Factual and Procedural Background
The Appellant challenged a sheriff’s pre-trial ruling that evidence from an undercover police officer involved in investigating online child abuse was inadmissible because the officer had not been properly authorised under the Regulation of Investigatory Powers (Scotland) Act 2000 (RIPSA). [1]
The Respondent faced charges concerning alleged online communications and attempted sexual offending involving undercover officers. This appeal concerned only the authorisation of the undercover officer referred to in the charges as “Police Officer William”. [2]
The court had previously ordered that the undercover officers be identified by pseudonyms to protect their identities. [3]
The Respondent challenged the admissibility of the officer’s evidence, arguing that the Crown could not prove proper RIPSA authorisation because the authorisation document was redacted and no unredacted copy had been produced. After hearing evidence from a covert operations manager, the sheriff upheld the challenge and granted leave to appeal. [4][5]
Legal Issues Presented
- Whether the redacted RIPSA authorisation, together with the evidence of the covert operations manager, sufficiently proved that the undercover officer had been authorised to act as a covert human intelligence source. [6][7]
- Whether the unredacted authorisation was required as the primary or only admissible evidence of the authorisation. [8][9]
- Whether any irregularity in the authorisation could be excused under Lawrie v Muir. [10][11]
Arguments of the Parties
Appellant’s Arguments
- The redacted authorisation and the covert operations manager’s evidence were sufficient to establish that the undercover officer had been authorised. [6]
- The case was materially different from Henderson v HM Advocate because a written authorisation, authentication certificate, and reliable evidence from an officer with direct knowledge were available. [12][13]
- Evidence law is practical, and insisting on an unredacted document would be unnecessarily technical. [14]
- Secondary evidence was competent where there were good reasons not to produce primary evidence, including risks to undercover officers, their families, police methods, and ongoing operations. [15][16]
- Any irregularity should be excused because the officer acted in good faith, the activities were not intrusive surveillance, and the Respondent could challenge the evidence and its fairness at trial. [10][17]
Respondent’s Arguments
- The constitutional relationship between the Crown and the police required the Crown to obtain and examine the unredacted authorisation. [18][19]
- The redactions made the document effectively meaningless, and judicial oversight required proof from the written authorisation itself that the officer had been authorised. [20][21]
- The document existed and was held by the police; its non-production was therefore not justified by unavailability. [22]
- The covert operations manager’s evidence was merely his account of the document’s contents and could not establish its precise terms. [23]
- The irregularity could not be excused under Lawrie v Muir because the Crown could have secured the unredacted document. [11]
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Henderson & Marnoch v HM Advocate [2005] HCJAC 47; 2005 1 JC 301 |
The circumstances in which a written authorisation is the best and potentially only admissible evidence of authorisation. |
The Court distinguished the case because here a redacted authorisation existed and a witness with direct knowledge linked it to the undercover officer. [24][25] |
| Lord Advocate’s Reference (No 1 of 2023) [2023] HCJAC 40; 2024 JC 140 |
Admissibility should not be approached in an over-technical or theoretical manner; evidence law serves a fair trial and the public interest. |
The sheriff had adopted an artificially technical approach by rejecting evidence that, realistically assessed, showed proper authorisation. [26][27] |
| Ruby Properties (Scotland) Ltd v Watt and another [2025] CSOH 61 |
Credible and reliable evidence supporting an inference will generally prove the relevant fact. |
The principle supported reliance on the covert operations manager’s accepted evidence. [28] |
| Macleod v Woodmuir Miners Welfare Society Social Club 1961 JC 5 |
Secondary evidence is competent where producing primary evidence is not reasonably practicable and convenient. |
The Court held that the witness’s evidence was competent because producing the unredacted authorisation would risk officer safety and ongoing operations. [15][29][30] |
| McIver v Mackenzie 1942 JC 51 |
Consideration of whether evidence is essential and whether its absence prejudices the accused. |
The Appellant relied on this principle in arguing that secondary evidence should be accepted. [15] |
| Lawrie v Muir 1950 JC 19 |
Principles concerning whether evidential irregularities may be excused. |
The Court did not consider the issue because it concluded that the evidence established proper authorisation and that no irregularity required excusal. [31] |
| Smith v HM Advocate 1952 JC 66 |
The police’s subordinate relationship to the public prosecutor. |
The Respondent relied on the case in arguing that the Crown should have obtained and examined the unredacted authorisation. [18] |
| Johnston v HM Advocate [2006] HCJAC 30; 2006 SCCR 236 |
The relationship between the police and the Crown in the investigation and prosecution of crime. |
The Respondent cited the case in support of the Crown’s responsibility to scrutinise the police material. [18] |
Court’s Reasoning and Analysis
RIPSA regulates directed surveillance, intrusive surveillance, and the conduct and use of covert human intelligence sources. The case concerned the use of a covert human intelligence source. Such conduct is lawful where a valid authorisation confers entitlement to engage in it and the conduct complies with that authorisation. [32][33][34]
The redacted authorisation was authenticated, signed by the senior authorising officer, effective during the relevant period, and related to a specific operation involving undercover officers gathering intelligence and evidence concerning child sexual abuse and exploitation. It addressed the statutory requirements for covert human intelligence sources. [35][36][37]
The reasons for redacting the officers’ identification information were compelling. Disclosure could risk the physical safety and mental health of officers and their families, expose police methods, and prejudice ongoing operations. [38][39][40]
The covert operations manager had prepared and presented the authorisation application, had seen the unredacted document, understood the redactions, and gave uncontested evidence that the undercover officer was one of the authorised officers. This supplied a clear link between the redacted document and the officer. [7][25][41]
The sheriff’s concern that the Crown had not itself seen the unredacted document was not determinative. The sheriff’s task was to assess the evidence led, not to conduct general judicial oversight of the authorisation process. The witness’s explanations were clear, credible, reliable, and unchallenged. [42][43]
The Court distinguished Henderson because, unlike that case, a written authorisation had been produced and the relevant witness had direct knowledge of its terms and of the authorisation process. The document also identified the specific operation, explained its nature and purpose, and showed that it was in force when the relevant conduct occurred. [24][26]
The Court held that primary evidence was not essential in these circumstances. The redacted authorisation and the specialist witness’s direct evidence constituted the best evidence reasonably available, and producing the unredacted document would have created unacceptable risks. [44][31]
The Court considered that the Respondent would suffer no prejudice because he remained entitled to challenge the undercover officer’s evidence on its merits at trial. It therefore did not need to address the alternative arguments under Lawrie v Muir. [31][45]
Holding and Implications
The appeal was allowed. The Court held that the combination of the redacted RIPSA authorisation and the uncontested evidence of the covert operations manager convincingly established that the undercover officer had been properly authorised. [7][46]
The direct consequence was that the sheriff’s ruling excluding the officer’s evidence could not stand. The evidence remained capable of being challenged at trial on its merits. The opinion did not state that a broader new precedent was established. [31][46]