pursued once further information had been sought.
Held that: (1) the act of the Lord Advocate relevant to sec 57(2) was the act of leading evidence of the contents of the covert recordings (para 20); (2) at that stage the admitted breach of Art 8 had already been committed by the police and the breach was not, therefore, an act of the Lord Advocate (para 20); (3) although the Lord Advocate sought to rely on evidence obtained by means of the act of the police, in so doing it did not make that act an act of his own (para 20); (4) the act, therefore, which was incompatible with a Convention right was not one to which sec 57(2) applied (para20); (5) the Lord Advocate's act in leading evidence of the contents of the recordings was only relevant to Art 6 (para20); (6) whilst the method of obtaining evidence may infringe Art 8, the leading of it may not infringe Art 6 (para 21); (7) the underlying principle was one of fairness and that falls to be decided by a trial within a trial (para 21); (8) the sheriff having answered that question in favour of the Crown that decision ought not to be disturbed (para 21); and appeal refused in part.
Observed per the Lord Justice-Clerk (Gill) that the Convention may not provide a solution that is not already present in Scots law (para 14).
Observed per Lord Johnston that the issues which had been focussed on related purely to the fairness of the trial in the context of admissibility of evidence and the Convention added nothing to that basic position (para 29).
DAVID MCGIBBON and PETER THOMSON CORSTORPHINE (akaSMITH) and others were charged on an indictment at the instance of Colin Boyd QC, Her Majesty's Advocate, the libel of which set forth various contraventions of sec 4(3)(b) of the Misuse of Drugs Act 1971.
The appellants pled not guilty and the cause came to trial before Sheriff Jarvie QC and a jury in the sheriff court at Edinburgh.
The appellants were convicted and appealed to the High Court of Justiciary.
Cases referred to:
A v HM AdvocateUNK 2003 SCCR 154
Advocate (HM) v RobbUNK 1999 SCCR 971
Attorney General's Reference (No 2 of 2001)WLR [2004] 2 WLR 1
Birse v HM AdvocateSC 2000 JC 503
Connor v HM AdvocateSC 2002 JC 255
Lawrie v MuirSC 1950 JC 19
McClory v MacInnes 1992 SLT...
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