New Judgment: Kinloch v Her Majesty’s Advocate  UKSC 62
19 Wednesday Dec 2012
On appeal from the High Court of Justiciary (Scotland)
The appellant had been monitored and followed by the police as he was suspected of the acquisition, possession, use, and concealment of criminal property.
The appellant raised a dev
olution minute, arguing that the police had acted unlawfully because they had failed to obtain authorisation to conduct covert surveillance on him under the Regulation of Investigatory Powers (Scotland) Act 2000, and that the surveillance was inadmissible as evidence. This was refused, and the appellant maintained that the refusal of the devolution minute breached his right to a fair trial under ECHR, art 6, and that the observations of the police breached art 8.
The Supreme Court unanimously dismissed the appeal. There was no interference with the appellant’s rights under arts 6 and 8. The devolution minute did not raise a devolution issue, and the Supreme Court asserted that except in regard to devolution issues as defined in the Scotland Act 1998, orders of the High Court of Justiciary are final and not subject to review by other courts. Regarding art 8, notes of the appellant’s movements in public were kept by the police in a covert manner as part of a planned operation. The appellant did not have a reasonable expectation of privacy – he engaged in activities in places where he was open to public view and took the risk of being seen. As there was no breach of art 8 there could be no breach of art 6, since the only ground for arguing that would rest on a breach of art 8.