Redacted RIPSA CHIS Authorisations: Admissibility Proven by Redacted Warrant Plus Direct-Link Evidence

1) Introduction

In Appeal under section 74(1) of the Criminal Procedure (Scotland) Act 1995 by His Majesty's Advocate against Sean Docherty ([2026] HCJAC 37, High Court of Justiciary Appeal Court, 28 August 2025), the Crown appealed a sheriff’s pre-trial ruling excluding evidence from an undercover police officer (“Police Officer William”) in an online child-abuse investigation. The sheriff held the officer’s evidence inadmissible because the Crown had not produced an unredacted authorisation under the Regulation of Investigatory Powers (Scotland) Act 2000 (“RIPSA”) and, due to redactions, could not prove the officer was within the scope of any valid authorisation.

The respondent faces charges under the Sexual Offences (Scotland) Act 2009 (attempted indecent communication with a child; attempting to cause a child to view a sexual image) and the Civic Government (Scotland) Act 1982 (attempting to obtain indecent photographs by internet searching). The “child” personas were in fact undercover officers. The appeal concerned only the authorisation position for “Police Officer William”; special measures had already been granted requiring the officers to be referred to by pseudonyms.

The key issue was evidential and practical: can the Crown prove lawful RIPSA authorisation for a covert human intelligence source (CHIS) where the written authorisation is produced only in redacted form to protect undercover identities?

2) Summary of the Judgment

The Appeal Court (Lord Pentland (Lord Justice General), Lord Armstrong, Lord Clark) allowed the appeal. It held that:

  • The combination of (i) the redacted written RIPSA authorisation, certified as a production, and (ii) the unchallenged evidence of the covert operations manager (a Detective Inspector) who prepared/presented the application and had seen the unredacted authorisation, was sufficient to prove that “Police Officer William” was properly authorised.
  • The sheriff had taken an over-technical approach to admissibility and had misconstrued the role of the trial court: it was not to conduct “judicial oversight” of the authorisation process but to determine, on the evidence led, whether authorisation existed.
  • The case was distinguishable from Henderson & Marnoch v HM Advocate [2005] HCJAC 47; 2005 1 JC 301, where no written authorisation was produced and the relevant witness had little direct knowledge.
  • There were compelling reasons for redacting undercover officers’ unique reference numbers (URNs), including officer/family safety and protection of operational capability; in these circumstances it would be wrong to insist on production of an unredacted authorisation.

Having decided the authorisation was adequately proved, the court did not require to address Lawrie v Muir 1950 JC 19.

3) Analysis

A. Statutory Framework: RIPSA and Authorising Undercover Officers

The judgment carefully situates the dispute in RIPSA’s structure:

  • RIPSA regulates directed surveillance, intrusive surveillance, and the conduct/use of CHIS (RIPSA s 1(1)).
  • A CHIS includes a person who covertly establishes/maintains a relationship to obtain/disclose information (s 1(7)).
  • Conduct is “lawful for all purposes” if properly authorised and conducted in accordance with authorisation (s 5).
  • CHIS authorisation requires necessity and proportionality, plus management/record-keeping safeguards (s 7).
  • Where a police officer is used as a CHIS (“relevant source”), the 2010 Order requires authorisation by an Assistant Chief Constable (or higher), with specified urgent-case arrangements; the 2014 Order requires notice to a judicial commissioner.

Importantly, the appeal was not about whether such an authorisation could legally be granted for an online undercover operation. It was about proof—how authorisation is to be evidenced in court when operational security demands redaction.

B. The Evidential Dispute: “Best Evidence”, Redaction, and Secondary Proof

The sheriff treated the redacted authorisation as “ex facie meaningless” because identifying details (notably URNs) were removed, and he considered that only the authorisation itself could prove who was authorised. The Appeal Court rejected that framing.

The Appeal Court’s central holding is a practical evidential rule:

Where identity-protecting redactions are justified, the Crown may prove RIPSA authorisation by producing the redacted authorisation plus credible, direct-link testimony from a witness with first-hand operational knowledge who has seen the unredacted document and can connect the undercover pseudonym used in proceedings to the authorised operative(s).

This is anchored in orthodox Scottish evidence principles rather than any special “RIPSA-only” rule:

  • The court relies on Macleod v Woodmuir Miners Welfare Society Social Club 1961 JC 5 for the proposition that secondary evidence is competent where it is not reasonably practicable and convenient to produce primary evidence.
  • It reinforces a modern, anti-formalist approach to admissibility from Lord Advocate's Reference No 1 of 2023 [2023] HCJAC 40; 2024 JC 140: admissibility should not become over-technical; evidence rules serve fair trial and the public interest.

The “secondary evidence” here was not vague hearsay about an authorisation’s existence; it was testimony from the officer who prepared and presented the application, had direct familiarity with the authorisation’s contents, explained why redactions were necessary, and confirmed that “Police Officer William” was among the authorised undercover officers.

C. Precedents Cited and How They Were Used

1. Henderson & Marnoch v HM Advocate [2005] HCJAC 47; 2005 1 JC 301

Role in the present case: the sheriff treated Henderson as requiring production of the authorisation as the best (and “only admissible”) evidence of its terms. The Appeal Court held that was a misapplication.

How the Appeal Court distinguished it:

  • In Henderson, no written authorisation was produced at all.
  • The witness in Henderson had little direct knowledge of the authorisation (he had only seen it later and could not recall when).
  • Here, a written authorisation was produced (albeit redacted), it identified the operation, and it was supported by direct, specialist evidence from the officer who prepared the application.

The court effectively recasts Henderson as a case about evidential insufficiency on its facts, not a rigid rule that unredacted authorisations are always required.

2. Lord Advocate's Reference No 1 of 2023 [2023] HCJAC 40; 2024 JC 140

Role: provided doctrinal support for avoiding an “artificially technical” approach. The Appeal Court used it to emphasise that admissibility is a tool to focus on real issues and secure fairness in both the accused’s and public interest. This was deployed to rebut the sheriff’s insistence on an unredacted document as a condition of admissibility.

3. Macleod v Woodmuir Miners Welfare Society Social Club 1961 JC 5

Role: the leading authority in the judgment for when secondary evidence may replace primary evidence. The court relied on it to justify accepting the Detective Inspector’s evidence to bridge the gap created by justified redactions.

4. Lawrie v Muir 1950 JC 19

Role: debated by parties as a potential “excusal” route if there were an irregularity. The court did not decide the point, holding it unnecessary once authorisation was proved. The practical effect is that, in this scenario, the court treated the issue as one of proof of lawful authority, not of excusing unlawfulness.

5. Other authorities mentioned

  • Ruby Properties (Scotland) Ltd v Watt and another [2025] CSOH 61: cited for the general proposition that credible, reliable evidence can prove facts even if “better” evidence might exist.
  • McIver v Mackenzie 1942 JC 51: referenced in submissions on whether absence of primary evidence causes prejudice and whether evidence is essential.
  • Smith v HM Advocate 1952 JC 66 and Johnston v HM Advocate [2006] HCJAC 30; 2006 SCCR 236: relied upon by the respondent to stress the police’s constitutional subordination to the Crown and the Crown’s responsibility for prosecution decisions. The Appeal Court treated these concerns as “beside the point” for the sheriff’s task, which was to decide admissibility on the evidence led.

D. Legal Reasoning: What the Court Said the Sheriff Had to Decide

The Appeal Court narrowed the question to a single factual/legal inquiry: was “Police Officer William” properly authorised under RIPSA to engage in the relevant conduct?

On that question, the court held:

  • The redactions (particularly URNs) were justified by unchallenged evidence of operational risk and personal safety.
  • The court was entitled to accept unchallenged, credible testimony linking the pseudonym used in proceedings to the authorised operative.
  • Insisting on disclosure of URNs (or an unredacted authorisation) would be “contrary to the interests of justice” given the public interest in effective investigation of online child abuse and protection of undercover officers.

The sheriff’s concern that the Crown had not itself seen the unredacted authorisation was treated as irrelevant to admissibility: the trial court assesses the evidential record before it, not the adequacy of internal Crown–police disclosure arrangements as a precondition to leading evidence.

E. Impact

The decision is likely to influence Scottish criminal practice in three connected ways:

  1. RIPSA proof in sensitive operations: it affirms that the Crown can establish CHIS authorisation without disclosing identifying markers (such as URNs), provided there is a credible evidential “link” from a properly placed witness.
  2. Operational security and open justice balance: it prioritises protective measures for undercover officers where disclosure could permit mapping of deployments and endanger officers and families, while preserving the accused’s ability to challenge the undercover evidence “on its merits” at trial.
  3. Limiting Henderson-style objections: it confines Henderson & Marnoch to cases where the authorisation is absent and/or the witness lacks direct knowledge, rather than treating it as a rigid best-evidence requirement applicable even where redaction is compellingly justified.

4) Complex Concepts Simplified

  • CHIS (Covert Human Intelligence Source): someone who covertly forms/uses a relationship to obtain or disclose information. Undercover police officers can be CHIS.
  • Directed vs intrusive surveillance: intrusive surveillance is the more strictly regulated category (e.g., in residential/private vehicle contexts) and requires higher-level authorisation and judicial commissioner approval. This case concerned CHIS authorisation rather than intrusive surveillance.
  • URN (Unique Reference Number): an internal identifier assigned to trained/authorised undercover operatives. The court accepted that disclosing URNs could allow outsiders to correlate court appearances and operations, creating safety and operational risks.
  • Primary vs secondary evidence (“best evidence” in practice): primary evidence is the original document; secondary evidence is other proof of its contents (such as testimony). Scottish law permits secondary evidence where producing the original is not reasonably practicable/convenient—here, because unredacted production would compromise safety and operations.
  • Section 74(1) appeal: a Crown appeal against certain pre-trial rulings (including admissibility decisions) in solemn proceedings.

5) Conclusion

[2026] HCJAC 37 establishes a clear, practice-focused approach to RIPSA authorisation proof in undercover policing cases: where operationally necessary redactions protect undercover identities, the court may accept a redacted authorisation supported by direct-link evidence from a knowledgeable officer to prove the accused was investigated by a properly authorised CHIS. The decision narrows the reach of Henderson & Marnoch v HM Advocate, reinforces the modern non-technical approach to admissibility endorsed in Lord Advocate's Reference No 1 of 2023, and strengthens the legal footing for covert online child-protection operations while preserving trial scrutiny of the undercover evidence itself.