Kinloch v Her Majesty’s Advocate: SC 19 Dec 2012

The appellant said that the police officers had acted unlawfully when collecting the evidence used against him, in that the information used to support the request for permission to undertake clandestine surveillance had been insufficiently detailed, and that the police had acted in breach of his article 8 rights in obtaining evidence by surveillance since they had failed to obtain authorisation for the surveillance under the Regulation of Investigatory Powers (Scotland) Act 2000.
Held: The appeal was dismissed. Strictly, the appeal which challenged the action of police officers did not raise a devolution issue, since such were limited to actions of members of the Scottish government.
Even so, there had been no interference with the appellant’s article 6 or 8 rights. The fact that evidence is irregularly obtained because there is no authorisation under the 2000 Act does not of itself make that evidence inadmissible at common law. Nor does the fact that the evidence is obtained in breach of article 8 necessarily mean that it would be incompatible with article 6 for that evidence to be led at the trial. It could not reasonably be suggested that a police officer who came upon a person who has 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. In this case, notes of the Appellant’s movements in public over several hours were covertly made by the police in a planned operation.
Lord Hope DPSC said: ‘There is nothing in the present case to suggest that the appellant could reasonably have had any [reasonable] expectation of privacy. He engaged in these activities in places where he was open to public view by neighbours, by persons in the street or by anyone else who happened to be watching what was going on . . The criminal nature of what he was doing, if that is what it was found to be, was not an aspect of his private life that he was entitled to keep private . . ‘

Lord Hope, Deputy President, Lady Hale, Lord Mance, Lord Kerr, Lord Reed
[2012] UKSC 62, 2013 GWD 1-18, [2012] WLR(D) 385, [2012] 2 WLR 141, UKSC 2011/0251
Bailii, Bailii Summary, SC, SC Summary
Proceeds of Crime Act 2002, Regulation of Investigatory Powers (Scotland) Act 2000, European Convention on Human Rights 8, Scotland Act 1998
CitedGary Follen v Her Majesty’s Advocate PC 8-Mar-2001
PC High Court of Justiciary (Scotland) The defendant said that a trial under the section infringed his right to a fair trial, because of a ten month delay by the prosecutor. On arrest he had been recalled to . .
CitedKhan v The United Kingdom ECHR 12-May-2000
Evidence was acknowledged to have been obtained unlawfully and in breach of another article of the Convention. The police had installed covert listening devices on private property without the knowledge or consent of the owner. UK national law did . .
CitedMcGibbon and Corstorphine v Her Majesty’s Advocate HCJ 19-Feb-2004
It was conceded that there had been a breach of article 8 in the obtaining of covert video and audio recordings of the appellants’ incriminating conversations.
Held: If there was a breach by the police of article 8, it did not follow that the . .
CitedLawrie v Muir HCJ 23-Nov-1949
The prosecution case was said to have been based on evidence acquired during an unlawful search of the defendant’s premises.
Held: An irregularity in the method by which evidence has been obtained does not necessarily make that evidence . .
CitedMalone v The United Kingdom ECHR 2-Aug-1984
The complainant asserted that his telephone conversation had been tapped on the authority of a warrant signed by the Secretary of State, but that there was no system to supervise such warrants, and that it was not therefore in ‘accordance with law’. . .
CitedAmann v Switzerland ECHR 16-Feb-2000
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 8 with regard to interception of telephone call; Violation of Art. 8 with regard to creation and storing of information card; Preliminary objection . .
CitedRotaru v Romania ECHR 4-May-2000
Grand Chamber – The applicant, a lawyer, complained of a violation of his right to respect for his private life on account of the use against him by the Romanian Intelligence Service of a file which contained information about his conviction for . .
CitedHoekstra and Others v Her Majesty’s Advocate High Court of Justiciary PC 26-Oct-2000
The Privy Council has no standing to act as a general court of appeal on Scottish law. The jurisdiction given to it by the Act, was limited as prescribed by the Act to what are called devolution issues, issues related to the acts of devolution. Not . .
CitedPG and JH v The United Kingdom ECHR 25-Sep-2001
The use of covert listening devices within a police station was an infringement of the right to privacy, since there was no system of law regulating such practices. That need not affect the right to a fair trial. The prosecution had a duty to . .
CitedPerry v The United Kingdom ECHR 17-Jul-2003
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 8 ; Non-pecuniary damage – financial award
The claimant had been arrested, then released to attend an identification parade. Several attempts . .
CitedGilchrist and Another v Her Majesty’s Advocate HCJ 24-Aug-2004
The defendants were to stand trial for drugs offences, but raised a devoltion issue as to the use of police surveillance products gathered under the 2000 Act. They said that the authorisation to carry out the surveillance had been granted on . .
CitedBykov v Russia ECHR 10-Mar-2009
. .
CitedBykov v Russia ECHR 10-Mar-2009
. .

Cited by:
CitedCatt and T, Regina (on The Applications of) v Commissioner of Police of The Metropolis SC 4-Mar-2015
Police Data Retention Justifiable
The appellants challenged the collection of data by the police, alleging that its retention interfered with their Article 8 rights. C complained of the retention of records of his lawful activities attending political demonstrations, and T . .
CitedZXC v Bloomberg Lp CA 15-May-2020
Privacy Expecation during police investigations
Appeal from a judgment finding that the Defendant had breached the Claimant’s privacy rights. He made an award of damages for the infraction of those rights and granted an injunction restraining Bloomberg from publishing information which further . .

Lists of cited by and citing cases may be incomplete.

Criminal Evidence, Constitutional, Human Rights, Police

Leading Case

Updated: 10 November 2021; Ref: scu.467184