First Appellant: M Mackenzie ; Higgins Morledge and Litterick, Alloa

Second Appellant: G Anderson ; Virgil M Crawford, Stirling

Respondent: MacSporran A.D.; Crown Agent

4 November 2011

Background

[1] This is an appeal against the decision of the Sheriff, following a preliminary hearing at which evidence was led, to repel pleas in bar of trial and refuse associated devolution minutes at the instance of both appellants. The minute at the instance of Millar also raised issues in relation to his interview following detention which were not the subject of detailed consideration by the sheriff and were not raised before us. Since the minute was refused in its entirety, we assume that is no longer an issue. The focus of both pleas was entrapment. It was a matter of agreement that whether the proceedings should proceed to trial against both accused depended upon the question whether the first appellant had been entrapped by undercover officers into committing the offence libelled in the complaint. The Advocate depute acknowledged that the inevitable consequence of such a finding was that proceedings could not continue against the second appellant either.

The Evidence

[2] Before the Sheriff the Crown led three witnesses. Neither appellant led any evidence. The first Crown witness was an Inspector of Central Scotland Police Organised Crime Unit who was overseeing and coordinating Operation Pecan, a drugs operation within Clackmannanshire in the course of which certain authorisations were sought and obtained by him under the Regulation of Investigatory Powers (Scotland) Act 2000 ("2000 Act"). One of these authorisations was for the use of Test Purchase Officers, the other witnesses, Officer Debbie and Officer Ella. It is accepted that the police had reason to believe that controlled drugs, particularly cocaine, were available and supplied within the premises known as Chalmers Nightclub, Alloa, and that four particular individuals were suspected to be linked to the drug dealing activity. Authorisation under section 7 of the 2000 Act was granted by a Chief Superintendent of Central Scotland Police for the conduct and use of the two Test Purchase Officers "to obtain information in relation to the subject premises, Chalmers Nightclub, Alloa, four named individuals and to include any other individuals who may be involved with them in their criminal activity at any location within the Central Scotland Police area for the prevention and detection of crime and disorder, namely the unlawful supply of controlled drugs in the Central Scotland Police area and for the purpose of protecting public health."

[3] On the strength of that authorisation, the Test Purchase Officers were on 6 February 2010 instructed to attend Chalmers Nightclub to make enquiries regarding the availability of controlled drugs there, to make evidential test purchases and to identify individuals involved in the supplying of controlled drugs. The other detailed formalities associated with the authorisation, on which the Sheriff made specific findings, are immaterial to the issue before us.

[4] At the nightclub the officers learned that there were three known drug dealers within the premises but that none of them was in a position to supply drugs immediately. They satisfied themselves that none of the four suspects named in the authorisation was present within the premises. At about 00.45 hours on 7 February, both officers made their way to the smoking area located to the rear of the premises. They engaged the first appellant in conversation. He identified himself as "Vinnie". He was unknown to either officer and not under suspicion of any kind. The officers has no reason to suspect that he was concerned in anyway in the supplying of controlled drugs. Officer Debbie asked if he was local. He confirmed that he was. She then asked, "Do you know where we could get sorted?" He replied, "What are you after?". Officer Debbie said, "Coke". The first appellant produced a cigarette packet from which he took a wrap of cocaine and proffered it to Officer Debbie. He told the officers the wrap would cost £40. He asked if they needed more, to which Officer Debbie enquired if he had another gram. He then produced a wrap from his jeans pocket and indicated that it would be £40 as well. Officer Ella handed him £80 in cash.

[5] The appellant indicated that, if the officers were satisfied with the "goods", they should give him a shout, and gave them his mobile telephone number. There were further transactions on 13 February and 16 March following further contact being made by the officers with the first appellant. Meanwhile the authorisation under section 7 of the 2000 Act was reviewed on 9 February 2010 to include reference to "Unknown Male: Vinnie" and on 18 February to include the full name and designation of the first appellant.

[6] It was not until 6 March that the second appellant became involved. Officer Debbie had sent a message to the first appellant asking if he could source a bit more and referred to a "Q", that is to say a quarter ounce. He indicated that he could. They arranged to meet at a public house where Officer Debbie handed over £230. The first appellant went around the premises to the car park and returned with seven wraps of cocaine. At that point a car driven by the second appellant left the car park. The first appellant acknowledged and waved to the second appellant, who retuned the compliment.

The Submissions

[7] In presenting the case for the first appellant, Ms Mackenzie submitted, under reference to Corstorphine v HM Advocate [2009] HCJAC 100 and R v Loosely [2000] UKHL 53, [2001] 1 WLR 2060, and [2001] 4 ALL ER 897, that the two police officers had crossed the line into unauthorised illegitimate activity and entrapment when they selected the first appellant at random and initiated the conversation relating to drugs. He was not the subject of the authorisation and had not been behaving in any way suspiciously. There was thus no basis for the police officers to target him.

[8] Ms Mackenzie also submitted that the authorisation was drawn in terms that were far too wide. The extent of the authority granted was "to obtain information in relation to the subject premises, i.e. Chalmers Nightclub, and four named subjects and to include any other individuals who may be involved with them in their criminal activity". That was said by Ms Mackenzie to be so wide as to permit the officers to engage at random with any persons within the nightclub and thus amounted to a disproportionate interference in the right to privacy under article 8 of the European Convention of Human Rights of each patron or customer of the nightclub attending there to enjoy entertainment, including the first appellant.

[9] Mr Anderson for the second appellant simply confirmed to us that the fate of his client depended on the outcome of the case for the first appellant.

[10] In response, the Advocate depute founded upon the full and comprehensive analysis of the circumstances by the sheriff. He submitted that the conduct of the police officers towards the first appellant fell within the terms of the authorisation which was in entirely appropriate terms. He confidently maintained that that was so, but further submitted that, if it were not so, the conduct involved was not such as to require authorisation under section 7 of the 2000 Act. He also founded upon on R v Loosely to support his further contention that there was nothing in the conduct of either officer that could properly be described as entrapment. What had actually happened was that the first appellant had seized upon the merest "glimpse" of what he saw as an opportunity to engage in a drug supply transaction. He needed no encouragement to act as he did. There was nothing in the case to suggest any intent on the part of the officers to lure him into committing a crime or that the officers had acted in anything other than good faith. He invited us to hold that the sheriff's interpretation of the law was correct on both points, viz that the conduct was duly authorised and that it did not constitute entrapment.

The Authorisation under Section 7 of the Regulation of Investigatory Powers (Scotland) Act 2000

[11] We deal first of all with the width and terms of the authorisation under Section 7 of the 2000 Act. We found that challenge to the sheriff's decision to be without merit. The authorisation was plainly based on intelligence about activity within the subject premises, including the names of some individuals suspected to be involved. It was entirely reasonable to include reference to others who may be involved with them in their criminal activity since that activity involved trafficking in drugs, an activity which notoriously involves groups of persons acting together. Locating individuals involved in that activity lay at the heart of their legitimate inquiry. The authority given to the officers was strictly controlled by conditions included in the authorisation. In our opinion the terms of the authorisation were reasonably necessary for the proper execution of the investigation undertaken and entirely proportionate to the threat posed to the community by the activity being investigated, viz the supplying of a class A drug in a place of public entertainment. Following the first encounter between the officers and Vinnie, the authorisation was managed appropriately. It was amended at the earliest opportunity to include reference to "Unknown male: Vinnie". Following their second encounter, the authorisation was further reviewed and revised to include the full name and designation of the first appellant. A transparent record of the steps taken in the investigation was thus retained for ultimate scrutiny in court, if so required.

Entrapment

[12] In her submissions Ms Mackenzie laid particular emphasis on paragraph 24 of the speech of Lord Nicholls of Birkenhead in R v Loosely. Having discussed the significance of how the opportunity to commit a crime is presented by police officers, Lord Nicholls continued:

"24. This is by no means the only factor to be taken into account when assessing the propriety of police conduct. The investigatory technique of providing an opportunity to commit a crime touches upon other sensitive areas. Of its nature this technique is intrusive, to a greater or lesser degree, depending on the facts. It should not be applied in a random fashion, and used for wholesale 'virtue-testing', without good reason. The greater the degree of intrusiveness, the closer will the court scrutinise the reason for using it. On this, proportionality has a role to play."

A similar point was made by Lord Hoffmann at paragraphs 50, 51 and 56.

[13] These and other remarks in R v Loosely provide guidance for any court faced with a challenge to the proceedings based on entrapment. However, the essence of the challenge clearly identified in R v Loosely, and in Scotland in Jones v HM Advocate [2009] HCJAC 86, 2010 SCCR 523 and Brown v HM Advocate [2002] SCCR 684, 2002 SLT 809, is the creation of a crime by the state for the purpose of prosecuting it. In such circumstances the prosecution of the appellant would be an abuse of state power and an affront to justice. Lord Nicholls went on to state the ultimate issue in these terms:

"25. Ultimately the overall consideration is always whether the conduct of the police or other law enforcement agency was so seriously improper as to bring the administration of the justice into disrepute."

It was put in very similar terms by Lord Philip in Brown v HM Advocate:

"Entrapment occurs when the State (in the form of the police or other agency) become involved in the instigation of crimes which would not otherwise be committed, whether by deception, pressure, encouragement or inducement. ...entrapment is objectionable because of the unacceptability of the conduct of the State, as opposed to any prejudice or unfairness which may be suffered by the perpetrator of the crime".

In endorsing the guidance in R v Loosely as equally valid in Scots law, Lords Reed and Menzies in Jones v HM Advocate, at paragraphs 38 and 92 respectively, also endorsed paragraph 23 of the speech of Lord Nicholls where, in discussing how to identify the limits of police conduct which are acceptable, he said:

"On this a useful guide is to consider whether the police did no more than present the defendant with an unexceptional opportunity to commit a crime. I emphasise the word 'unexceptional'. The yardstick for the purpose of this test is, in general, whether the police conduct preceding the commission of the offence was no more than might have been expected from others in the circumstances. Police conduct of this nature is not to be regarded as inciting or instigating crime, or luring a person into committing a crime".

[14] In our opinion the actions of the Test Purchase Officers not only fell within the terms of the authorisation, but were also exactly what we would expect any responsible police officer to do in furtherance of the authorised operation, having failed to locate any of the four named targets there and having confirmed that drug dealing activity was apparently quite common within the premises. Their actions cannot in any proper sense be said to have been random. In any event they did no more than seek information from someone who was not a suspect as to where they might find a dealer. The immediate response to that by the first appellant was to produce drugs. Not only did he produce one deal, he also went on to produce another and then gave them his telephone number and invited further contact and purchases. The first appellant's involvement in the criminal conduct which has come to be the subject of the case had already begun before the first significant question was asked by Officer Debbie. That question was a neutral one, in the sense that it related to criminal activity but involved nothing of the nature of incitement or instigation or lure designed to get the first appellant involved in activity that he would otherwise not have undertaken. At the very most it did no more than present him with "an unexceptional opportunity to commit a crime". All that happened thereafter was that the officers followed his invitation to see where it would lead. It led to an extension of that criminal conduct by supplying further cocaine on other occasions, and to his involving the second appellant after he responded to the enquiry from Debbie whether he could source a quarter ounce by indicating that he was in a position to do that and engaging as a go-between with the second appellant.

[15] There was absolutely nothing in the evidence to suggest that what occurred at that stage was anything other than criminal conduct in which the second appellant chose entirely voluntarily to involve himself. There is no suggestion that any exceptional or unusual ingredient was put into the mixture of events to cause the offence to be committed. In our opinion the sheriff was plainly entitled to reject the contention that what occurred amounted to entrapment, in particular that the undercover officers had "lured, incited or pressurised the accused into committing the crime". There was no question of crime being increased by artificial means or the bringing about of the commission of crimes by persons who would normally avoid crime of that kind.

Decision

[16] For these various reasons we refused these appeals.