Admissibility – Criminal proceedings – Evidence obtained through covert surveillance

Kinloch (AP) v Her Majesty's Advocate (Scotland): Supreme Court (Lords Hope DP, Mance, Kerr and Reed SCJJ, Lady Hale): 19 December 2012

Section 57(2) of the Scotland Act 1998 provides, so far as material: 'A member of the [Scottish government] has no power to make any subordinate legislation, or to do any other act, so far as the legislation or act is incompatible with any of the [European convention] rights or with [EU] law.'

On 6 February 2007, the appellant was the subject of police surveillance. The police observed the appellant from about 08.35 to 12.00. The appellant was seen leaving his car and entering the block of flats in which he lived, leaving the block carrying a bag and entering a car, which then drove off. He was observed leaving various other locations and cars in Glasgow and then entering a taxi carrying a bag which appeared to be heavy, and which was later seen parked outside his brother's home. The police approached the taxi, and the appellant and his brother were detained.

Various searches were carried out and large sums of money were recovered by the police. The appellant was subsequently charged with money laundering. In September 2010, a preliminary plea was taken on the appellant's behalf. The appellant contended that the police had acted unlawfully when they kept him under observation on 6 February 2007, as they had failed to obtain authorisation under the Regulation of Investigatory Powers (Scotland) Act 2000 to conduct convert surveillance on him. A devolution minute was moved in support of that argument. The sheriff refused the devolution minute. He also refused leave to appeal, and the case went to trial before another sheriff.

In December 2010, the appellant was found guilty of money laundering. Following conviction, a note of appeal was lodged in which it stated, inter alia, that the Crown had relied on the decision in Gilchrist v HM Advocate [2004] SCCR 595 (Gilchrist) when opposing the devolution minute and that Gilchrist had been wrongly decided. The appellant further contended that the sheriff had erred in law by refusing to allow leave to appeal his decision and had erred in repelling a submission of no case to answer.

The judge who dealt with the application at the first sift refused leave to appeal on both of those grounds. Subsequently, an opinion was obtained from counsel as to whether the appeal was arguable. Various reasons were given for criticising the approach that had been taken in Gilchrist to the question whether there had been a violation of the right to privacy under article 8 of the European convention on human rights (the convention). The second sift panel, having considered that opinion, also refused to grant leave to appeal. In November 2011, the appeal court, having heard counsel for the appellant and without giving reasons, granted leave to appeal to the Supreme Court.

An issue arose as to whether the court had jurisdiction to hear the appeal as it was far from clear that the issue identified in the devolution minute was a devolution issue within the meaning of paragraph 1(d) of schedule 6 to the Scotland Act 1998 (the 1998 act). On the assumption that the court had jurisdiction, the substantive issues in the appeal were: (i) whether the observations by the police, not having been authorised under the Regulation of Investigatory Powers (Scotland) Act 2000, breached the appellant's rights under article 8(1) of the convention; and (ii) if so, whether the act of leading the evidence derived from that surveillance was incompatible with the appellant's rights under article 8(1) and separately article 6(1) of the convention and thus ultra vires in terms of section 57(2) of the 1998 act. The appeal would be dismissed.

There was a zone of interaction with others, even in a public context, which might fall within the scope of private life. But measures effected in a public place outside the person's home or private premises would not, without more, be regarded as interfering with his right to respect for his private life. Occasions when a person knowingly or intentionally involved himself in activities which might be recorded or reported in public, in circumstances where he did not have a reasonable expectation of privacy, would fall into that category (see [19] of the judgment).

A person who walked down a street had to expect that he would be visible to any member of the public who happened also to be present. So too if he crossed a pavement and got into a motor car. He could also expect to be the subject of monitoring on closed-circuit television in public areas where he might go, as it was a familiar feature in places that the public frequent. The exposure of a person to measures of that kind would not amount to a breach of his rights under article 8 of the convention (see [19] of the judgment).

There was nothing in the instant case to suggest that the appellant could reasonably have had any such expectation of privacy. He had engaged in the relevant activities in places where he had been open to public view. He had taken the risk of being seen and of his movements being noted down. The criminal nature of what he had been doing, if that was what it had been found to be, was not an aspect of his private life that he had been entitled to keep private. Accordingly, there were no grounds for holding that the actions of the police amounted to an infringement of his rights (see [21] of the judgment). The first and second issues would be answered in the negative (see [22] of the judgment). Gilchrist v HM Advocate [2004] SCCR 595 applied; Lawrie v Muir [1950] JC 19 considered; Perry v United Kingdom (Application 63737/00) [2003] All ER (D) 296 (Jul) considered; HM Advocate v P (Scotland) [2011] All ER (D) 44 (Oct) considered.

Brian McConnachie QC and Claire Mitchell (instructed by Paterson Bell) for the appellant; Andrew Stewart QC and Kathleen Harper (instructed by the Appeals Unit, Crown Office) for the respondent.