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No article 8 breach by surveillance in public: Supreme Court

19 December 2012

Police surveillance of a suspect's movements in public over a period of hours did not amount to a breach of his article 8 right to privacy or result in inadmissible evidence, the UK Supreme Court ruled today.

Five judges unanimously dismissed an appeal by James Kinloch, who was convicted of money laundering offences in Glasgow Sheriff Court on evidence including that of a police surveillance operation which the Crown conceded was not authorised under the Regulation of Investigatory Powers Act 2000. In admitting the evidence the sheriff held he was bound by the decision in Gilchrist v HM Advocate in 2005. The High Court refused leave to appeal, but then granted leave to appeal to the Supreme Court.

Giving the court's opinion, Lord Hope said that it was only with considerable hesitation that the court had heard the appeal. The proper course might well have been to dismiss it as incompetent, as the devolution minute, referring to whether the police acted in a manner incompatible with the appellant's Convention rights rather than to any act of the Lord Advocate, did not appear to raise a devolution issue. However the appellant had obtained leave and the real issue was the correctness of Gilchrist.

Although the Strasbourg court, he continued, had not yet considered the point, it could not reasonably be suggested that a police officer who came upon a person who had committed a crime in a public place and simply noted down his observations in his notebook was interfering with the person’s article 8 right. This case concerned a planned operation over a period of hours in a covert manner, but there was nothing to suggest that the appellant could reasonably have had
any expectation of privacy. He engaged in his activities in places where he was open to public view, and took the risk of being seen and of his movements being noted down. "The criminal nature of what he was doing, if that was what it was found to be, was not an aspect of his private life that he was entitled to keep private", Lord Hope said.

There were therefore no grounds for holding that the appellant's article 8 rights had been infringed, and that was the only basis for arguing that there had been a breach of the article 6 right to a fair trial.

Click here to access the judgment.


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Martin Morrow

Friday December 21, 2012, 16:55

An eminently sensible decision from the Supreme Court.

Of more interest however was that the court felt able to resolve the issue - even though it had not been specifically considered in Strasbourg.

Such a pity that this bold proposition was not adopted in the Sons of Cadder cases last year - except by Lord Kerr.