APPLICATIONS UNDER SECTION 128 OF THE CRIMINAL JUSTICE AND LICENSING (SCOTLAND) ACT 2010 IN PROCURATOR FISCAL, DUNDEE AGAINST (FIRST) WTH, PERTH; (SECOND) CJS, DUNDEE; AND (THIRD) GM LIMITED
SHERIFFDOM OF TAYSIDE, CENTRAL AND FIFE AT DUNDEE
[2016] SC DUN 15
JUDGMENT OF SHERIFF A N BROWN
In the applications under section 128 of the Criminal Justice and Licensing (Scotland) Act 2010
in
PROCURATOR FISCAL, DUNDEE
Against
(FIRST) WTH, PERTH;
(SECOND) CJS, DUNDEE;
AND (THIRD) GM LIMITED, DUNDEE
Act: Kempton
Alt: (First) Donnelly; (Second and Third) Gilmartin
Dundee, 27 January 2016
The sheriff, having resumed consideration of the applications, rules in terms of s128 of the Criminal Justice and Licensing (Scotland) Act 2010 that s121(3) of that Act applies to the following items of information:
1. The purpose of the operation on which PCs F and C were engaged at the time of the events with which the complaint is concerned, so far as it related to the first and second accused; the identity or identities of the officer or officers who directed that operation; the identities of all officers who participated in that operation; all instructions which were given to the officers who participated in that operation; the activities engaged in by those officers in pursuance of the operation including, without prejudice to that generality, in relation to the first and second accused; and the content of all reports made in relation to that operation by officers who participated in it.
2. In relation to the visit to the premises, occupied by GM Ltd, on 4 June 2014 - a full account of the aim of the visit and of briefing and instructions given to all who participated; a full account of the co-ordination of the visit, including the identities of those who proposed the visit and the content of their communications with other agencies about the visit; the identities of all the agencies which participated; the identities of all persons who were present at the premises as part of the multi-agency visit (not restricted to those actually on the premises); the positions which each of those persons held in their organisations; the addresses at which each of them can be contacted without going through the police; the powers which each exercised, purported to exercise or on the basis of which they were present; the content of all statements given by each of those persons in connection with the visit; the content of all reports made by each of them in relation to the visit both internally within their own agencies and to the police; a full list of items seized, including the identities of those who carried out each seizure and the nature of the power which they purported to exercise in making those seizures.
NOTE
[1] The three accused have pled not guilty to a summary complaint containing sixteen charges. Most of the alleged offences are contraventions of road traffic and regulatory legislation relevant to dealing in motor vehicles but the first and second accused also face charges of attempting to pervert the course of justice by providing false information about the insurance position in relation to a particular motor car. Defence statements have been lodged. The first and second accused now make application for a ruling in terms of s128 of the Criminal Justice and Licensing (Scotland) Act 2010 (“the 2010 Act”). After hearing argument, I continued consideration of the applications to a further intermediate diet on 2 February. I am issuing this ruling in advance of that diet in order to allow parties the chance to consider their positions and submissions as to future procedure in its light.
The disclosure regime
[2] Part 6 of the 2010 Act makes provision for a disclosure regime. The heart of the scheme is to be found in s121 which applies when the accused appears on petition, on indictment or (as in the present case) pleads not guilty to a summary complaint. Subsections (2) and (3) provide that:
(2) As soon as practicable after the appearance or the recording of the plea, the prosecutor must-
(a) review all the information which may be relevant to the case for or against the accused of which the prosecutor is aware, and
(b) disclose to the accused the information to which subsection (3) applies.
(3) This subsection applies to information if –
(a) the information would materially weaken or undermine the evidence that is likely to be led by the prosecutor in the proceedings against the accused,
(b) the information would materially strengthen the accused’s case, or
(c) the information is likely to form part of the evidence to be led by the prosecutor in the proceedings against the accused.”
[3] A continuing duty to keep disclosure under review and to make disclosure of additional information to which s121(3) applies is imposed on the Crown by s123. That review should be informed, in due course, by the content of the defence statement which must be lodged in terms of s125 of the 2010 Act. The duty incumbent on the prosecutor is supported by a duty on the investigating agency to “...inform the prosecutor of the existence of all the information that may be relevant to the case for or against the accused...” (s119(2)). The discharge of all of these duties by the prosecutor and by the investigating agency should also be informed by the Code of Practice: Disclosure of Evidence in Criminal Proceedings made under s164 of the 2010 Act.
[4] Where the accused has lodged a defence statement and considers that the prosecutor has failed, in responding to the statement, to disclose to the accused an item of information to which s121(3) applies, the accused may apply to the court in terms of s128 for a ruling on whether s121(3) applies to the information in question. Provision is made for reviews and for appeal by ss129 and 130.
[5] Where s121(3) applies to an item of information and a duty of disclosure arises under the 2010 Act but disclosure of the item of information would be likely to cause a real risk of substantial harm or damage to the public interest, the prosecutor must apply to the court for an order under s145 to prevent or restrict disclosure.
[6] It is important to note two things.
[7] First, a s128 ruling is declaratory in its nature. It is not an order to the prosecutor to disclose particular material. If the court rules that s121(3) applies to an item of information and the prosecutor fails to disclose that item of information, the accused’s remedy is likely to be a plea in bar of trial (possibly combined with a compatibility minute) or, in a case to which s121(3)(c) alone applies, an objection to the admissibility of the evidence. A court considering an application for a s128 ruling does not have power to consider what is to be done about any subsequent failure to make disclosure.
[8] Second, the focus of consideration in an application under s128 is exclusively on whether one of the criteria specified in s121(3) is met. The fact that the investigating agency or the prosecutor perceives a risk of harm or damage to the public interest tells the court nothing about whether a s128 ruling ought to be made in relation to an item of information. If such a risk is perceived, and especially if it is perceived following a s128 ruling that information is within the scope of s121(3), the prosecutor’s remedy lies in an application for a s145 order. A court which is considering an application for a s128 ruling has no power to consider the matters which are relevant to an application for a s145 order and would misdirect itself if it took into account, in its decision about s128, the possibility of a risk of harm or damage to the public interest. That possibility is properly for consideration on a s145 application. Paragraph 2.3 of the Code of Practice recognises clearly the separate nature of that application.
Submissions of parties
[9] The solicitor for the first accused explained that two police officers, PCs F and C, are the most significant witnesses in relation to all of the charges. The disclosed material gave the impression that their interest in the accused and discovery of offences had come about by chance, in the ordinary course of routine policing. He went on to explain that the first accused has been indicted for trial in the High Court on other charges and that disclosure received in connection with that indictment made it clear that, in fact, the first accused was believed by the police to be associated with an organised crime group which included the second accused and that, from March 2014 onwards, Constables F and C had been tasked with co-ordinating efforts against that group to “disrupt” them and gather intelligence. This was part of police Operation Cartogram. The two officers had been working full time on that task. In pursuance of that objective of disruption, they were, on a daily basis, targeting those whom they believed to be members of the group for road traffic offences. Neither the existence of the operation nor any of this detail was mentioned in the disclosure received in connection with the summary complaint. The solicitor said that it was thought that information about Operation Cartogram would bear upon the reliability of the officers and would weaken or undermine the case against the first accused. He therefore wanted confirmation that, on the occasions when the first accused was stopped whilst driving, it was part of a police operation and that PCs F and C reported those stops to the officers who were running that operation. He referred to what was to be said on behalf of the second accused about a search warrant and said that he understood that insurance documents had been recovered in the search of the business premises of the second accused. These, he said, would be relevant to the defence of the first accused.
[10] The written application on behalf of the first accused sought “an order instructing the Crown to disclosure [sic] the information which is essential to the proper presentation of the...defence.” This was specified in paragraph 6 of the application as “copies of any RIPSA Authorities in respect of any surveillance carried out on inter alia the applicant, any directions given to officers, including the said Constables F and C as to how these disruption tactics were to be carried out...the identity of all other Officers involved in said Operation and the Officer heading said Operation and thereby issuing the instructions...all Reports, Memoranda, Surveillance Logs or Observations made in writing by Constables F and C to the Reporting or Collating Officer of Operation Cartogram, detailing their involvement with the applicant in each of the charges on the...Complaint.”
[11] I asked parties for their submissions on the significance of Hinshelwood v Auld 1926 JC 4, in which the Lord Justice-General (Clyde) held that there was a broad general rule that any communication which is made by an inferior official to a superior official is, on grounds of public policy, a confidential document, and is not produceable in evidence. On that ground, notes made by police officers for the purpose of their report could not be recovered at the instance of the defence. Lords Skerrington and Sands delivered separate, concurring opinions. The solicitor for the first accused referred me to the Opinion of the Court, delivered by Lord Hardie, in Kinsella v HM Advocate 2011 SCCR 442, holding (on the concession of the Crown) that there was material in a police crime report which ought to have been disclosed. He also referred me to Sir Gerald Gordon’s Commentary on that case, in which the learned editor wrote that the decision of the court that there was no duty to disclose the results of an investigation unless it was requested had been overtaken by Part 6 of the 2010 Act and the associated statutory Code of Practice.
[12] The solicitor for the second and third accused explained that the third accused was the second accused’s company. He explained that the second accused is not indicted in the High Court and that he had become aware of Operation Cartogram only as a result of the steps taken by the solicitor for the first accused. The application on behalf of the second accused asserts that the statements disclosed did not disclose that the second accused was, at the time of the offences alleged against him, the subject of a surveillance operation. There was nothing in the statements to suggest that PCs F and C were involved in an operation targeting the accused, that they were carrying out surveillance of the accused and that they had been instructed to adopt disruption tactics in relation to the accused’s business. That information had been withheld. At an intermediate diet on 20 November, following the lodging of an application for a s128 ruling, a redacted copy of a single authorisation for directed surveillance of the second accused had been disclosed. This was the first indication that the second accused had been the subject of any surveillance. The Procurator Fiscal Depute in court on that date had said that the police officers involved in the investigation had said that any offences charged in the complaint had been discovered, not as part of an operation mounted against the accused but coincidentally. The application complains of deliberate omissions from the statements disclosed, giving rise to a reasonable apprehension that the police officers had exceeded the bounds of any authorisation granted and a reasonable apprehension that evidence had been obtained unfairly. The application also explains that each statement provided by the Crown has been assigned a “witness number” and that, since many numbers are missing, it is thought that there are statements in existence which have not been disclosed.
[13] The application on behalf of the second accused asks the court to hold that s121(3) of the 2010 Act applies to “all statements pertaining to the surveillance, directed or otherwise, of the accused together with all surveillance logs, RIPSA certificates and all other material relevant to the surveillance and disruption tactics adopted by Police Scotland in relation to the accused...this information will include surveillance authorisations and logs relevant to charges four, eight and sixteen on the...complaint, together with directions from Police (Scotland) to the Police Officers involved...this will also include search warrants for the premises mentioned in the charge.” The second accused also seeks disclosure of the statements which appear to be missing from the disclosure.
[14] In his submissions supporting the application, the solicitor for the second accused explained that charge 8, in terms of which his client was charged with failing to keep records of the sale of car registration plates, arose out of a co-ordinated visit to his premises by representatives of several regulatory agencies, including the DVLA and persons employed by Dundee City Council. There had been no “antecedent behaviour” (which I took to mean no particular regulatory interest before the visit). It was understood that the initiative had been that of the police. There had been a search of the premises and a statement by PC C which had been disclosed referred to another, unnamed, police officer being in possession of a search warrant. The statement also referred to the recovery of a finance agreement. The solicitor said that the defence needed disclosure about how the co-ordinated visit and search came about. They needed to see the search warrant. They needed to know what recovered material would be relied on by the Crown. It was understood that there was at least one “recorded media” not disclosed and that was needed.
[15] The solicitor for the second accused submitted that the defence needed surveillance logs relating to the second accused and to his place of business throughout the whole period of the libel.
[16] The solicitor for the second accused said that it had been disclosed that charge 16 (carrying on business as a dealer in second hand goods without a licence) had been investigated following intelligence. He submitted that the defence needed to know whether that was surveillance and, if so, what was authorised.
[17] In relation to statements, the solicitor for the second accused explained that the format of the statements disclosed to him indicated that there were, in all, at least eighty-seven witnesses but that he had only received disclosure of statements for thirty-five of them. He explained that each disclosed statement bore a case reference, which related to the matters charged on the Complaint, and also a number for the witness. There were obvious gaps in the numbers. It was his submission that all the statements of all witnesses on the Crown list must be disclosed and he founded on statements to that effect in HM Advocate v B 2006 SLT 1093, McDonald v HM Advocate 2008 SLT 993 and HM Advocate v Murtagh 2009 SLT 1060.
[18] The procurator fiscal opposed the applications. He told me that the Complaint is a “roll up” of four cases. PC C was involved in the investigation of those cases and PC F was involved with him in the investigation of the road traffic charges, which are charges 1 to 7 on the Complaint. They were not involved in surveillance and these offences were not detected by surveillance in any way. He told me that Operation Cartogram was an investigation into a serious organised crime group. Surveillance was deployed in relation to the second accused but on the days when that occurred, PCs C and F were not involved. They were provided with intelligence regularly about persons linked to the investigation. He did not know the source of that intelligence. The first four charges (which relate to the use of a car by the first accused and to what the second accused said about it) were detected as a result of an intelligence-led patrol, not surveillance. By that, he meant that PCs C and F were patrolling “actively” round the area of the first accused’s home in both marked and unmarked vehicles. He confirmed that they were engaged in “disruption” and said that such activity was contemplated in the Scottish Government publication “Letting Our Communities Flourish: A Strategy for Tackling Serious Organised Crime in Scotland” (2009). Charges 5, 6 and 7 (use of a motor car without a test certificate, keeping a motor car without insurance and failing to identify the driver) were detected when the two officers received intelligence that the first accused was driving a van whilst using a mobile phone. They arranged for the van to be monitored using CCTV and the driver was seen to be using a mobile phone. The procurator fiscal did not know the source of the intelligence but thought an off duty police officer, knowing that the first accused was of interest, might have made a phone call. (This was, I suspect, a guess.) As to charges 8 to 16, the procurator fiscal did not know but could not contradict the proposition that the co-ordinated visit was a police idea. Apart from DVLA, he did not know which agencies had been involved. He was unclear about the basis for any search but did say that some of the agencies involved had powers of entry for regulatory purposes. He did not give any specification of the agencies or the powers he had in mind. In general, he invited me to have serious regard to what the Lord Justice-General said in Hinshelwood v Auld. He said that the instructions about the tactics to be employed and how they were to be employed were not disclosable because the police considered that this information was not material to the charges. Statements from the senior officer(s) directing Operation Cartogram would not be disclosed because it is not the practice of the police for such officers to supply information unless it is material to the charge. There had been no surveillance in relation to the matters charged on the Complaint. The Crown had disclosed all of the statements which they had received.
Discussion and decisions
[19] My task is made more difficult than it need have been by the gaps in the procurator fiscal’s information. Questions to which he simply did not know the answer arose repeatedly in the course of the discussion. It might well have been that, if the procurator fiscal had been able to give better information or even assurances about compliance with the disclosure regime, the conclusions which I have reached would have been different. However, in deciding whether the various items of information sought by the defence are within the scope of s121(3), I have in mind paragraph 2.2 of the Code of Practice, in terms of which “[i]f the Crown is in doubt about the materiality of an item of information, then it should be treated as if it were material and disclosed to the defence...”. In promulgating the Code, the Lord Advocate committed the Crown to a liberal understanding of s121(3). Moreover, I am required to read and give effect to legislation in a way which is compatible with the Convention rights (Human Rights Act 1998 s3(1)) and, of course, the disclosure provisions of the 2010 Act were enacted so as to put in place arrangements which satisfy Article 6 ECHR. In interpreting the Convention rights, I am to take account of the decisions of the Strasbourg organs (Human Rights Act 1998 s2). In Jespers v Belgium 27 DR 61 (1982) the European Commission of Human Rights took the view that the accused must be enabled to acquaint himself with the results of the whole investigation and that Art 6.3(b) entitles him to “all relevant elements that have been or could be collected by the competent authorities”. That was reiterated by the European Court of Human Rights in Galstyan v Armenia (15 November 2007) (para 84). The aim of Art 6.3(b) is to ensure that the accused has a reasonable opportunity to present his defence in conditions that do not place him at a disadvantage vis-a-vis his opponent (Bulut v Austria 1996-II (para 47)). On this basis, Lord Reed (extrajudicially) and Professor Murdoch have written that “the authorities must allow access to the case file or to information which could be of assistance in the preparation of the defence” (Robert Reed and Jim Murdoch, Human Rights Law in Scotland, 3rd edition, Bloomsbury Professional, 2011, p686).
[20] Against that background, where the Crown have been unable to give information about an aspect of the application, I am not inclined to make assumptions in their favour. I shall approach the applications on the basis that, if there is a real possibility that an item of information is material in the sense of the section, s121 applies.
[21] I have considered the effect of Hinshelwood v Auld. I have come to the conclusion that the decision in that case has been superceded by the disclosure provisions of the 2010 Act. Public policy remains an important consideration but it is now protected in a more nuanced way. Whereas Hinshelwood proceeded on the view that public policy required a blanket immunity for reports to superiors, the 2010 Act has legislated for a two stage approach. The first is the determination of what is disclosable (if need be, under s128). The second is a decision on an application for a s145 order about whether disclosure would risk harm to the public interest. In dealing with these applications, I am concerned only with the first stage.
[22] The first significant thing which is sought in the applications is information about the nature of the policing activity in which Constables F and C were engaged in relation to each of the accused. It is common for evidence to be led about the nature of the duties upon which a police officer was engaged at the time of the events about which he gives evidence. That information sometimes provides important context for the evidence which is given. On the basis of the limited amount that the procurator fiscal was able to tell me, supplemented by the uncontradicted submissions of two experienced and responsible defence solicitors about the material which they have received, it seems clear that the defence are entitled to think that the police activity which has led to the Complaint which the accused now face was part of, or closely related to, a larger operation which involved surveillance of a sort which required authorisation under the Regulation of Investigatory Powers (Scotland) Act 2002. It seems reasonably clear that that the officers were involved in co-ordinated action designed to disrupt the activities of the first and second accused. It is possible that it was their task to co-ordinate that action.
[23] There is, of course, nothing wrong with that. In principle, the disruption contemplated in “Letting Our Communities Flourish” is entirely lawful. Law enforcement is not a game and no member of the public can complain if the police detect him in the act of offending, even if they do so by paying much closer attention to him than they would to anyone else.
[24] The problem arises if close attention drifts into a fishing expedition which is not in accordance with law. That, in essence, is what the defence assert, especially in relation to the multi-agency visit to the third accused’s premises. The procurator fiscal was unable to tell me very much at all about that visit but it seems clear that there was a visit. It appears that that there may have been a search warrant and that some of those who participated may have obtained entry on the basis of so far unspecified statutory regulatory or inspection powers.
[25] The search of premises without consent and without either a warrant or a statutory power of entry is not in accordance with law. It is, at best, irregular. Moreover, since the third accused’s premises were the second accused’s place of work, they were, prima facie within the scope of Article 8 ECHR (Niemietz v Germany (1993) 16 EHRR 97). Statutory powers of entry tend to carry restrictions in relation to the circumstances and/or the purposes for which they can be exercised. Such restrictions are intended to protect the public against “fishing expeditions” (Singh v HM Advocate 2001 SLT 812). For example, the power of entry under s77 of the Road Traffic Act 1988 (which provides for entry to premises to test the roadworthiness of used vehicles which are for sale) can only be exercised by an authorised person at a reasonable hour and for the purpose of conducting those tests. I emphasise that this is only an example, since the procurator fiscal had no idea which agencies were present and which powers they claimed to be exercising and could not direct me to the particular powers which the Crown asserts were exercised.
[26] The defence suspect that the visit was co-ordinated by the police in pursuance of the policy of disruption precisely as a fishing expedition. They are putting that in issue. The Crown will, therefore, have to lead evidence that demonstrates that whatever went on was lawful and within the scope of the power (which would include the question whether all those who went onto the premises did so lawfully) (Singh). If it was not lawful, the Crown will have to place evidence before the court in support of the submission that any irregularity should be excused (again, Singh). For that reason, in my opinion and in the present state of my information, information about all of these matters is likely to form part of the evidence to be led by the prosecutor in the proceedings against the accused and it is, therefore, within s121(3)(c) of the 2010 Act. If the defence are right and this was a fishing expedition, that would be capable of being characterised as an abuse of statutory powers such as would undermine the evidence likely to be led against the accused and so come within s121(3)(a). The agent for the first accused told me that certain insurance documents were seized which would materially strengthen the case for the first accused. That would bring those documents within s121(3)(b). If documents were indeed seized under the authority of a search warrant or otherwise, they belong to the second or third accused. Unless the Crown is to found on them (which would bring them within s121(3)(c)), I can see no basis on which those accused can be denied the use of their own property.
[27] In my opinion, therefore, in relation to the multi-agency visit to the premises occupied by GM Ltd, on 4 June 2014, s121(3) applies to the following items of information: a full account of the aim of the visit and of briefing and instructions given to all who participated; a full account of the co-ordination of the visit, including the identities of those who proposed the visit and the content of their communications with other agencies about the visit; the identities of all the agencies which participated; the identities of all persons who were present at the premises occupied by GM Ltd, on 4 June 2014 as part of the multi-agency visit (not restricted to those actually on the premises); the positions which each of those persons held in their organisations; the addresses at which each of them can be contacted without going through the police; the powers which each exercised, purported to exercise or on the basis of which they were to be present; the content of all statements given by each of those persons in connection with the visit; the content of all reports made by each of them in relation to the visit both internally within their own agencies and to the police; a full list of items seized, including the identities of those who carried out each seizure and the nature of the power which they purported to exercise in making those seizures.
[28] That is a substantial amount of information. It might well be that the procurator fiscal will regard himself as obliged to make an application for a s145 order in relation to some of it. I would normally have expected the Crown to be in a position to provide the kind of information which I have identified and to do so in a way which was well focussed on the issues likely to arise at trial, so that the court would not have to make such a wide ruling. I reiterate that, in this case, the information known to the procurator fiscal was inadequate and, as result, the information and assurances which he was able to give to me were inadequate. I have found it impossible to make a ruling which was narrower in scope but which seemed likely to meet the need.
[29] On the basis of the information which has been given to me by the Crown, the detection of the other charges occurred in the context of the same disruption operation as the visit to the third accused’s premises. That fact alone would, no doubt, have caused the defence to distrust what they were being told about those other charges. It would not, however, necessarily have resulted in a ruling that there was material in relation to those other charges which was within the scope of s121(3). If, however, as the solicitors for the accused say without contradiction, the statements disclosed to them in connection with the summary prosecution gave the impression that the conduct alleged in the summary Complaint was detected by coincidence, in the ordinary course of policing, they have a legitimate complaint that those statements were misleading. Since the purpose of disclosure is to contribute to the fairness of the trial, there is a risk that the disclosure of a misleading statement is likely to work towards unfairness. In terms of s121(3)(a) in particular, if, at trial, the officers maintained that they detected the offences by chance, in the course of ordinary policing, information that they were, in truth, targeting the accused in an operation designed to disrupt would contradict, and have the capacity to undermine the reliability of, their evidence. Alternatively, if they gave evidence that they were engaged in a targeted operation, a cross examiner would be entitled to invoke s263(4) of the Criminal Procedure (Scotland) Act 1995 and prove that they had previously made statements which were, on that point, different. That is, classically, an approach which is capable of weakening or undermining the reliability of the evidence of the witness in relation to whom it is used. I am therefore satisfied that information about the true nature of the operation on which these officers were engaged and whether it was an operation to disrupt, directed at the accused, would materially weaken or undermine the evidence which is likely to be led by the prosecutor. It is, therefore, information to which s121(3) applies.
[30] The question which then arises is how much information about the generality of the operation is disclosable. Answering this question is made difficult by the gaps in what the procurator fiscal was able to tell the court. In my opinion, the court should usually accept the account of the circumstances of a case which is given by a responsible public prosecutor who states on his or her professional responsibility that he is satisfied that he is in possession of all of the information which s119 requires the police to give him. Indeed, I think that the court should be slow to look behind an assurance, given by a prosecutor thus situated, that disclosure has been considered fully and that there is no material which falls into the categories identified in a s128 application.
[31] This is not such a case. It appears that there is much that the police have not told the procurator fiscal. It was explained that they thought it was not material to the charges. That misses the point. The duty of the investigating agency is set out in s119(2). It is to inform the prosecutor of “all the information that may be relevant to the case for or against the accused” (emphasis added) that the agency is aware of. Materiality to the charge is a narrower concept and is not mentioned. Nor is it mentioned in the Code of Practice. It appears, then, that the police may have been applying the wrong test to what they have told the procurator fiscal. Moreover, materiality to the charge is not a criterion which finds place in s121(3). Since the procurator fiscal invoked that concept in opposing the applications, it appears that the Crown may also have been applying the wrong test.
[32] It also appears that the decisions taken about disclosure, by both the police and the Crown, may have been informed by the making of misguided distinctions. The first of these is the distinction which the procurator fiscal sought to draw between surveillance and intelligence led patrols around the home of the first accused by officers who were interested in whether or not he was committing offences. I perceive no distinction. “Surveillance” is a word in ordinary use and, in my opinion, it is apt to describe what the procurator fiscal told me the officers were doing. To be sure, it was not, for aught yet seen, surveillance of a type which would require authorisation; but it was surveillance. I was also troubled by the significance which the procurator fiscal seemed to attach to the fact that PCs C and F were not involved in surveillance in relation to the second accused but were (merely) provided with intelligence, from a source which he did not know. On the face of it, officers who act on the basis of information obtained by surveillance (if that is indeed what was happening) are as much part of an operation as those who conduct that surveillance.
[33] I find it helpful to have in mind the principle that the accused must have a reasonable opportunity to present his defence in conditions that do not place him at a disadvantage vis-a-vis his opponent (Bulut v Austria 1996-II (para 47)). The whole impression which I have gained from submissions by the two solicitors for the accused and from the submissions of the procurator fiscal (in particular, the making of distinctions which I regard as unjustified and the inappropriate use of the concept of materiality to the charge as a criterion) is that this prosecution has been isolated from its Operation Cartogram context in a way which is so artificial as to be misleading and which, by denying to the defence any real information about that context, places the defence at a significant disadvantage vis-a-vis the Crown. It should be kept in mind that, in an adversarial system applying a presumption of innocence, the court depends on the contribution of both sides to allow it to come to a proper conclusion. The work of the defence is essential to justice. It needs to be properly informed.
[34] In my opinion, on the basis of the information presently before me, a fair trial and compliance with Article 6.3(b) require that the following items of information should be disclosed: the purpose of the operation on which PCs F and C were engaged so far as it related to the first and second accused; the identity or identities of the officer or officers who directed that operation; the identities of all officers who participated in that operation; all instructions which were given to the officers who participated in that operation; the activities engaged in by those officers in pursuance of the operation including, without prejudice to that generality, in relation to the first and second accused; and the content of all reports made in relation to that operation by officers who participated in it.
[35] I recognise that the categories of information which are covered by this are wide. I have found that unavoidable in view of the unsatisfactory information provided by the procurator fiscal. My consideration has been handicapped by the gaps in what the procurator fiscal could tell me, which appear to be attributable to questionable compliance by the police with s119(2). I have erred in favour of the liberty of the subject, transparency and a fair trial. I recognise that it is likely that the police will be concerned about the protection of technique. That is a legitimate concern. I reiterate that it remains open to the Crown to make an application for a s145 order.
[36] This leaves two categories of information, with which I can deal briefly.
[37] The first is statements. The cases to which the solicitor for the second accused referred all dealt with the statements of witnesses on the list which forms part of an indictment. That the statements of those witnesses should be disclosed is uncontroversial and reinforced by the fourth of the “core principles” set out in the Code of Practice. The present case is not being prosecuted on indictment and neither the cases nor that core principle have any bearing. I draw no conclusions from the numbering applied to the witness statements. I do not know enough about the police computer system to draw conclusions. Apart from statements made by those who were present at the third accused’s premises, I have not identified any statements to which s121(3) applies. Of course, the procurator is under a continuing duty to keep disclosure under review and it might well be that statements will be disclosed as a result of the ruling I have made about items of information to which s121(3) does apply. I do not, however, make any ruling on that matter here.
[38] There were requests that I should order the disclosure of various documents such as search warrants, authorisations and surveillance logs. I cannot make such an order. I can only rule that s121(3) applies to items of information. The sorts of documents mentioned are all things upon which the Crown is likely to have to rely at trial. If so, the procurator fiscal will, no doubt, conclude that the documents should be disclosed.