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 in operation and they were liable to be seen, but there was no notice warning them that they were liable to be heard. During the two periods mentioned, they made remarks which the officers overheard and which DS Coutts noted in his notebook. The remarks included statements by each accused on which the Crown intended to found at the trial as showing or tending to show that he was implicated in the crime. It was not suggested by the defence that the statements had not been made. The statements were open to interpretation as indicating that they had told, or were preparing to tell, to the police untruths about the selling of the second car before the robbery and about the source of the money that had been in the first accused's possession in the flat. The accused did not otherwise disclose that they had played any part in the commission of the crime, and they did not disclose who had committed it or the whereabouts of the money.

[10] Later that day, each of the two accused was interviewed again and charged with the crime. Neither was asked anything about the statements which had been overheard. The first accused was charged at or about 10.35 p.m., and the second accused at or about 11.56 p.m.

3. Submissions

[11] Counsel for the first accused submitted that the test of admissibility was one of fairness: Chalmers v H M Advocate 1954 JC 66; Brown v H M Advocate 1966 SLT 105; H M Advocate v Graham 1991 SCCR 56. English authorities were not relevant. In the present case, the rules of fair dealing had been flagrantly disregarded and the accused had made their remarks as the result of a trap: O'Donnell v H M Advocate 1975 SLT (Sh Ct) 22; Jamieson v Annan 1988 SCCR 278. They had not been warned that they might be listened to. The eavesdropping had not been in accordance with law, as in Dudley v H M Advocate 2003 JC 53. Reference was also made to Khan v UK (2001) 31 EHRR 1016. The provisions of RIPSA had apparently never been considered. The crime being investigated did not have any special features which might have been prayed in aid to justify the eavesdropping: it was an unsophisticated bank robbery. It was significant that the police at the subsequent interviews had not asked the accused about the statements which had been overheard.

[12] Counsel for the second accused undertook a detailed survey of the development of the law. In addition to the authorities cited by counsel for the first accused, he referred to Hume, ii, 333-335; Alison, ii, 535-536; A M Anderson, The Criminal Law of Scotland (1892) pp 248-249; W G Dickson, The Law of Evidence in Scotland (3^rd edn, 1887 ed P J Hamilton Grierson) para 348; J H A Macdonald, The Criminal Law of Scotland (5^th edn, 1948 ed J Walker and D J Stevenson) pp 313-314; A G Walker and N M L Walker, The Law of Evidence in Scotland (2^nd edn, 2000 ed M L Ross with J Chalmers) paras 37-39; H M Advocate v Martin and Robb (1842) 1 Broun 382; H M Advocate v Christie or Paterson (1842) 1 Broun 388; Kerr v Mackay (1853) 1 Irv 213; H M Advocate v Turner and Rennie (1853) 1 Irv 284; H M Advocate v Hay (1858) 3 Irv 181; H M Advocate v Grant (1862) 4 Irv 183; H M Advocate v Graham (1876) 3 Coup 217; Gracie v Stuart (1884) 11 R (J) 22; H M Advocate v Smith (1901) 3 Adam 475; Russell v Paton (1902) 3 Adam 639; Cook v McNeill (1906) 5 Adam 47; H M Advocate v Duff (1910) 6 Adam 248; Leavack v Macleod 1913 SC (J) 51; Hodgson v Macpherson 1913 SC (J) 68; Waddell v Kinnaird 1922 JC 40; H M Advocate v Keen 1926 JC 1; and H M Advocate v Campbell 1964 JC 80. On the subject of disclosure, counsel referred to R v Bailey [1993] 3 All E R 513; McLeod v H M Advocate (No 2) 1998 JC 67; R v Brown [1998] AC 367; R v Loosely [2001] 1 WLR 2060; Pringle v R [2003] UKPC 9; Benedetto v R [2003] UKPC 27, [2003] 1 WLR 1545; R v H [2004] UKHL 3, [2004] 2 AC 134; Sinclair v H M Advocate 2005 PC 28; Holland v H M Advocate 2005 PC 3 and a decision of the Supreme Court of Canada, R v O'Connor [1995] 4 SCR 411.

[13] Counsel for the second accused submitted that the requirements of the European Convention on Human Rights (ECHR) and of RIPSA should now be superimposed upon the effect of the authorities of the common law relative to the admissibility of statements made by the accused. The failure to observe the requirements of RIPSA meant that there had been a breach of the accused's rights under Article 8 of the ECHR. Article 6 and Article 8 were entirely inseparable. There had also been a failure by the Crown to disclose the fact that the officers who had overheard the statements by the accused in the cells had been instructed to listen for and record any conversation between them. The Lord Advocate had no power to act in a manner incompatible with the rights of the accused under Articles 6 and 8.

[14] The Advocate Depute accepted that it was for the Crown to satisfy the Court on a balance of probabilities that the statements made by the accused in the cells had been fairly obtained: otherwise, they would fall to be excluded. He did not dispute that the posting of the listeners had been a deliberate tactic on the part of the police: there had been no question of accidental overhearing. Part of the purpose of the exercise had been to investigate the crime with a view to identifying the other persons involved and the whereabouts of a substantial amount of money. The statements made by the accused in the cells had been voluntary, gratuitous and unprovoked; they had not been elicited by deception or questioning; and they had been spontaneous and unprompted. The officers had been passive eavesdroppers. This was a circumstantial case in which there was not a superabundance of evidence. Times had changed, and some of the older cases were now of limited value. There had been a breach of Article 8, but given the passive nature of the officers' actings, the Court should be satisfied that the leading of the evidence of the statements would not deprive the accused of a fair trial in terms of Article 6. The Advocate Depute referred to the Police (Scotland) Act 1967, Section 17; R v Stewart [1970] 1 WLR 907; R v Bailey [1993] 3 All E R 513; R v Mason [2002] 2 Cr App R 628, [2002] EWCA Crim 385; Allan v UK (2002) 36 EHRR 143; R v Grant [2006] QB 60, [2005] EWCA Crim 1089; Henderson v H M Advocate 2005 JC 301; and Lawrie v Muir 1950 JC 301.

[15] On the issue of non-disclosure, the Advocate Depute conceded that the disclosure in the police statements of the circumstances in which they had come to overhear the conversations of the accused might have been more specific. It was readily apparent, however, from DS Coutts's notebook which had been disclosed to the defence and lodged as a production that the recording of the conversations had taken place over a period of time. It did not suggest that there had been casual overhearing. In any event the whole circumstances had now been disclosed as a result of the precognition of the officers in the course of the trial.

4. Discussion

The devolution minutes

[16] I shall begin by considering the two issues raised in the devolution minutes for the first and second accused. I deal first with the issue of non-disclosure. It was not until after the trial had started that it became apparent to those advising the first and second accused that the police had made a tactical decision to place these accused in adjacent cells and to post officers to hear and record any conversation between them. Before the trial there had been disclosed to the defence copies of the entries in DS Coutts's notebook and of statements by DS Coutts and DC Clark. Nowhere in these documents is it said that the two accused had been deliberately placed in adjacent cells and that the officers had been instructed to listen to and write down their conversation. No doubt the instruction, although not the cell placement, might have been inferred by a reader who was alert to the possibility that such an instruction might have been given. But such conduct is so unusual and so clearly in breach of RIPSA and the Code that the accused's legal advisers cannot reasonably be faulted for initially failing to realise that that in fact was what had happened. It is not impossible that the true position would have been made apparent to all concerned if the Crown had arranged for the officers to be precognosced, instead of leaving it to them to compose their own statements. When the position was eventually made clear in court, I adjourned the trial to enable all parties to precognosce all the relevant officers. After the adjournment, defence counsel expressed in court their appreciation of the assistance given them by the procurator fiscal in attendance at the trial. It is scarcely necessary to point out, however, that if the circumstances of the recording of the conversations had been explicitly disclosed before the trial, as they should have been, the matter would no doubt have been properly investigated and considered by the defence at that stage. As it was, the accused's legal advisers were placed in a difficulty and the necessary adjournment was an unavoidable but inappropriate use of valuable court time. Nevertheless the belated precognition exercise had the effect of remedying, albeit awkwardly and expensively, the justified defence complaint of non‑disclosure.

[17] The second issue raised in the devolution minutes is that the act of the Crown in seeking a conviction of the accused based on the evidence of the officers is incompatible with each accused's right to a fair trial and renders the trial unfair. Section 57(2) of the Scotland Act 1998 provides that a member of the Scottish Executive, which includes the Lord Advocate, has no power to do anything which is incompatible with the Convention rights, which include the rights set out in Articles 6 and 8 of the ECHR. As I shall explain later, the police in this case committed a breach of the rights of each of the two accused under Article 8. It is clear, however, from McGibbon v H M Advocate 2004 JC 60 that the act of the Lord Advocate that is relevant to Section 57(2) is the act of leading evidence of the contents of the overheard conversations. Whether he is entitled to do so will depend on whether the infringement of the accused's rights under Article 8 would result in a breach of Article 6. That question must be resolved by the application of the test of fairness, the same test that must be applied at common law when objection is taken to the admissibility of evidence of statements made by the accused. It is in my opinion superfluous to raise the matter as a devolution issue, although it is understandable that the defence chose to do so in the unusual circumstances of this case. I shall therefore confine myself to the application of the common law test of fairness.

Fairness

[18] In Brown v H M Advocate 1966 SLT 105, Lord Justice-General Clyde said (at page 107):

"The test, which time and again has been applied in Scotland to determine a matter of this nature occurring prior to a suspect being charged with the crime, is whether or not the proceedings which led up to his statement were fair to him or not."

In H M Advocate v Graham 1991 SCCR 56, Lord Cameron of Lochbroom observed (at page 59B-C):

"No doubt, as has been said in other cases in looking at the test, fairness will not only comprehend fairness from the point of view of the accused, but fairness also from the point of view of the public, who have an interest in the police being able to investigate crimes and bring to justice those who commit them."

A further consideration of general importance is that "the courts have a special duty to safeguard suspects, especially when they are in police stations" (Renton & Brown's Criminal Procedure (6^th edn, paragraph 24-36). The learned editor cites for that proposition two authorities, Chalmers v H M Advocate 1954 JC 66 and H M Advocate v Aitken 1926 JC 83. While these very familiar decisions may be of some age, as the Advocate Depute observed, the considerations underlying the proposition remain valid: that in the police station the suspect, who is in an intimidating environment, is at his most vulnerable, while for the police, who are on their own territory, the temptations to bend the rules are at their highest.

[19] I do not consider it apposite to cite Lawrie v Muir in the context of the present issue which is concerned with the admissibility of statements made by suspects after the commission of the crime. I also do not find it helpful to refer to the English authorities which have been cited. The law and practice of the two jurisdictions in this area are very different, and the English decisions are mainly concerned with the statutory discretion conferred on the courts by Section 78 of the Police and Criminal Evidence Act 1984, a provision which appears to be most commonly used in cases where evidence has been obtained in breach of the PACE Codes of Practice.

[20] I now consider the factors urged on either side of the question whether the test of fairness has been satisfied. The defence argued that the statements had been obtained by means of a trap; in breach of RIPSA; and in breach of the accused's rights under Article 8 of the ECHR. The Crown argued that the statements had been obtained because of the seriousness of the crime under investigation and the facts that others had been involved and a large sum of money was missing. The Crown also argued that the statements had been voluntarily made.

[21] Before the coming into force of RIPSA, the resolution of the question whether the test of fairness had been met would have been reasonably straightforward. The common law is authoritatively stated in these terms in Jamieson v Annan 1988 JC 62 (at page 64):

"[E]vidence of an overheard remark made by an accused person while in custody and relating to a matter relative to the charge on which he is being tried is admissible provided that the remark is made voluntarily and not as the result of an inducement or trap."

In my opinion the methods used by the police in this case can only be described as a trap. The strategy of the police was to facilitate the making of incriminating statements by each of the accused, who would thus provide evidence against himself of his commission of the offence when he was unaware that the police were listening to what he was saying. The technique was deliberately to place the two accused in adjacent cells on an otherwise unoccupied floor of the cell block, and to post listeners in the corridor outside to hear and record what the accused said. The object was to trick them into believing that they would not be overheard. The trick worked: the accused would not have spoken as they did if they had known that the officers were listening. In my opinion, accordingly, the application of the rule in Jamieson v Annan would have resulted in the exclusion of the evidence because the test of fairness had not been met.

[22] It is now necessary, however, to take account of the provisions of RIPSA. I did not have the advantage of hearing detailed submissions on this matter. That is understandable because the question of the admissibility of the statements had arisen unexpectedly. RIPSA was referred to only briefly. I therefore make the following observations with diffidence. The Act is concerned with the regulation of, inter alia, conduct described as "directed surveillance" and "intrusive surveillance". "Surveillance" includes "monitoring, observing or listening to persons, their movements, their conversations or their other activities or communications" and "recording anything monitored, observed or listened to in the course of surveillance" (Section 31(2)(a), (b)). Both "directed surveillance" and "intrusive surveillance" are "covert" (Sections 1(2), (3)). Surveillance is covert "if, and only if, it is carried out in a manner that is calculated to ensure that persons who are subject to the surveillance are unaware that it is or may be taking place" (Section 1(8)(a)). Such surveillance is lawful if an authorisation under the Act confers an entitlement to engage in that conduct on the person whose conduct it is, and that person's conduct is in accordance with the authorisation (Section 5(1)). Surveillance which is not so authorised "is unlawful, notwithstanding that what emerges from that surveillance is evidence implicating the speaker in criminal activity" (Henderson v H M Advocate 2005 JC 301, Lord Hamilton at paragraph [35]). Guidance on the use of covert surveillance is provided by the code of practice entitled Covert Surveillance: Code of Practice which was issued by the Scottish Ministers under Section 24(1) of RIPSA and brought into force by the Regulation of Investigatory Powers (Covert Surveillance - Code of Practice) (Scotland) Order 2003 (SSI 2003 No. 183). No reference was made to the Code of Practice at the trial within a trial.

[23] It is clear that the police subterfuge in this case was a form of covert surveillance. I did not hear argument on whether it was "directed" or "intrusive". Surveillance is intrusive if it is covert surveillance that "(a) is carried out in relation to anything taking place on any residential premises or in any private vehicle; and (b) involves the presence of an individual on the premises or in the vehicle or is carried out by means of a surveillance device" (Section 1(3)). "Residential premises" means "so much of any premises as is for the time being occupied or used by any person, however temporarily, for residential purposes or otherwise as living accommodation (including hotel or prison accommodation that is so occupied or used)" (Section 31(1)). In R v Mason at paragraph [68] the Court of Appeal (Criminal Division) when considering the equivalent provision of the Regulation of Investigatory Powers Act 2000 doubted whether police cells were "residential premises" and stated that it was desirable that what happened in police cells be treated as intrusive surveillance. I note that paragraph 6.4 of Covert Surveillance: Code of Practice states that the definition of "residential premises" in Section 31(1) of RIPSA includes police cells. It follows that the strategy adopted by the police in the present case amounted to "intrusive surveillance" and would have been lawful only if it had been authorised in terms of the Act. The Act provides for the grant of authorisations in cases of urgency (Section 12). In fact no attempt was made to obtain any grant of authorisation, for reasons which are unexplained. The statements were accordingly obtained in breach of the provisions of RIPSA.

[24] As to the admissibility of evidence obtained by unauthorised surveillance, RIPSA is silent. Paragraph 1.6 of Covert Surveillance: Code of Practice states:

"The admissibility of evidence obtained through covert surveillance in Scotland depends on whether evidence has been lawfully and fairly obtained. This will be decided in accordance with principles of common law."

The learned editor of Renton & Brown's Criminal Procedure (6^th edn) expresses the following opinion (at paragraph 5-21):

"The Act does not say that surveillance which is not so authorised is unlawful, or that evidence obtained by unauthorised surveillance is inadmissible, but presumably that is implied."

As I have noted, Lord Hamilton has now made it clear in Henderson at paragraph [35] that surveillance which is not so authorised is unlawful. It appears, however, that evidence obtained by unauthorised surveillance is not necessarily inadmissible on that account. Lord Hamilton went on to say in Henderson, at paragraph [36]:

"It is also important to observe that issues of the admissibility of evidence are primarily matters for the domestic courts and that a trial may be fair, notwithstanding that evidence, and crucial evidence, led by the prosecution in it was recovered on a surveillance which was not based on, or in compliance with, a statutory scheme (Schenk v Switzerland (1988) 13 EHRR 242 at paragraphs 45-46; Khan v UK (2001) 31 EHRR 45, paragraph 34)."

Henderson was concerned with the admissibility of contemporaneous evidence of the commission of the crime charged, and not with the admissibility of statements made by suspects after the crime had been committed. Henderson makes it clear that in the former situation the common law principles set out in Lawrie v Muir should be applied. In the latter situation, as I have already noted, Lawrie v Muir is not apposite and the test is that of fairness. It may be possible, however, to conceive of situations in which evidence of statements by a suspect might be considered to have been fairly obtained notwithstanding a failure to comply with RIPSA.

[25] I therefore consider whether the statements in the present case were fairly obtained notwithstanding the absence of authorisation for the intrusive surveillance.

It is important to notice that the surveillance was undertaken after each of the accused had been detained, interviewed under caution, and arrested. Thus they had been and continued to be subject to a rigorous regime, consisting of both statutory and common law rules, governing the detention, treatment and questioning of those in police custody. It was, in my opinion, wholly inconsistent with that regime that they should have been at the same time subject to unauthorised covert investigation of this nature with a view to their uttering statements that would be admissible against them in court. In the circumstances of this case, where no excuse or explanation has been offered for the failure to observe the requirements of RIPSA, the unauthorised surveillance must be regarded as a serious irregularity which not only cannot be condoned but also points strongly towards the transgression of the principle of fairness.

[26] The Crown relied on the seriousness of the crime and the facts that others had been involved in its commission and a large sum of money was missing. There is no doubt that the crime was sufficiently serious for the prosecution to have been properly brought in the High Court of Justiciary. The crime of robbing security guards of money, however, is regrettably not uncommon, and the modus operandi in this case was not very sophisticated. A large amount of money had been stolen, but fortunately none of the guards had been seriously injured. While the offence was clearly serious, it is necessary when evaluating its gravity to recognise that it had not been an act of terrorism; no one had been murdered, or assaulted to severe injury or danger of life; and no woman or child had gone missing or had been traumatised by an act of sexual violence or abuse. If the conduct of the police in this case were to be condoned by the Court, they would be entitled to repeat such conduct in many other cases. As to the desire to discover the identity of the culprits, I have already indicated that in my view that was not the only reason for the contrivance, and that the police were at least equally hopeful that the accused would incriminate themselves.

[27] The Crown also argued that the statements had been voluntary and the listeners had taken the role of a passive listening post. This argument appears to me to be nothing to the purpose. It is of course true that the statements were not made in response to questioning, but the ground of objection is not that they were obtained by improper pressure but that they were obtained by deception: they would not have been made if the accused had not been tricked into believing that they would not be overheard. While the listeners may have been passive, those instructing them had actively and deliberately brought about the situation in which the statements came to be made and recorded.

5. Result

[28] I therefore sustained the objections to the admissibility of the evidence.

[29] I did not find it necessary to resort to the ECHR in order to reach my decision. It is clear that since the intrusive surveillance was unlawful, it breached the rights of the accused under Article 8 of the ECHR. Article 8 (Right to respect for private and family life) provides:

"1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

I understood it to be common ground that the overhearing by the police of the conversation between the accused was an interference by a public authority with the exercise by them of the right conferred on the accused by Article 8, and that that interference was not in accordance with the law since it had not been authorised in terms of RIPSA. A breach of Article 8, however, does not of itself give rise to a breach of Article 6 (Right to a fair trial). Lord Hamilton so observed in Henderson at paragraph [36]. His Lordship went on to say, in the passage I have already quoted, that issues of the admissibility of evidence are primarily matters for the domestic courts and that a trial may be fair, notwithstanding that evidence is led which has been recovered by unauthorised surveillance. Again, accordingly, the test is that of fairness.

[30] After I gave my decision, the Advocate Depute stated that the Crown would lead no further evidence. After two joint minutes were read to the jury, the Advocate Depute intimated that he did not intend to proceed in respect of the other offences charged in the indictment. I acquitted the accused of those offences and stated that the trial would proceed only in respect of the charge of armed robbery. The Advocate Depute then closed the Crown case. Counsel for each of the three accused made a no case to answer submission. Having heard the Advocate Depute in reply, I sustained the submissions and acquitted the accused.