APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Clarke Lord Abernethy Lord Philip	[2009] HCJAC 100 Appeal No:XC340/02 OPINION OF THE COURT delivered by LORD CLARKE in APPEAL AGAINST CONVICTION by PETER THOMSON CORSTORPHINE (AKA SMITH) Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

Appellant: Shead et McKenzie; More & Co

Respondent: G Allan QC; Crown Agent

18 December 2009

[1] On 13 October 2000 the appellant Peter Thomson Corstorphine or Smith, was found guilty at Edinburgh Sheriff Court, by a majority of the jury, of two charges of being involved in the supply of drugs, while on bail. The first related to the supply on various dates in 1999, and at various addresses in Edinburgh, of cannabis resin "to another or others including in particular undercover police officers known as "Sean" and "Jav"...". The second charge related to the supply on various dates in 1999, at various addresses in Edinburgh, of amphetamine "to another or others including in particular an undercover police officer known as "Sean"...". In respect of each charge the appellant was admonished. The appellant appealed against conviction.

[2] In her original report to this court, the Sheriff set out the evidence which led to the conviction of the appellant. Before us Mr Shead, counsel for the appellant, did not dispute in any respect the Sheriff's narration of that evidence, nor did he invite us to look at any notes of evidence. We summarise the Sheriff's narration of the evidence, as relevant to this appeal, as follows.

[3] The evidence disclosed that four undercover officers were engaged in "Operation Foil" which had been planned by Lothian and Borders Police towards the end of 1998 in order to combat a perceived increase in serious drug offences in the Lothians including Edinburgh. Of particular concern was the perceived increase in the availability of the Class A drug, heroin. The undercover officers were to engage in an elaborate subterfuge in order to gain the confidence of persons with whom they came into contact and thus infiltrate the drug dealing community. The hope was that by networking at a low level of drug dealing initially they would be in a position to move upwards in the chain of supply. The subterfuge involved the undercover officers posing as dealers in stolen or reset goods. The officers were also authorised to buy drugs from those who seemed willing to sell, but they were clearly instructed in accordance with certain guidelines not to incite the commission of offences which would not otherwise be committed. As the Sheriff explains, it was in these circumstances that certain officers came into contact, at various times and in various ways, with the appellant. At the start of the whole operation, however, there were no specified individual persons who were to be targeted, but only a general group labelled "drug dealers".

[4] One of the undercover officers who gave evidence was known as "Sean". He secured rented accommodation in the Prestonfield area of Edinburgh which was to be used as a base from which the operation would be carried out. He and other officers involved in the operation began to frequent the Grey Horse Pub in Dalkeith Road, Edinburgh. It was there that he met the appellant. He informed the appellant that the house he was renting was in a mess and that he was looking for a painter and decorator. "Sean" at this stage had, apparently, formed no suspicion about the appellant being engaged in any criminal activity. The appellant informed "Sean" that he could assist him in painting and decorating the flat and provided him with his name and address and mobile telephone number. There was no conversation about, or reference to, drugs. Some two weeks later "Sean", on returning to the rented flat, found a message on his telephone line asking him to ring the appellant's mobile telephone. Eventually contact was made between the pair and arrangements were made for the appellant to call at the flat the following morning in order to take measurements for painting. When the appellant arrived at the flat "Sean " showed him the bathroom and asked him how much his painting work would cost. The appellant offered to do the work for £30 and "Sean" accepted that offer.

[5] Another undercover officer known as "Johnny" was present in the flat at this time. The appellant and "Sean" joined "Johnny" in the sitting room. There were "Rizzla" papers and tobacco on the table and mantelpiece. The appellant spontaneously, without any mention having been made by either of the officers about drugs, asked "Sean" and "Johnny" "Do you use puff?", which they understood to mean cannabis. "Sean" replied that they did but they did not have any at the moment. In response the appellant said "I can get you as much as you want". "Johnny" asked how much a quarter ounce of cannabis would cost. The appellant said £30 but advised the officers that he did not carry with him the telephone number of his dealer. "Johnny" said that he had a car and could drive him to the address if he wanted to go. Neither "Sean" nor "Johnny" however, asked the appellant to acquire drugs.

[6] Following directions given to him by the appellant "Johnny" drove the appellant to a block of flats. The appellant said that he knew very well the woman from whom he intended to purchase drugs and that he had bought cannabis from her over a period of time. The appellant and "Johnny" went to a flat in the block of flats and knocked on the door. A woman answered. The woman asked the appellant how much drugs he wanted. "Johnny" formed the view that the woman knew the appellant well and that it was common for him to go there to buy drugs. The woman said that she was unable to cut the lump of cannabis, which she had in her possession, but she offered to call her brother so that he could cut the block for her. She told the appellant to return later for that purpose. "Johnny" told the appellant that he would collect him from his flat an hour later to return to the woman's flat. As arranged, "Johnny", accompanied, however, by "Sean", collected the appellant from his flat and drove to the woman's house. "Sean" remained in the car while the appellant and "Johnny" returned to the flat. Some little time later the woman's brother arrived. The woman asked if anyone wanted a small piece of cannabis resin that she had. "Johnny" said he did and handed her £30, assuming that that was the agreed price. The appellant asked the woman if it would be all right for "Johnny" to visit her in the future, without him and the woman said that that was fine as she always had "gear" meaning cannabis resin.

[7] A few days later "Sean" rang the appellant's mobile telephone and made arrangements for the appellant to see another undercover officer known as "Rob" at the flat two days later so that the appellant could start to decorate. "Rob" had not met the appellant previously but had been informed that he had taken "Johnny" to buy cannabis. When the appellant turned up at the flat "Rob" let him into the flat and in the course of an ensuing conversation "Rob" asked the appellant if he could take him to purchase cannabis. The appellant said there would be no problem about that, referring to the woman, previously mentioned, who he said dealt for her brother and who charged £30 for a quarter ounce. In the afternoon the appellant left the flat with "Rob" in order to purchase wallpaper. En route "Rob" said he used to buy heroin for his girlfriend from someone who lived in a flat near the shop where they were to purchase the wallpaper. The appellant said that he was not into "smack (heroin)" but that he could get it for people. Wallpaper was purchased and the two men returned to the flat where the appellant continued to decorate. Later that day the appellant and "Sean" and "Rob" went to the Grey Horse pub where the appellant said that he would be meeting someone to "sort out" the heroin. None of the police officers had asked the appellant to acquire heroin for them. En route to the pub the appellant said he could also get amphetamine if they were interested. Neither of the officers had mentioned amphetamine. "Sean" indicated an interest. Prior to leaving the pub the appellant passed to "Sean" a small piece of cannabis resin by way of a gift saying that "Sean" could have it for a smoke later. A few days later "Sean" phoned Smith from the public house on his mobile. Smith asked "Sean" if he was "ok for gear (cannabis)". "Sean" said he was out of it as the woman who had been supplying it had had none when he called. The appellant said that he would call at the flat later in the afternoon to discuss "something" which "Sean" took to be something to do with cannabis. When he called there was a discussion as to what had happened regarding the heroin mentioned by the appellant previously. He said that any business with heroin was off and "Sean" made no attempt to pursue this matter any further. The appellant however went on to offer to "sort Sean out" with regard to amphetamine by taking "Sean", the following day, to a dealer in the Southhouse area of Edinburgh. The following day the appellant phoned Sean at his flat and said that he was at "Rolly's" flat which was above the flat belonging to the woman previously mentioned, and that "Rolly" could obtain amphetamine. "Sean" agreed to meet the appellant at Southhouse and the appellant told him to sound the horn of his vehicle on arrival. "Sean" did as he was asked and the appellant introduced him to "Rolly". On the following day the appellant phoned "Rob" to tell him he would take him to "Rolly's" the next day. On the following morning, the appellant called "Rob" to say he would take him to "Rolly's" to get a wrap of "speed" (amphetamine), but that "Rolly" owed "Sean". What had happened was that, following the appellant's introduction of "Sean" to "Rolly", "Rolly" had supplied "Sean" with amphetamine but there was one "wrap" missing from the amount which had been supplied for £20. Over a significant period of time there continued to be dealings between the undercover officers in relation to drugs transactions with persons to whom they had been introduced, directly, or indirectly, by the appellant.

The Ground of Appeal

[8] The remaining ground of appeal is in the following terms:

"The actions of the police officers amounted to entrapment. That being so the prosecution was incompatible with the appellant's right to a fair hearing under Article 6(1) of the Convention. Reference is made to s.57(2) of the Scotland Act 1998 and s.6(1) of the Human Rights Act 1998.

Separatim the Sheriff should not have permitted the prosecution to proceed and should have deserted the indictment simpliciter"

In her original report to this court the Sheriff in response to that ground of appeal said, inter alia:

"It seems to me that the crucial point in this argument is that of predisposition. It is abundantly clear that the undercover officers would have no justification for proceeding as they did, against any of the four accused, unless it could be shown (a) that each would have otherwise and in any event committed the offence of being concerned in the supply of a controlled drug to another person when confronted with a willing recipient; and (b) that no pressure, encouragement or inducements on the part of the undercover officers caused them to do so."

[9] Before this court Mr Shead, for the appellant, put the point to be taken briefly. It was that there was no evidence that, prior to the initial chance encounter between the appellant and the undercover agent, the appellant had been dealing in drugs. There was no evidence of a predisposition to indulge in such behaviour on the appellant's part. There was no evidence that the objective of the undercover operation had, as one of its targets, the appellant or that the police officers had any information to lead them to suspect that the appellant was engaged in dealing in controlled drugs. The exercise upon which the officers were engaged was primarily concerned with the trafficking of heroin at a higher level than anything the appellant had been indulging in. But for the response to the appellant's remarks by the police officers in question the offences of which he was charged would not have occurred. The officers had crossed the line, it was submitted, from what was legitimate activity on their part to what was illegitimate, (reference was made to the decision in Brown v HM Advocate 2002 SCCR 684) and this, accordingly, meant that the appellant had been a victim of entrapment so that his trial had been deprived of the fairness required by Article 6 of the European Convention on Human Rights. Reference was also made to the case of Ramanauskas v Lithuania (Application Number 74420/01) Judgment 5 February 2008.

[10] In reply the Advocate depute submitted that the appellant, on the evidence, had himself initiated a course of dealing in drugs when there had been no incitement, or inducement, at all by the police officers which resulted in him doing so. It was quite true that the appellant was not a suspect and no inquiry was being aimed at him when he initiated the activities in respect of which he was ultimately charged and found guilty. That had arisen as a result of a chance encounter between himself and the police officers. The officers in question did not, on the evidence, set things in motion by seeking drugs from him. He spontaneously offered to obtain drugs for them. In all the circumstances there was nothing illegal, or improper, in what the police officers had done which amounted to entrapment and rendered the trial unfair.

Decision

[11] We have no hesitation in refusing this appeal. On the facts of this case there never was any basis for contending that the police officers in question were engaged in any activity, at any stage, which could, in any true sense of the term, be called entrapment. In the case of Ramanauskas referred to above the European Court of Human Rights, in reviewing the law on the subject emphasised that undercover operations of the kind that occurred in the present case were not by themselves illegal. At paragraph 49 the court observed as follows:

"The Court observes at the outset that it is aware of the difficulties inherent in the police's task of searching for and gathering evidence for the purpose of detecting and investigating offences. To perform this task, they are increasingly required to make use of undercover agents, informers and covert practices, particularly in tackling organised crime and corruption."

At paragraph 51 it continued:

"....the use of special investigative methods - in particular, undercover techniques - cannot in itself infringe the right to a fair trial. However, on account of the risk of police incitement entailed by such techniques, their use must be kept within clear limits."

At paragraph 55 the court went on to define the kind of conduct by police officers which would not be acceptable. After having referred to the particular circumstances of the case before it, the Court, at paragraph 68, concluded that in the case it was dealing with "the actions of the individuals (police officers) in question went beyond the mere passive investigation of existing criminal activity." At paragraph 73 the court concluded as follows:

"In conclusion, while being mindful of the importance of the difficulties of the task of investigating offences, the Court considers, having regard to the foregoing, that the actions of AZ and VS had the effect of inciting the applicant to commit the offence of which he was convicted and that there is no indication that the offence would have been committed without their intervention. In view of such intervention and its use in the impugned criminal proceedings, the applicant's trial was deprived of the fairness required by Article 6 of the Convention."

[12] In the present case, in our opinion, there was no evidence that the police officers had induced or incited the appellant to deal in drugs. He simply took the opportunity to indulge in such activity when he thought that that opportunity presented itself to him. He initiated the course of conduct in question without it having been proposed to him. In effect, over a period of time, he offered, spontaneously, to put the police officers in contact with suppliers of illegal drugs. By his actual conduct, and his obvious knowledge as to where drugs could be obtained, and from whom, it seems clear to us that the appellant would have offered the same services to anyone else whom he might have thought was interested in obtaining illicit drugs. The police officers cannot be said to have set out to expose and provoke simply a latent predisposition to engage in such activity. Had the police officers simply been civilians and not police officers, then, having regard to the evidence, we consider that the appellant would have acted in exactly the same way as he did. The circumstance that the individuals in question were engaged on an undercover operation was purely coincidental and was not the cause of the appellant acting as he did. Once he had spontaneously offered to supply illegal drugs to the police officers they were, in our judgment, entitled to allow matters to proceed to see to what extent the appellant was involved in this activity, and indeed, to discover if he may lead them to others engaged in that activity. Indeed it might be said that it was their duty to do so in the exercise of their responsibilities in the public interest.

[13] For the foregoing reason there was no breach of Article 6 in the circumstances of this case and the appeal falls to be refused.