Scottish High Court of Justiciary Decisons

HIGH COURT OF JUSTICIARY
	[2009] HCJAC INFO OPINION OF LORD MACKAY OF DRUMADOON in causa HER MAJESTY'S ADVOCATE against (1) MARSHALL NEIL CRAIG RONALD (2) ROBERT STUART GRAHAM (3) JOHN GERARD DOYLE (4) CALLUM SYMON JONES (5) DAVID JAMES BOYCE _______

Act: Findlay QC et McPhie (First Accused)

Act: Keenan et Carson, Solicitor Advocates (Second Accused)

Act: Smyth et Lavelle, Solicitor Advocates (Third Accused)

Act: The Dean of Faculty QC et Dunn, (Fourth Accused)

Act: McMenamin QC et Niven-Smith (Fifth Accused)

Alt: Mackay, AD, et MacIver

This Opinion is issued following upon Continued Preliminary Hearings in relation to pleas in bar of trial lodged on behalf of each of the accused in respect of which an Order in terms of section 4(2) of the Contempt of Court Act 1981 was pronounced on 30 March 2009. That Order postpones publication of any report of the Continued Preliminary Hearings until after the conclusion the trial or the earlier termination of any proceedings under the indictment the accused face.

30 April 2009

Introduction

[1] On 27 August 2003, a painting attributed to Leonardo da Vinci and known as "The Madonna with the Yarnwinder" ("the stolen painting") was stolen during a robbery carried out at Drumlanrig Castle, Thornhill. The stolen painting has been owned by the Buccleuch family over many generations. On 27 August 2003 it was owned by the former Duke of Buccleuch and Queensberry, who subsequently died during September 2007.

[2] Immediately following the robbery, the Dumfries and Galloway Police Force embarked upon a criminal investigation into the robbery and instituted enquiries designed to recover the stolen painting. A "substantial reward" was offered and publicly advertised. Persons with information relating to the stolen painting were invited to contact a named senior police officer in the Dumfries and Galloway Police or Mark Dalrymple, a loss adjuster with the firm of Tyler and Co, which is based in London. He was acting for the Hiscox UK, the underwriters at Lloyds who had insured the stolen painting, and also for the Duke of Buccleuch in respect of his uninsured interest in the stolen painting. No-one has ever been prosecuted for committing the robbery.

[3] Efforts to recover the stolen painting continued until 4 October 2007. Those efforts involved, amongst others, officers with the Dumfries and Galloway Police, the loss adjuster Mark Dalrymple, and undercover officers acting under the direction of senior police officers in the Dumfries and Galloway Police. Senior officers of the Dumfries and Galloway Police Force spoke from time to time with the present Duke of Buccleuch, and prior to the death of his late father, with the former Duke of Buccleuch.

[4] Between 2004 and 2007 a number of contacts were made with the insurers of the stolen painting by persons claiming to be in a position to facilitate the return of the painting. Such approaches were brought to the attention of the police who were fully involved in the efforts being made to secure the return of the stolen painting. The steps taken involved a number of individuals, including Mark Dalrymple and an undercover agent known as "John Craig". At one stage John Craig was in contact with a man called Brown, who had some involvement with one of approaches made to the insurers of the stolen painting. During John Craig's contact with the man called Brown discussions took place as to the payment of a reward for the safe return of the stolen painting. I shall make further reference to those discussions in due course.

[5] The stolen painting is extremely valuable. During the hearing with which this Opinion is concerned, I heard evidence that on the open market the stolen painting might be valued at a figure in excess of £40 million. For reasons that it is unnecessary to elaborate upon, in August 2003 the stolen painting was insured by the former Duke of Buccleuch for a figure of slightly less than £4 million. Following the robbery, those insurers settled an insurance claim by the former Duke of Buccleuch in the sum of approximately £3.8 million. That settlement gave the insurers a right of ownership in the stolen painting. Around the same time the insurance policy in respect of the stolen painting was varied to enable the Buccleuch family to buy back the insurers' right of ownership in the stolen painting, in the event that it was ever recovered.

[6] During the morning of 4 October 2007, police officers in possession of search and petition arrest warrants entered the office premises at 146 West Regent Street, Glasgow, occupied by HBJ Gateley Wareing, Solicitors. Within those premises the police officers arrested the accused Ronald, the accused Graham, the accused Doyle and the accused Jones and took possession of the stolen painting. Later during the same day the accused Boyce was also arrested.

[7] The five accused have been indicated on charges in the following terms:

"(1) between 18 July 2007 and 4 October 2007, both dates inclusive, at 15A Highmeadow, Ravenscroft, Upholland, Skelmersdale, The Britannia Pub, Euston Station, London, Tyler and Company, Studio 25 Adair Street, London, the premises of HSBC, 5 Moore Road, Ormskirk, the premises of JC Construction Limited, Caldway Drive, Netherley, Liverpool, Rennies Arts and Crafts Ltd, 30 Burscough Street, Ormskirk, Lockerbie Manor Hotel, Boreland Road, Lockerbie, the office premises formerly occupied by Boyds, Solicitors and now HBJ Gateley Wareing, 146 West Regent Street, Glasgow and elsewhere in Scotland and England, you MARSHALL NEIL CRAIG RONALD, ROBERT STUART GRAHAM, JOHN GERARD DOYLE, CALUM SYMON JONES and DAVID JAMES BOYCE, knowing that the painting attributed to Leonardo da Vinci and known as 'Madonna of the Yarnwinder' had been taken from its rightful owner, the former Duke of Buccleuch and Queensberry, now deceased, in an assault and robbery at Drumlanrig Castle, Buccleuch Estates, Thornhill on 27 August 2003, did conspire together and with others meantime to the Prosecutor unknown to extort money for the return of said painting from the said former Duke of Buccleuch and Queensberry, and from his son the current Duke of Buccleuch and Queensberry, c/o the said Drumlanrig Castle, and from the insurers of said painting, namely Hiscox UK, 1 Great St Helen's, London by means of menacing the said former Duke of Buccleuch and Queensberry and the said current Duke of Buccleuch and Queensberry and employees or agents of the said Hiscox UK, and by putting them in a state of fear and alarm and apprehension that said painting would not be returned to them or would be damaged or destroyed if they did not pay to you a sum of money;

and in pursuance of said conspiracy you did while acting in concert together and with others meantime to the Prosecutor unknown;

(a) on 30 July 2007 at the said office premises at 146 West Regent Street, Glasgow, you MARSHALL NEIL CRAIG RONALD, ROBERT STUART GRAHAM, JOHN GERARD DOYLE, CALUM SYMON JONES and DAVID JAMES BOYCE did meet with each other and did discuss and agree the means of carrying out said extortion;

(b) on 10 August 2007 at Tyler and Company, Studio 25, Adair Street, London, you MARSHALL NEIL CRAIG RONALD did contact Mark Dalrymple, a chartered loss adjuster whom you believed to be acting for the insurers of the said painting, stating that you could return the said painting within 72 hours and requesting his attendance at a meeting at the said office premises at 146 West Regent Street, Glasgow on 13 August 2007 to discuss the return of said painting;

(c) between 10 August 2007 and 4 October 2007, both dates inclusive, at 15A Highmeadow, Ravenscroft, Upholland, Skelmersdale and elsewhere in England, you MARSHALL NEIL CRAIG RONALD did by means of telephone calls and e-mails repeatedly communicate with undercover Law Enforcement Officers known to you as 'John Craig' and 'David Restor', both c/o Dumfries and Galloway Constabulary, Loreburn Street, Dumfries, both of whom you believed to be acting on behalf of the said former Duke of Buccleuch and Queensberry and the said current Duke of Buccleuch and Queensberry and did threaten that 'volatile individuals' were involved who 'would do something very silly' if the police were informed and did request the said 'John Craig' to sign the agreement referred to in paragraph (d) and did agree the conditions under which the said painting would be returned and in particular that said painting would not be returned unless payment of an agreed sum of money was made namely that £2,000,000 of money required to be deposited in a client account at Marshall Solicitors, formerly known as Marshall Gilby Solicitors, and that £2,250,000 of money required to be deposited in a Swiss bank account and other accounts administered by you MARSHALL NEIL CRAIG RONALD and did request the attendance of 'John Craig' and 'David Restor' at a meeting on 4 October 2007 at the said office premises at 146 West Regent Street, Glasgow;

(d) between 1 August 2007 and 4 October 2007, both dates inclusive, at 15A Highmeadow, Ravenscroft, Upholland, Skelmersdale, the said office premises at 146 West Regent Street, Glasgow and elsewhere in Scotland and England, you MARSHALL NEIL CRAIG RONALD, CALUM SYMON JONES and DAVID JAMES BOYCE did draft and revise an agreement between Marshalls Solicitors, 15A Highmeadow, Ravenscroft, Upholland, Skelmersdale referred to therein as the 'Facilitators', and the said 'John Craig' referred to therein as the 'Intermediary', whereby the terms of said agreement provided inter alia that (1) 'Marshalls Solicitors shall confirm that the said painting is available and that a date shall be agreed, known as the "Completion Date" for the said painting to be made available to the Intermediary'; (2) that 'the Intermediary shall transmit the amount of £2,000,000 of money into the client account of Marshalls Solicitors no later than three working days prior to the Completion date'; and (3) that 'the Intermediary warrants that he and no other person acting on his behalf or the owner's behalf or under the direction of either of them or an agent of theirs has given any notification or information relating to the terms of said agreement (nor will do so until after the Completion Date) to the law enforcement agencies';

(e) on 19 September 2007 at 15A Highmeadow, Ravenscroft, Upholland, Skelmersdale or elsewhere in England, you MARSHALL NEIL CRAIG RONALD did by means of a mobile telephone call to Roy Radcliffe c/o Dumfries and Galloway Constabulary, Loreburn Street, Dumfries, request £350,000 of money from him;

(f) between 26 September 2007 and 3 October 2007, both dates inclusive, at 15A Highmeadow, Ravenscroft, Upholland, Skelmersdale, the premises of HSBC, 5 Moore Road, Ormskirk and elsewhere in England you MARSHALL NEIL CRAIG RONALD did arrange for £350,000 of money to be withdrawn from the client account of said Marshalls Solicitors, formerly known as Marshall Gilby Solicitors, namely HSBC account number 51701304, and for a bankers draft in the name of 'Robert Graham' for the sum of £150,000 of money to be drawn on said client account, all without the authority of your clients whose money was held in said client account and you did thereby embezzle £500,000 from said account;

(g) on 29 September 2007 at Rennies Arts and Crafts Ltd, 30 Burscough Street, Ormskirk you MARSHALL NEIL CRAIG RONALD did buy acid free paper and a folio case for the purpose of transporting said painting from an unknown location in England to the said office premises at 146 West Regent Street, Glasgow;

(h) on 3 October 2007 at the premises of JC Construction Limited, Caldway Drive, Netherley, Liverpool and elsewhere in England you MARSHALL NEIL CRAIG RONALD did arrange for the said sum of £350,000 of money specified in paragraph (f) hereof to be delivered to you ROBERT STUART GRAHAM at the said premises of JC Construction Limited, Caldway Drive, Netherley, Liverpool, all for the purpose of securing possession of the said painting;

(i) on 3 and 4 October 2007 at Lockerbie Manor Hotel, Boreland Road, Lockerbie, the said office premises at 146 West Regent Street, Glasgow and elsewhere in England and Scotland you ROBERT STUART GRAHAM and JOHN GERARD DOYLE did collect the said painting from an unknown location in England and did transport and deliver the said painting to the said office premises at 146 West Regent Street, Glasgow for the meeting arranged there on 4 October 2007;

(j) on 3 and 4 October 2007 at Lockerbie Manor Hotel, Boreland Road, Lockerbie, the said office premises at 146 West Regent Street, Glasgow and elsewhere in England and Scotland you MARSHALL NEIL CRAIG RONALD, ROBERT STUART GRAHAM, JOHN GERARD DOYLE, CALUM SYMON JONES and DAVID JAMES BOYCE, did reset the said painting known as the 'Madonna of the Yarnwinder', the same having been dishonestly appropriated by robbery;

(k) on 4 October 2007 at the said office premises at 146 West Regent Street, Glasgow you MARSHALL NEIL CRAIG RONALD, ROBERT STUART GRAHAM, JOHN GERARD DOYLE, and CALUM SYMON JONES, did meet together and with the said 'John Craig' and the said 'David Restor', and did produce the said painting with the intention of giving possession of the said painting to the said 'John Craig' and the said 'David Restor' only if the said sum of £2,000,000 of money was first paid by the current Duke of Buccleuch and Queensberry and the further said sum of £2,250,000 was paid by the said current Duke of Buccleuch and Queensberry on 5 October 2007;

and you did thereby conspire to extort the sum of £4,250,000 of money from the said former Duke of Buccleuch and Queensberry, his son the current Duke of Buccleuch and Queensberry, and the said insurers of said painting;

or alternatively

knowing that the painting attributed to Leonardo da Vinci and known as 'Madonna of the Yarnwinder' had been taken from its rightful owner, the former Duke of Buccleuch and Queensberry, now deceased, in an assault and robbery at Drumlanrig Castle, Buccleuch Estates, Thornhill on 27 August 2003, and with the intention of menacing the said former Duke of Buccleuch and Queensberry and the said current Duke of Buccleuch and Queensberry and the insurers of said painting, namely Hiscox UK, 1 Great St Helen's, London and putting them in a state of fear and alarm and apprehension that said painting would not be returned to them or would be damaged or destroyed if they did not pay to you a sum of money, and for the purpose of extorting money from them you MARSHALL NEIL CRAIG RONALD, ROBERT STUART GRAHAM, JOHN GERARD DOYLE, CALUM SYMON JONES and DAVID JAMES BOYCE did while acting together and with others meantime to the Prosecutor unknown on various occasions between 18 July 2007 and 4 October 2007, both dates inclusive, at 15A Highmeadow, Ravenscroft, Upholland, Skelmersdale, The Britannia Pub, Euston Station, London, Tyler and Company, Studio 25 Adair Street, London, the office premises formerly occupied by Boyds, Solicitors and now HBJ Gateley Wareing at 146 West Regent Street, Glasgow and elsewhere in Scotland and England, contact Mark Dalrymple, a chartered loss adjuster whom you believed to be acting for the insurers of the said painting, stating that you could return the said painting within 72 hours and requesting his attendance at a meeting at the said office premises at 146 West Regent Street, Glasgow on 13 August 2007 to discuss the return of said painting, and did repeatedly telephone and e-mail undercover Law Enforcement Officers known to you as 'John Craig' and 'David Restor', both c/o Dumfries and Galloway Constabulary, Loreburn Street, Dumfries, both of whom you believed to be acting on behalf of the said former Duke of Buccleuch and Queensberry and the said current Duke of Buccleuch and Queensberry and did threaten that 'volatile individuals' were involved who 'would do something very silly' if the police were informed, and did agree the conditions under which the said painting would be returned and in particular that said painting would not be returned unless payment of an agreed sum of money was made namely that £2,000,000 of money required to be deposited in a client account at Marshall Solicitors, formerly known as Marshall Gilby Solicitors, and that £2,250,000 of money required to be deposited in a Swiss bank account and other accounts administered by you MARSHALL NEIL CRAIG RONALD, and did request the said 'John Craig' to sign an agreement providing inter alia not to notify the law enforcement agencies and to pay £2,000,000 of money into the client account of Marshalls Solicitors no later than three working days prior to the said painting being returned, and did request the attendance of the said 'John Craig' and the said 'David Restor' at a meeting on 4 October 2007 at the said office premises at 146 West Regent Street, Glasgow when the said painting would be handed over by you, and did attend at the said office premises on 4 October 2007 in possession of the said painting and you did thereby attempt to extort the sum of £4,250,000 of money from the said former Duke of Buccleuch and Queensberry, his son the current Duke of Buccleuch and Queensberry, and the said insurers of said painting;

and

(2) between 18 July 2007 and 4 October 2007, both dates inclusive, at 15A Highmeadow, Ravenscroft, Upholland, Skelmersdale, the office premises formerly occupied by Boyds, Solicitors and now HBJ Gateley Wareing at 146 West Regent Street, Glasgow and elsewhere in Scotland and England, you MARSHALL NEIL CRAIG RONALD, ROBERT STUART GRAHAM, JOHN GERARD DOYLE, CALUM SYMON JONES and DAVID JAMES BOYCE, having committed the crime libelled in charge (1) hereof and being conscious of your guilt in respect thereof you did telephone a Law Enforcement Officer known to you as 'David Restor', c/o Dumfries and Galloway Constabulary, Loreburn Street, Dumfries, whom you believed to be acting on behalf of the said former Duke of Buccleuch and Queensberry and the said current Duke of Buccleuch and Queensberry and did threaten that 'volatile individuals' were involved who 'would do something very silly' if the police were informed, draft and revise an agreement which provided inter alia that the law enforcement agencies would not be notified and require an undercover Law Enforcement Officers known to you as 'John Craig' c/o Dumfries and Galloway Constabulary, Loreburn Street, Dumfries, whom you believed to be acting on behalf of the said former Duke of Buccleuch and Queensberry and the said current Duke of Buccleuch and Queensberry to sign said agreement and all this you did with intent to defeat the ends of justice and to avoid detection, arrest and prosecution in respect of the crime libelled in charge (1) hereof and you did attempt to defeat the ends of justice."

[8] During the preliminary hearings in this case, each of the accused gave written notice of a plea in bar of trial on the basis that he had been entrapped by an undercover agent, known as John Craig, into acting in the manner which is now alleged to constitute the commission of the criminal charges he faces. Some of the Minutes lodged also refer to another undercover agent known as David Restor. Each of the accused, apart from the accused Doyle, lodged a Minute under section 73(2) of the Criminal Procedure (Scotland) Act 1995 and a Devolution Minute raising a devolution issue relating to Articles 6 and 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms. The accused Doyle lodged one Minute in respect of both the plea in bar of trial and a devolution issue.

[9] All the Minutes are in similar, albeit not identical terms. They all state that the individual accused in whose name they proceed was actively encouraged by the undercover agents, and in particular by John Craig during a meeting he had with the accused Ronald and the accused Graham at Euston Station on 30 September 2007, into engaging in the activities that are alleged to amount to criminal conduct for which they are being prosecuted. The accused contend that it would be oppressive and unfair were the present criminal proceedings to be continued. Separately it is contended that the continuation of these proceedings by the Lord Advocate would be incompatible with the rights of each of the accused under Articles 6 and 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms.

[10] The hearing in respect of these Minutes extended over eleven days. I heard eight days of evidence and three days of submissions, during which counsel spoke to and amplified upon written submissions which they had very helpfully prepared. I am very grateful to counsel for the assistance those written submissions have provided.

[11] I heard evidence from the following witnesses:- (a) the accused Graham, who, by agreement amongst the parties, gave evidence first; (b) Mark Dalrymple, Loss Adjuster (Crown Witness 8), (c) David Restor (Crown Witness 62) and (d) John Craig (Crown Witness 61), all of whom were led on behalf of the accused Ronald; (e) the accused Jones; and (f) James Tierney (Crown Witness 10), (g)Victor Mass (Crown Witness 11) and (h) D S Colin Burnie (Crown Witness 64), all of whom were led by the Crown. A Joint Minute was lodged, which agreed, inter alia, the contents of a police statement dated 9 January 2008 of the current Duke of Buccleuch and of another police statement dated 29 October 2007 of Colin Henderson, a partner of Anderson Strathearn, the firm of solicitors who have acted for the Buccleuch family over many years.

The law

[12] Parties were agreed that the principal authorities relevant to the doctrine of entrapment are R v Looseley [2001] UKHL 51, [2001] 1 WLR 2060; and Brown v HM Advocate 2002 SLT 809. In relation to that doctrine, I was also referred to Weir v Jessop 1991 JC 146; Ridgeway v The Queen (1995) 184 CLR 19; R v Latif [1996] 1 WLR 104, Teixeira de Castro v Portugal (1998) 28 EHRR 101 and R v Hooper [2002] EWCA Crim 621.

[13] From the speeches of Lord Nicholls; Lord Hoffman; Lord Hutton and Lord Scott of Foscote in R v Looseley the following guidance emerges:

(a) Every court has an inherent power and duty to prevent abuse of its process. Where there has been an abuse of executive power amounting to an affront to the public conscience then criminal proceedings will be stayed. A prosecution founded upon entrapment would be an abuse of the court's process.

(b) Entrapment arises when the commission of the charges an accused faces has been brought about by the state's own agents. State-created crime is unacceptable and improper.

(c) When exercising its inherent jurisdiction to stay proceedings as an abuse of process on the ground of entrapment, the Court requires to balance the need to uphold the rule of law by convicting and punishing those who have committed crimes and the need to prevent law enforcement agencies from acting in a manner which constitutes an affront to public conscience. Undertaking that balancing exercise involves a comprehensive review of the whole operation in which the agents of the state became involved with the accused.

(c) Entrapment is not a substantive defence to a criminal charge. When dealing with a plea in bar of trial on the ground of entrapment, the Court must assume that the accused has carried out the criminal conduct alleged against him and that he did so freely and with the necessary intent.

(d) The onus of establishing the factual basis for a plea of entrapment rests on an individual accused. Depending on the evidence led, the Court could conclude that some but not all of those being prosecuted on the same indictment had been entrapped. When the onus is discharged by an individual accused the plea in bar of trial on his behalf falls to be sustained.

(e) A plea in bar of trial based on entrapment involves the accused claiming that he was lured, incited, enticed or pressurised by police officers, or by some other agents of the state, into committing a crime which he would not otherwise have committed.

(f) As to where the boundary lies in respect of what is acceptable police behaviour, no single factor or formula will always produce the correct answer or be determinative. The relative weight and importance of relevant factors depends upon the particular facts of the case, including the accused's own circumstances.

(g) In some instances a degree of active involvement by the police in the commission of a crime can be regarded as acceptable. The use of pro-active undercover techniques by the police is required in the investigation of some categories of criminal activity more than with others. The secrecy of and the difficulty in detecting the particular criminal activity under investigation are relevant considerations. So also is the question of whether the strategy adopted by the police, or undercover agents, involved their acting in a manner that might be encountered by those engaged in the course of criminal activity.

(h) One approach to identifying the limits of acceptable police conduct is to consider whether, in the particular circumstances of the case, the undercover police officers or other agents of the state did any more than present the accused with an unexceptional opportunity to commit a crime he intended to commit, or had already embarked on committing. However the extent to which that approach may be helpful depends on whether members of the public are liable to have found themselves in the situation in which undercover agents were operating.

(i) When considering a case to which the doctrine of entrapment may apply, the Court is also concerned with the reasons for the police acting as they did. The police must act in good faith. Reasonable suspicion on the part of the police that a crime has been committed, or may be about to be committed, is one way of testing for the existence of good faith.

(j) Linked with the important factor of reasonable suspicion is another important factor of supervision. Supervision involves that the investigation is authorised and that undercover agents are monitored by a supervising officer. If an officially authorised investigation is taking place (or has previously taken place) into offences of a similar nature, then good faith can be established, even if an individual accused is someone to whom no personal suspicion had previously been attached.

(k) Ultimately the overall consideration is whether the conduct of the police or of other law enforcement agencies has been so seriously improper as to compromise the integrity of the judicial system and bring the administration of justice into disrepute.

(l) That the exercise of the court's power to stay proceedings on the ground that they constituted an abuse of process conformed with, and was unaffected by, article 6(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms and the jurisprudence of the European Court of Human Rights.

[14] The Opinions delivered by the member of the Court in Brown v HM Advocate

indicate that the guidance given by the House of Lords in Looseley is equally

applicable in Scotland (per Lord Marnoch at page 813D-H, Lord Philip at pages 814K - 815G and Lord Clarke at pages 815L-816J). In seeking to apply what was

said in Brown, I have followed the approach favoured by Lord Philip and Lord Clarke, namely that it is not necessary to investigate whether the accused has been prejudiced or has been the victim of any unfairness.

[15] During the course of the submissions, it was argued on behalf of more than one of the accused that although the Court requires to proceed on the assumption that an accused committed the offences charged, when it is dealing with a plea in bar of trial on the ground of entrapment, the Court is entitled to make any finding in fact it considers to have been established by the evidence led. Thus, if an accused gives evidence as to what he said or did, which necessarily involves his denying guilt of the charges he faces, the detail of such evidence, or of any part of such evidence, could be accepted by the Court and relied upon in considering whether the plea in bar of trial has been established. I accept that submission so far as it goes. The corollary of doing so, however, is that any finding that I may make in respect of evidence given by, or relied upon by an accused during the hearing, would not be admissible in any trial proceedings involving any of the accused, or indeed any other individual, that might follow upon my decisions on the pleas in bar of trial that are before me.

[16] However it is important to bear in mind that it is no part of the Court's role during a hearing of this nature to determine an accused's guilt or innocence of the charge(s) he faces. That point requires to be stressed because throughout the hearing each accused, whether directly in the case of those accused who gave evidence, or indirectly through the mouth of their counsel or solicitor advocate, denied having committed any offence. Likewise it is no part of the Court's function during the hearing of a plea in bar based upon entrapment to determine whether an accused has a case to answer on the charge(s) he faces.

Outline chronology of events

[17] The accused Ronald is a solicitor in England. During the period with which these proceedings are concerned he practised as a sole practitioner from his home address, which is his domicile of citation. The accused Graham and the accused Doyle also live in England at the addresses shown in the indictment. Prior to the events giving rise to the present proceedings, they carried on business as private investigators. They did so through a company called Crown Private Investigations Limited. The accused Graham and the accused Doyle also operated a website known as "Stolen Stuff Reunited". Both had known the accused Ronald for some time. He had acted as their solicitor.

[18] The accused Jones and the accused Boyce are solicitors in Scotland. They were formerly partners with Boyds, Solicitors, 146 West Regent Street, Glasgow. On 1 October 2007 that firm merged with HBJ Gateley Wareing, Solicitors. The accused Jones and the accused Boyce resigned from the merged firm following upon the events of 4 October 2007.

[19] During July 2007, the accused Ronald, the accused Graham and the accused Doyle met together on a number of occasions in England. Those meetings were said to have involved discussion of information about the stolen painting, which the accused Graham and the accused Doyle claimed to have come by from individuals who were referred to during the evidence as "J" and "Frank". During the meetings the accused Ronald, the accused Graham and the accused Doyle discussed the possibility that the stolen painting might be repatriated to Scotland and returned to the Duke of Buccleuch upon payment of a reward. Those discussions appear to have covered a number of matters and proceeded on the basis that the reward payable would require to be sufficient to cover the payment of £700,000 to whoever was holding the painting.

[20] During the latter part of July 2007, the accused Ronald contacted the accused Boyce who was known to him. A meeting was arranged in Glasgow and in anticipation of that meeting the accused Ronald emailed certain papers to the accused Boyce. Those papers made reference to and included a paper written by Mark Dalrymple, the loss adjuster named in the initial offer of a reward for information relating to the painting. The paper had been written for delivery at an AXA conference.

[21] On 30 July 2007, a meeting took place at Boyds' offices in Glasgow. All five of the accused were present. The accused Graham and the accused Doyle were introduced as being clients of the accused Ronald. Unknown to the accused Jones and the accused Boyce, and also the accused Ronald, the accused Graham and the accused Doyle recorded that meeting. Transcripts of the recording have been prepared (Crown Productions 237 and 238). The transcripts are of a very poor quality. The recording, which was played in court, was equally difficult to follow. It is impossible to be determine what was said at a number of points during the meeting. However it appears clear that during the meeting the accused Jones did advise that the next step which the accused Ronald should follow, on behalf of the accused Graham and the accused Doyle, was to contact the loss adjuster Mark Dalrymple. The following day, 31 July 2007, the accused Ronald and the accused Jones had a further meeting.

[22] The accused Ronald subsequently contacted Mark Dalrymple. He did so by sending him a letter dated 11 August 2007. That letter was in the following terms:-

"Strictly Private and Confidential By Email Only

Dear Mr Dalrymple

Re: Recovery of Stolen Art 'Madonna of the Yarnwinder'

We apologise for contacting you during your holiday and trust you will understand our reasons.

We have been instructed to act on behalf of client's (sic) who can assist in the recovery of the Da Vinci painting 'Madonna of the Yarnwinder' (The Landsdown Madonna) which was stolen from Drumlanrig Castle on 27 August 2003.

We make it plain from the outset that we do not act for the thieves and have no knowledge as to the identity of the original thieves.

Our concern is to negotiate the safe repatriation of the painting and negotiate the reward/finder's fee on behalf of our clients.

We have instructed HJB Gateley Wareing LLP of 146 West Regent Street, Glasgow G2 2RZ to assist us in negotiating the safe repatriation of the painting to its rightful owners.

We are satisfied as to the validity of our client's (sic) claims and that they can affect the safe delivery up of the painting within a 72 hour timeframe.

In view of the sensitive nature of this matter we would propose to invite you to a 'without prejudice' meeting at the Glasgow Offices of HJB Gateley Wareing LLP of 146 West Regent Street, Glasgow, G2 2RZ on Monday 13 August 2007 at a mutually convenient time to be arranged. We regard time as being of the essence.

Present at the meeting with Mr David Boyd, senior partner, Mr Calum Jones from HJB Gateley Wareing LLP and Marshall Ronald from this practice. We believe, as a legal team, we can negotiate the successful and speedy return of this precious artwork though an informal mediation type process.

Will you please contact the write on 07834 598851 upon receipt of this email.

Yours sincerely,

Marshall Ronald

Marshalls"

[23] On receipt of that letter, and after speaking to the police, Mark Dalrymple telephoned the accused Ronald. During that telephone call the accused Ronald made it clear that he did not want the police to be involved at any stage. Mark Dalrymple then withdrew from the situation, on the pretext that he was no longer acting for the Duke of Buccleuch. That occurred by arrangement with the police. Shortly thereafter the accused Ronald was contacted by the undercover agent David Restor, who claimed to be an art expert. He was then contacted by the undercover agent John Craig, claiming to be a loss adjuster.

[24] Over the following weeks there was fairly extensive contact between the accused Ronald and John Craig. They discussed a number of matters including the reward that would be payable in the event of the safe return of the painting. Contact between the accused Ronald and John Craig was normally over the telephone, although a few emails were also sent. A written contract, which had been drafted by the accused Jones and revised by the accused Ronald, was attached to one of those emails. Over the same period of time the accused Ronald met regularly with the accused Graham and Doyle and was in contact with the accused Jones, normally by email.

[25] On 30 May 2007 a meeting took place in a public house at Euston Station in London. The accused Ronald, the accused Graham and John Craig were present. That was the first and only time that John Craig met any of the accused prior to the meeting at 146 West Regent Street, Glasgow on 4 October 2007. On that date, as previously arranged between the accused Ronald and the accused Jones, the first four accused congregated in a room within the office premises of HBJ Gateley Wareing at 146 West Regent Street, Glasgow. David Restor and John Craig were also present. The accused Graham and the accused Doyle had brought the stolen painting with them. After the painting had been produced and verified by David Restor, police officers entered the room. As I have already indicated, the first four accused were arrested and later during the same day the fifth accused was arrested

Summary of evidence

Accused Graham

[26] The accused Graham was the first witness to give evidence. He spoke of having been approached in a public house he ran by a man who he knew as "J" (a man who according to the evidence was also, on occasion, also known as "K" or "Karl"). J wanted a telephone number for the accused Doyle. Subsequently the accused Graham and the accused Doyle had met with J and another man known as Frank. The accused Graham gave evidence that he had been told by J that he was an intermediary for another man, who had lent £700,000 on security of the stolen painting. That loan had been made in connection with a building development which had failed. The man holding the painting was now out of pocket to the extent of £700,000. The accused Graham claimed not to know any more about the identities of J or Frank or the man alleged to be holding the stolen painting.

[27] The second accused gave evidence that he and the accused Doyle had then contacted the accused Ronald for advice. He claimed that they sought advice as to whether the stolen painting could be repatriated legally to Scotland. Against the background of the evidence he gave about his role in setting up of a website "Stolen Stuff Reunited", on which members of the public had been able to advertise for the return of stolen or lost property, the accused Graham claimed that his objectives for returning the painting included attracting publicity of the website, which had closed down through lack of success; sharing in the reward; and seeking to achieve the return of the painting to Scotland which he stated had captured his imagination and with which he had "fallen in love". He maintain that he last of these three reasons had been his main motivation.

[28] It became clear during the evidence of the accused Graham, and this remained the position throughout the hearing, that the first three accused had consistently maintained, on the basis of the information they claimed to have come by, that the man alleged to be holding the stolen painting (whoever he might be) would not be prepared to release the stolen painting unless he received £700,000.

[29] The accused Graham spoke about the meeting that took place in the offices of Boyds, Solicitors on 30 July 2007. As I have already indicated, the tape recording of that meeting and the transcripts prepared are of poor quality (Crown Productions 237 and 238). He indicated that the purpose of the meeting had been to seek advice as to whether the stolen painting could be repatriated legally to Scotland in exchange for the payment of a reward. At the meeting the accused Ronald had outlined what the venture involved and indicated what advice was being sought from the accused Jones and the accused Boyce. In the process of doing so the accused Ronald gave a slightly different account of how the man alleged to be holding the stolen painting had come to have it in his possession, explaining that had occurred when the stolen painting had been stolen from the original thieves. Although that explanation was "corrected" by the accused Doyle, it does not appear from the transcript of the meeting that any attempt was made to invite either the accused Graham or the accused Doyle to produce further information about the identity of the persons they were in contact with, about the identify of the person alleged to be holding the stolen painting, or about the circumstances in which the stolen painting was being held. On the contrary, at one stage during the meeting the accused Boyce said to the accused Ronald that he did not wish to know the identity of the third party who was in contact with the accused Graham and the accused Doyle (page 24 of Crown Production 237). During the meeting there was no suggestion that the police were going to be involved in the proposed venture, at least until after the picture had been repatriated. On more than one occasion during the meeting there was mention of the possibility of the stolen painting being destroyed by the person who said to be holding it.

[30] During the meeting it was made clear to the accused Jones and the accused Boyce that if £700,000 was not paid to the holder of the stolen painting, the project would not go ahead. It was also explained to the accused Jones and the accused Boyce that any sum recovered by way of a reward in excess of that figure was going to be split five ways. The accused Graham gave evidence that they were advised during the meeting that what they proposed could be done legally, but that would necessitate them contacting the loss adjuster Mark Dalrymple, who had been named in the advertisement relating to the reward, and entering into a deal with him. During the meeting the accused Jones had explained that if they took possession of the stolen painting, before they had a deal in place with the loss adjuster, they would have to return it to the insurers. The accused Jones also advised about entering into a contract with the intermediary J.

[31] In his evidence about the meeting the accused Graham claimed that if he had been told that the repatriation could not have been done legally, he would not have proceeded with it. The transcript of the meeting, however, also discloses that the accused Doyle sought advice as to the likely penalty were he to be prosecuted for withholding information from the police as to how they had come by information about the stolen painting (Crown Production 238 at pages 10 - 12).

[32] The accused Graham gave evidence that after the meeting he and the accused Doyle had been kept advised by the accused Ronald about his dealings with John Craig. They had met with him at his house. Although he had never sent them any letters, he had continued to advise them that the venture was legal. During the course of those meetings the accused Graham had learnt that the loss adjuster had offered a reward of £2 million. Unsigned copies of the contract drafted by the accused Jones had been given to them. At one stage it had been mooted that the accused Graham and the accused Doyle should put their houses up as security for loans to cover the cost of acquiring the stolen painting from whoever was holding it. In the event they had not done so.

[33] During his evidence the accused Graham explained the background to the meeting at Euston Station, which took place on 30 September 2007. At that time he had understood that the contract was not signed. The accused Doyle had wanted it to be signed, in case they were stopped by the police whilst they were transporting the painting to Glasgow. He claimed that the accused Doyle was worried about being stopped whilst they were taking the painting to Scotland and being charged with reset. J and Frank wanted to have the meeting at Euston Station taped. They were said to have wanted to be reassured that the transaction was legal.

[34] The accused Graham explained that on the way to the meeting he was told by the accused Ronald that the contract had been signed. He also explained that he had recorded the meeting at Euston Station. The accused Ronald had not been aware that he was doing so. The transcripts of the recording are Defence Productions 3 and 4 for the accused Graham. I shall deal in more detail with what happened during that meeting when I summarise the evidence given by John Craig. The accused claimed that after the meeting he was totally convinced that what was happening was legal lawful. He claimed that he had formed that view from how John Craig had spoken, how he had looked and what he had said.

[35] The accused Graham gave evidence that following the meeting at Euston Station the tape of the recording had been played to the accused Doyle, J and Frank. They had all believed that John Craig was who he said he was. They had decided to proceed.

[36] Arrangements had then been made for money to be available to be paid to whoever was holding the painting. The accused Ronald had arranged this. On 3 October 2007 a consignment of cash amounting to £350,000, which the accused Ronald had arranged, was uplifted by him after it had been delivered by a security van to secure premises, which the accused Ronald had access to. The cash had then been taken by him to a public house, whose name he could not remember. In the car park of the public house he had met J. The cash and a banker's draft for £150,000 in the accused Graham's own name, which the accused Ronald had given him, had also been handed to J. J had driven off and had returned some time later with the stolen painting. The accused Graham and the accused Doyle had left for Scotland later the same day. The following morning they had taken the stolen painting to the offices in Glasgow where they had been arrested.

Mark Dalrymple

[37] Mark Dalrymple explained that he was a loss adjuster and a principal in the firm of Tyler and Co. He gave evidence of having become involved immediately following the robbery at Drumlanrig Castle. At that stage he had acted for the insurers and for the former Duke of Buccleuch in respect of his uninsured interest. He explained that the reward which had originally been offered had been subject to two conditions - the safe return of the stolen painting and the owner being satisfied that no part of the reward payable would go to those criminally involved in the theft of the stolen painting. Mark Dalrymple explained that in England the payment of a reward on the basis that no questions would be asked was illegal. That arose out of the provisions of section 23 of the Theft Act 1968. For that reason, when a loss adjuster in England received information relating to the possible return of stolen property, it was the normal practice for the loss adjuster to contact the police as to whether the lead was worth following up. Loss adjusters in England considered it essential to get the approval of the police before any reward was paid.

[38] Mark Dalrymple gave evidence that he had some involvement in earlier negotiations relating to the possible return of the stolen painting. At that stage he had still been acting for the insurers and for the former Duke of Buccleuch. Those discussions had involved a man called Brown, who may or may not have been in a position to secure the return of the stolen painting. He gave evidence that during those discussions he had met the undercover agent known as John Craig.

[39] On receipt of the letter dated 11 August 2007 from the accused Ronald (Crown Production 266), Mr Dalrymple had contacted the police. When he had telephoned the accused Ronald later in the day, he had done so in accordance with instructions that he had been given by a senior police officer within the Dumfries and Galloway Police Force. He had asked the accused Ronald why he did not want to involve the police. The accused Ronald had indicated that he did not wish to do so because it would complicate matters. Mark Dalrymple said that he had then explained he could not go to Glasgow for the meeting, which the accused Ronald had proposed in the letter. That was because he was no longer instructed to act for the Duke of Buccleuch. Mark Dalrymple said that he had also indicated, again in accordance with what had had discussed with the police, that the Duke had two new advisers, John Craig and David Restor, and that he would get in touch with John Craig and suggest that he should take instructions from the Duke of Buccleuch as to what he might do.

[40] During cross-examination Mr Dalrymple was asked about the level of reward that was contemplated when the advertisement had been placed. He indicated that had been a matter of discussion with the police. He had been authorised by the insurers to offer upwards of £50,000. He gave evidence that rewards in excess of £100,000 may encourage thefts for the sake of seeking rewards. He said it was regarded as being contrary to public policy to go above that level, which was why loss adjusters in England gave careful thought to the level of awards and took advice from police officers.

[41] Mr Dalrymple also confirmed that during the time he had been involved in the discussions concerning the man known as Brown, he had appeared on a television programme during which he had stated that as a loss adjuster he would normally involve the police. He agreed that the involvement of the police in discussions seeking to achieve the return of stolen property can complicate matters. He had been informed that his appearance on that programme had led to a collapse in confidence amongst some associated with the discussions involving the man called Brown.

David Restor

[42] David Restor explained that he was a law enforcement officer, who worked undercover and that David Restor was the name he operated under. He spoke to the written instructions to which all undercover officers' work. These are incorporated into an undercover officer's Report Book and require to be signed by the undercover officer concerned. The Scottish version is in the following terms:

"INSTRUCTIONS TO UNDERCOVER OFFICERS

1. A Police Officer must not act as an 'agent provocateur'. This means they must not

(a) Incite or procure a person, nor through that person anybody else, to commit an offence, or an offence of a more serious character, which that person would not otherwise have committed.

(b) Through pressure, encouragement or inducement invite any person to commit an offence, which that person would never otherwise have been committing. (Weir v Jessop 1991 SCCR 636)

2. However, a Police Officer is entitled to join a conspiracy which is already in being, or an offence which is already 'laid on', or, for example, where a person has made an offer to supply goods, including drugs, which involves the commission of a criminal offence.

3. If, during the course of an investigation into an offence or series of offences, a person involved suggests the commission of, or offers to commit, a further similar offence (e.g. by offering to supply drugs unlawfully) a Police Officer is entitled to participate in the proposed offence. The officer must not incite such an offence.

4. Police Officers are entitled to use the tool of infiltration of groups or organisations. In such a case it is proper for the undercover officer to show interest in, and enthusiasm for proposals made even though they are unlawful, but, in so doing, they must try to tread the difficult line between showing the necessary interest and enthusiasm to keep their cover (and pursue their investigation) and actually becoming an agent provocateur. Invariably this means you enter a criminal conspiracy or become part of a pre-arranged criminal offence.

5. Police Officers must obtain confirmation that the information they are acting on is accurate and reliable before becoming involved in undercover operations.

6. Police Officers must bear in mind that the court will scrutinise carefully the role of the Officer in undercover operations and take into account the circumstances in which evidence was obtained. The principle of fairness will be applied by the court.

7. Police Officers must be conversant with Article 6 (the right to fair trial) and Article 8 (the right to respect for private and family life) of the European Convention on Human Rights."

The English version of those instructions is in similar terms.

[43] David Restor gave evidence that he had been involved in enquiries involving the man called Brown. As a consequence he had some background knowledge about the stolen painting. On instructions from a senior investigating officer in Dumfries and Galloway Police Force he had telephoned the accused Ronald on 14 August 2007. That telephone call was recorded. The transcript of the call is Crown Production 203.

[44] David Restor explained that throughout that call he acted out the role he had been instructed to adopt. He stated that he was an art restorer and that John Craig was his colleague. He explained that he was retained by Lord Dalkeith (sic). He suggested a meeting so that they could have some proof or evidence as to the condition of the stolen painting. He gave evidence that during the course of the call the accused Ronald had indicated that he was dealing with people who seemed a bit volatile (pages 7 and 9 of Crown Production 203). Towards the end of the call, David Restor had asked if the accused Ronald had notified the police. The accused Ronald said that he had not. The accused Ronald had also indicated he did not have instructions to do so and thought that it might not be helpful. He had stated that he thought that if he went down that road his clients might do something very silly, by which David Restor understood him to be referring to their damaging or destroying the stolen painting.

[45] The call was concluded with David Restor promising to send an email address to the accused Ronald, who agreed that he would forward a DVD of the stolen painting to be viewed by David Restor.

[46] During cross-examination it was suggested to David Restor that in the course of the telephone call he should have disclosed to the accused Ronald that he was an undercover agent and should have suggested that an undercover police operation be mounted so that those holding the painting would never know that the police were involved. David Restor resisted those suggestions on the basis that he was an undercover officer acting in role. Doing what was suggested would have amounted to his acting "out of role". He also explained that his role as an undercover officer involved him reporting back to the senior investigating officer, whose responsibility was to determine the courses of action to be followed.

[47] The following day the accused Ronald left a telephone message for David Restor about getting the DVD of the stolen painting to him (Crown Production 204). David Restor had no further involvement until the meeting on 4 October 2007 in Glasgow.

John Craig

[48] John Craig was the second undercover officer to give evidence. As with David Restor, he acted throughout under the supervision and instruction of a senior investigating officer with Dumfries and Galloway Police Force. That involved him reporting to the senior investigating officer after every contact he had with the accused Ronald and being given further instructions before further contact took place.

[49] John Craig gave evidence of having been involved as an undercover officer in the enquiries relating to the man called Brown. During that particular enquiry he had initially presented himself as having been employed as a loss adjuster by Tyler and Co. That had changed to his presenting himself as working for the Duke of Buccleuch. When he first contacted the accused Ronald his instructions had been to present himself as having formerly acted as a loss adjuster for the Duke of Buccleuch and as being willing to re-introduce him to the Duke. Adopting that role obviously involved a deception which John Craig persisted in throughout his dealings with the accused Ronald.

[50] John Craig's first contact with the accused Ronald was on 21 August 2007, during a telephone call which John Craig made at 1338 hours. The call was recorded. The transcript is Crown Production 207. That was the first of a number of contacts between John Craig and the accused Ronald, most of which were over the telephone. All telephone contacts initiated by John Craig were recorded and transcripts prepared. The subsequent calls were as follows:- (a) Tel Call on 22 August at 1238 (Crown Production 208); (b) Tel Call on 22 August at 1957 (Crown Production 209); (c) Tel Call on 23 August at 1824 (Crown Production 210); (d) Tel Call on 29 August at 1738 (Crown Production 211); (e) Tel Call on 29 August at 1851 (Crown Production 212); (f) Tel Call on 24 September at 2003 (Crown Production 213); (g) Tel Call on 27 September at 1846 (Crown Production 215); (h) Tel Call on 28 September at 1846 (Crown Production 216); (i) Tel Call on 29 September at 1450 (Crown Production 217); (j) Tel Call on 29 September at 1606 (Crown Production 218); (k) Tel Call on 29 September at 1648 (Crown Production 219); (l) Tel Call on 29 September at 2100 (Crown Production 221); (m) Tel Call on 30 September at 2133 (Crown Production 222); (n) Tel Call on 1 October at 1736 (Crown Production 225); (o) Tel Call on 1 October at 2125 (Crown Production 226); (p) Tel Call on 3 October at 1144 (Crown Production 228); (q) Tel Call on 3 October at 2007 (Crown Production 233); and (r) Tel Call on 4 October (Crown Production 233).

[51] The Crown Productions also include a number of emails with attachments, which had been sent by the accused Ronald to an email address provided to him by John Craig. Emails dated 24 September 2007 (Crown Production 53) and dated 26 September 2007 (Crown Production 254) were mentioned during the evidence.

[52] During the course of his evidence John Craig was referred to and asked questions about passages in the majority of the transcripts of the telephone conversations. He confirmed that throughout he had played the role of a loss adjuster and that in addition to adopting that false character, he had made, on many occasions, statements to the accused Ronald that were untrue. John Craig explained that he had done so in accordance with the instructions he had received from the senior investigating officer.

[53] At an early stage in his evidence John Craig indicated that prior to his first making contact with the accused Ronald, he had been briefed by the senior investigating officer that the accused Ronald had indicated that he did not wish to involve the police. That was one reason why he had not suggested to the accused Ronald that he would contact the police. During the first of the telephone conversations the accused Ronald indicated that £700,000 was required for the people who were holding the stolen picture and that five other people were looking for 20% shares out of whatever the "overage" of the reward proved to be (page 11 of Crown Production 207). The accused Ronald also spoke of his worry about the guy holding the painting "doing something daft and panicking" (page 17 of Crown Production 207).

[54] During that and later calls there were discussions about the accused Ronald producing and John Craig viewing a "proof of life" DVD to demonstrate that the stolen picture was still in existence and undamaged. Acting in accordance with the instructions he had received from the senior investigating officer, John Craig also spoke to the accused Ronald about having had discussions with the Duke of Buccleuch and the Earl of Dalkeith and of having being authorised to act on behalf of the Buccleuch family, in connection with the possible return of the stolen painting. As further telephone calls ensued, John Craig and the accused Ronald discussed the practicalities that would be involved in returning the stolen painting to Scotland and to the Duke of Buccleuch.

[55] The first mention of how much the Duke of Buccleuch might be prepared to pay as a reward occurred during the telephone call on 29 August 2007 (Crown Production 212). John Craig initially suggested a figure of £1.5 million (page 2). When informed that would meet a lukewarm response, John Craig indicated that once the stolen painting had been examined and verified at HBJ Gateley Wareing's offices in Glasgow (the location for the handover suggested by the accused Ronald) £2 million would be paid into the bank account of the accused Ronald's firm (page 11). John Craig indicated in evidence that figure of £2 million had been put forward because it was similar to the figure for a reward that had been reached in the previous discussions involving Brown. As at 29 August 2007 it was not known what information the accused Ronald, or any of the people he was talking to, may have had about those previous discussions. During this particular telephone call the accused raised the subject of legal expenses and John Craig indicated that he would go back to his clients on that matter.

[56] The next telephone conversation was on 24 September 2007 (Crown Production 213). Since the last conversation the former Duke of Buccleuch had died. By this stage the accused Ronald was in possession of a contract drafted by the accused Jones and revised by him. The accused Ronald indicated he would email the contract to John Craig. He subsequently did so on 26 September 2007 (Crown Production 254). I deal later with the terms of that contract.

[57] During the telephone conversation on 24 September, the accused Ronald and John Craig had further discussions about the practicalities of returning the stolen painting to Scotland, in exchange for the payment of a reward. During those discussions John Craig explained that matters were more complicated following the death of the former Duke. However the discussions proceeded on the basis that the stolen painting would be returned to Scotland on 3 October or 4 October.

[58] Also attached to the email of 26 September 2007 was a letter addressed to John Craig, which carried the same date. In that letter the accused Ronald set out in detail various matters relating to what he described as being the logistics of the handover and verification of the stolen painting. The letter had a proposed timetable attached to it. It also mentioned that there had been a last minute demand for the £700,000 to be paid up front. It explained that the accused Ronald had reached a compromise, which involved a cash sum of £350,000 being made available in exchange for the physical handover of the painting. Mention was also made of what was described as being the outstanding issue of expenses and legal costs, which was to be dealt with in a side letter.

[59] During the next telephone conversation, which was on 27 September (Crown Production 215), John Craig indicated that he had seen the documents emailed to him, which included the contract, and stated that they were not a problem. The accused Ronald explained that he had arranged for £350,000 in cash to be available for the following week. He then returned to the issue of legal fees and read over to John Craig a side letter relating to the subject, which John Craig had not yet received, but subsequently did (see pages 6-8 of Crown Production 215 and the email dated 27 September 2007 in Crown Production 257). The side letter bore to be an agreement between John Craig acting on behalf of the Earl of Dalkeith and Marshalls solicitors, acting on behalf of Marshall Ronald "the facilitators". It narrated that in order to prevent a repetition of the failure of previous attempts to return the painting, "it had been necessary for Marshall Ronald to conduct detailed investigations and meet with numerous individuals claiming to be able to assist in the search for the true owner (sic) of the painting." Having described at some length what Marshall Ronald had required to do, it provided that an agreed payment of £2 million should be payable to Marshall Ronald for his services. That additional payment was to be confidential and was not to be disclosed to any third parties. In a subsequent call the following day (Crown Production 216), the accused Ronald indicated that he wished that further sum paid into a foreign bank account.

[60] During the telephone call on 27 September 2007, John Craig referred to payments totalling £4 million as a viable possibility. In evidence he explained that he had done so that because payments approaching that figure had been offered in the past, during the discussions which had taken place involving the man called Brown. In those discussions, unknown to others who had been involved, a payment in excess of £2 million had been offered to Brown himself. Accordingly what was being offered to the accused Ronald had been offered before. John Craig explained that he had been briefed that during his conversations with the accused Ronald he should play his role in a manner which would not contradict or conflict with what had been said during the negotiations with Brown in which he had previously been involved.

[61] There were four telephone conversations on 29 September 2007 (Crown Production 217, Crown Production 218, Crown Production 219 and Crown Production 221). During the first of these calls, the accused Ronald talked of how he planned to proceed. In doing so he referred to the contract that had been drafted. There was some reference made to the accused Doyle being "flaky". During the next call (Crown Production 218), the accused Ronald suggested to John Craig that he and one of the others involved (who subsequently turned out to be the accused Graham) should travel to London to meet him. The accused Ronald explained that the others involved were worried about being arrested and wanted John Craig to reassure them in relation to that and that the contract entered into meant that they could not be "lifted" by the police. On the pretext of having to consult his wife who was facing an operation, John Craig asked for an hour to consider that request.

[62] During a subsequent call on 29 September 2007 (Crown Production 219) he agreed to attend a meeting the following day. The accused Ronald told John Craig what he wanted him to say at the meeting. He indicated that John Craig should (a) only mention the first £2 million, (b) assure them that he was satisfied that the Duke did not wish the police to be involved, (c) indicate that they were not at risk of being arrested, because they were doing the right thing, and (d) mention that the contract stated that when they were travelling with the stolen painting they were acting as Marshalls' agents because that was what was in the contract . John Craig stated that his client did not want him to sign the contract. There then ensued a discussion during which John Craig suggested that they could say that the contract had been signed and that he had faxed a copy of the signed document to the accused Ronald. The accused Ronald then suggested that the person attending the meeting (who had not been named at this stage) could be told that copies of the contract, which had been signed, were in the hands of the solicitors in Glasgow and the Duke's solicitors in Edinburgh.

[63] As previously indicated, the meeting at Euston Station on 30 September 2007 was secretly recorded by the accused Graham. The transcripts of the recording are Defence Production 3 and Defence Production 4, which are reasonably complete. The first transcript discloses that before John Craig arrived, there was some discussion between the accused Ronald and the accused Graham as to what the latter might say. Once the meeting got underway the accused Graham indicated that he would only be involved as long as "we're doing it all proper". John Craig indicated that it was above board, by which, so he explained during in his evidence, he meant that it was being done in accordance with the contract. That was one of the assurances that the accused Ronald had wanted him to give. John Craig explained that his senior investigating officer had authorised him to give those assurances. However, he also went on to state that if he had been asked directly whether the venture was legal he would not have answered the question "yes" or "no". He said he would have indicated that he was not a lawyer and would have said to the accused Graham that he had instructed his own lawyer, who had drawn up a contract.

[64] During the meeting the accused Graham indicated that he wanted it written on a sheet of paper that he was "not doing nothing bad". He explained that one of the worries he had was that he would be followed after he got the painting. When he first raised that concern, he suggested that if John Craig wanted him to take the painting to the nearest police station he would do that. John Craig indicated that he did not wish him to do so and offered to explain why. However the accused Graham cut across him and the conversation moved on. In evidence John Craig explained that he would have been concerned about agreeing to that suggestion because the accused Ronald had indicated throughout that he did not want the police involved. In any event, involving the police in that way during the operation to recover the stolen painting would have been a decision for the senior investigating officer to have taken.

[65] As the meeting at Euston Station proceeded, John Craig informed the accused Graham that a contractual agreement had been signed and was in the hands of two respected legal firms. He explained that until the insurers had been repaid the settlement which the former Duke of Buccleuch had received, the family would not be willing for the matter to enter the public arena. When asked by the accused Graham what the legalities would be if, once he got his hands on the picture, he was "swiped", John Craig explained that the family were not prepared to provide a letter of authority. He indicated if that happened the accused Graham should say that John Craig was the man he was working for, that John Craig had been in negotiations and had drawn up a contract which had been accepted by HBJ Gateley Wareing in Glasgow and Anderson Strathern of Edinburgh, and that both lawyers had copies of the agreement. Before the meeting came to an end, John Craig repeated to the accused Graham that if he was captured he (John Craig) would be the first to stand beside him. That was one of the matters which he had been asked by the accused Ronald to say during the meeting.

[66] During his evidence John Craig accepted that the accused Graham could have taken what he had said as amounting to reassurance that he was not doing anything illegal. However he suggested that any conclusion the accused Graham had reached as to the legality of the operation would be based on his own lawyer's advice. The transcript (Defence Production 4 at page 23) discloses that after John Craig departed the meeting, the accused Graham advised the accused Ronald that John Craig had convinced him he was 100% safe and that it was "just a business deal". He went on to say that he did not feel that he was doing anything illegal, to which the accused Ronald commented that he was not.

[67] There was a further telephone call on 30 September at 2133 (Crown Production 222) during which John Craig repeated that his client, the new Duke of Buccleuch, did not want him to sign any contract until they were in Glasgow and the picture was produced. He went on to indicate that then, if authorised by the Duke of Buccleuch, he would sign anything and make a telephone call and the funds would be with the accused Ronald within 45 minutes. It is unnecessary to deal with what happened during the telephone calls on 1 October, 3 October and 4 October.

Accused Jones

[68] The accused Jones gave evidence that he had been asked by his senior partner, the accused Boyce, to attend the meeting on 30 July 2007 with the accused Ronald, the accused Graham and the accused Doyle. The accused Boyce had indicated that some drafting work might be required. The accused Boyce brought to the meeting some papers that had previously been emailed to him by the accused Ronald. These turned out to be (a) Heads of Agreement, drafted by the accused Ronald; (b) a fairly extensive PowerPoint presentation entitled "The Art Repatriation Project", which related to the stolen painting and had been prepared by the accused Ronald; and (c) a print off from the internet of a lecture entitled "The law and practice of rewards to recover stolen art", which had been given by Mark Dalrymple at an AXA Art Conference ("the AXA paper"). Those papers were subsequently placed in the Boyds papers file, naming the accused Ronald as being the client of Boyds (Crown Production 132).

[69] As I have indicated the meeting at Boyds was secretly recorded. Neither the accused Jones nor the accused Boyce were aware that was happening. No file note of the meeting appears to have been prepared, recording the matters discussed or the advice given. Nor does the other file opened (Crown Production 131) contain any letter from the accused Jones or the accused Boyce to the accused Ronald, dealing with such matters. During the meeting itself the accused Boyce made a few cryptic notes on the back of one of the sheets in the copy of the Heads of Agreement which he had with him and which was subsequently placed in the papers file. However the contents of those notes were not discussed during the evidence.

[70] At the outset of the meeting the accused Ronald outlined the project

of returning the stolen picture to Scotland and the payment of a reward. The repatriation of the painting was conditional upon the negotiation of a reward. According to the accused Jones the accused Ronald made some reference to the PowerPoint presentation and the AXA lecture. The Heads of Agreement narrate that the painting had been stolen from the original thieves as part and parcel of a failed property transaction; that the second thieves wished to repatriate the painting and had asked the accused Graham and the accused Doyle to assist then; and that both the accused Graham and the accused Doyle had experience of repatriating stolen property. The Heads of Agreement also record that the protection of the parties from investigation by the authorities was central to the safe transmission of the painting from the custody of the second set of thieves to the custody of the solicitors. At the meeting it was explained that the accused Ronald, the accused Graham and the accused Doyle were looking for advice that the project outlined would be legal in Scotland.

[71] During his evidence the accused Jones indicated that there had never been any suggestion that either he or the accused Boyce should be parties to the project. Nor had it ever been suggested that they should receive any share of a reward paid. I accepted his evidence on those matters. His evidence was not challenged and I heard no evidence to contrary effect.

[72] The accused Jones indicated that after listening to the accused Ronald for about half an hour he had advised that he thought the next step was to contact the loss adjuster Mark Dalrymple. He suggested Mark Dalrymple would be able to tell them what could or could not be done. The accused Jones indicated that he had been uncomfortable with the accused Ronald holding or having access to the stolen painting before Mark Dalrymple had been approached. That was because as soon as the accused Ronald, or indeed that accused Graham or the accused Doyle, had control of the stolen painting, the owner of the painting would be entitled to ask them to hand the painting over. He had made those concerns clear and had advised about the risks of losing money involved in paying for stolen property, which would then require to be handed over to the police, whether or not any reward was going to be paid. The accused Jones gave evidence that he had suggested to those present that the venture outlined by the accused Ronald would hang or fall on the loss adjuster saying yes. What he had in mind was doing a deal with the loss adjuster, in which the accused Ronald, the accused Graham and the accused Doyle would act as agents for the loss adjuster, who in turn would be acting as an agent for the Duke of Buccleuch. He envisaged that once such a deal had been done, the loss adjuster could speak to J and Frank, the individuals who were in contact with the accused Graham and the accused Doyle and were also in touch with whoever was holding the stolen painting.

[73] During the course of the meeting there was some discussion about the fact that the accused Graham and the accused Doyle knew who J was, J being the individual who could obtain the picture from whoever was holding it. The transcript indicates that accused Boyce said that he did not want to know who J was, lest an action be raised against Boyds seeking information about that matter. The accused Doyle said that he would not tell anyone. He went on to seek advice from the accused Jones and the accused Boyce as to the likely penalty for withholding information from the police, were he or the accused Graham to be asked at a later stage about the identity to J. No advice appears to have been given in response to that request. It was quite clear from the evidence which the accused Jones gave, and from those parts of the transcript that are intelligible, that the discussion of the project or the venture, as it was variously described, proceeded on the understanding that if the stolen painting was returned and a reward was paid, part of that reward would end up in the hands of whoever was currently holding the stolen painting. That individual, of course, was someone whose name was not going to be divulged to the accused Jones or the accused Boyce.

[74] The accused Jones indicated that during the meeting comments had been made about the possibility of the painting being damaged or destroyed, in the event that the project to repatriate the stolen painting did not proceed. However, the accused Jones stated that no threats had been made that would happen. He indicated that during the meeting he had had no sense that what was being planned was unlawful. He stated that he had understood that what was being proposed could be done legally, provided that the loss adjuster went along with it.

[75] The accused Jones gave evidence that he had assumed the loss adjuster had done so, although following the meeting on 30 July he had never enquired of the accused Ronald whether the loss adjuster had ever stated that what was proposed was legal. When asked whether loss adjuster had ever been given an opportunity to express a view on the legality of the venture, he said that he did not know. He merely presumed that he had been. There had been no "come back" from the accused Ronald that what was proposed could not be pursued lawfully. When asked by his own counsel when anyone would have gone to the authorities about the payment of a reward, the accused Jones' answer was limited to saying that he had understood that would have been done at least before the reward was handed over. There was no further discussion of that particular issue during the course of the evidence.

[76] The accused Jones and the accused Ronald had a short meeting the following day. Thereafter their contact with each other was primarily by e-mail, copies of which are to be found in the file (Crown Production 131). During the course of that contact, and before the death of the former Duke of Buccleuch, the accused Jones drafted and the accused Ronald revised a contract, which in the final version mentioned in evidence was in the following terms:-

"MINUTE OF AGREEMENT

between

MARSHALLS, Solicitors 15A Highmeadow Upholland Lancashire WN8 0BE acting for and on behalf of undisclosed principals (the 'Facilitators') ('Marshalls')

and

JOHN CRAIG, PO Box 145 Seymore Place London W1H 4PA acting for and on behalf of The Earl of Dalkeith (the 'Owner') (the 'Intermediary')

WHEREAS:

I 'The Madonna and the Yardwinder' by Leonardo da Vinci (the 'Painting') was stolen from the Owner on or about 27^th August 2003; and

II Marshalls have been given access to a work of art (the 'Picture') that is believed to be the Painting; and

III Marshalls are instructed to facilitate the return of the Picture, if it is the Painting, to the Owner.

IV The Intermediary has agreed to pay the legal costs and expenses of Marshalls Solicitors in facilitating the return of the Painting which shall be agreed in a side letter.

THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:

1. PRE-COMPLETION ARRANGEMENTS

1.1 Marshalls shall confirm that the Picture is available and a date shall be agreed (the 'Completion Date') for the Picture to be made available to the Intermediary.

1.2 The Intermediary shall transmit the amount of £2,000,000.00 (the 'Funds') into the client account of Marshalls the details of which are:-

Sort Code 40 42 30

Account Number 51701304

HSBC

331 Lord Street

Southport

Merseyside

PR8 1NJ

no later than three working days prior to the Completion Date.

1.3 The Facilitators' agents will then arrange for the safe transportation of the Picture to the agreed location. For the avoidance of doubt, the individuals undertaking the task of moving the Picture to the agreed location will be deemed to be acting under and in terms of this Agreement to facilitate the safe repatriation of the Painting and the Intermediary acknowledges that they are acting as his servants or agents at that point in time.

1.4 The Intermediary warrants that he had no person acting on his or the Owner's behalf of under the direction of either of them or an agent of theirs has given any notification or information relating to the terms of this Agreement (nor will do so until after the Completion Date) to the law enforcement agencies. In the event that the Facilitators' agents are intercepted by the law enforcement authorities and the Picture is removed from the control of the Facilitators' agents and subsequently discovered to be the Painting, the Completion will be deemed to have taken place and the Funds will be released to the control of Marshalls.

1.5 Marshalls shall hold the Funds to the order of the Intermediary and no one else pending confirmation from the Intermediary that Completion has taken place, whereupon the Intermediary grants his irrevocable mandate in respect of the Funds to Marshalls to distribute the Funds according to the instructions that Marshalls have from their undisclosed principal.

2. EXAMINATION AND RETURN

2.1 Marshalls shall make the Picture available to the Intermediary and to David Restor a professional competent to confirm the authenticity of the Picture as being the Painting (an 'Examiner') at the offices of HBJ Gateley Wareing (Scotland) LLP, 146 West Regent Street, Glasgow at a time to be agreed.

2.2 The Intermediary and the Examiner shall have full and unfettered, but supervised, access to the Picture for a period of up to three hours for the purposes of confirming that the Picture is the Painting.

2.3 Upon the Examiner and the Intermediary being satisfied that the Picture is the Painting, the Intermediary will confirm that Completion has taken place.

2.4 In the event that the Intermediary does not confirm that Completion has taken place, the Picture shall be returned to Marshalls as not being the Painting, and the Funds shall be returned to the Intermediary, together with any accrued interest.

3. POST COMPLETION

3.1 The Intermediary and the Owner shall have no interest in the source of the Painting or in the disposal of distribution of the Funds.

3.2 The Intermediary and the Owner undertake to indemnify Marshalls and to free and relieve them of any and all liability, howsoever arising, out of the return of the painting to the Intermediary and/or the Owner, and in respect of any claim by any third party who may claim a right to or interest in the Painting (including, but without prejudice to the foregoing generality) any insurer of the Painting or the Owner.

4. CONFIDENTIALITY

4.1 The parties to the Minute of Agreement, and the principals for whom they act and who they bind by virtue of their execution of this deed, undertake to make no disclosure of any sort relating to the terms of this Agreement unless and until required to do so by operation of law, beyond the following phrase:

'An undisclosed sum was made available to secure the repatriation of this painting'

4.2 The parties to this Agreement, or such subsequent agents as the principals may appoint, shall agree on any future publicity, media rights or other disclosure that may be made.

4.3 The parties hereto undertake to bind any and all third parties to whom details of this Agreement may pass by virtue of the necessity to instruct them in connection with any matter relating to the implementation of this Agreement including (but not limited to) David Restor."

[77] The accused Jones gave evidence that on 11 September 2007, at the request of the accused Ronald, he had emailed him two versions of that contract, one in the terms set out in the preceding paragraph and the other under deletion of para. IV in the preamble, which refers to the side letter about fees.

[78] Shortly before 4 October the accused Jones discovered that the accused Ronald was putting up £350,000 in cash to acquire possession of the painting before it was brought to Scotland. He said that he had advised the accused Ronald against doing so.

Crown evidence

[79] The Crown led the evidence of James Tierney, Victor Mass and Detective Sergeant Colin Burnie. The first two witnesses spoke to having met with the accused Ronald after he had been released on bail, following his arrest on 4 October 2007. During that meeting the accused Ronald had confessed to having used funds held by him for James Tierney, who one of his clients, to purchase the stolen painting. Detective Sergeant Burnie gave evidence of having interviewed the accused Ronald under caution on 4 October 2007. Crown Production 240 is the transcript of that interview.

[80] I turn now to comment on the credibility and reliability of certain of the evidence I heard.

Accused Graham

[81] I did not find the accused Graham an impressive witness. On a number of occasions during his evidence I was very firmly of the view that he was not telling the truth. On other occasions I considered he was not telling the whole truth. That was partly because of the lack of detail he went into when he answered certain of the questions he was asked, partly because he claimed that he was not interested in the identity of the person holding the painting and partly because of the somewhat vague, evasive and unconvincing manner in which he answered some of the questions he was asked about his own activities in connection with the website "Stolen Stuff Reunited", which he and the accused Doyle had operated.

[82] I had the very clear impression that the accused Graham knew much more about the identities of J and Frank than he was prepared to speak about in his evidence, although I recognise that he was not questioned in as much detail about such matters as he might have been. Standing the fact that the evidence suggested that the accused Graham and the accused Doyle had had a number of meetings with J and Frank, I also found his evidence that he knew nothing about the identity of the person who was said to holding the painting unconvincing and I was not prepared to accept it.

[83] Throughout his evidence, I had the recurring impression that the accused Graham was speaking to a theme which he was very anxious to stress. That theme was that he had only been prepared to proceed with the project if he received legal advice that it was lawful to do so. For all these reasons and also taking into account his demeanour in the witness box, I did not accept his evidence that his involvement in the venture to the return the stolen painting to Scotland had been as innocent and as law abiding as he claimed it to have been. On that basis, I was not prepared to accept the evidence of the accused Graham that if John Craig had not said all that he did during the meeting at Euston Station he would definitely not have proceeded with the project.

David Restor and John Craig

[84] I found the evidence of the two undercover agents, David Restor and John Craig, to be credible and reliable. They were both cross-examined in some detail, about entries in the transcripts of telephone conversations in which they took part and about particular answers they gave during their evidence. During their examination-in-chief by senior counsel for the accused Ronald and in cross-examination on behalf of the other accused there were a number of occasions when the questioner appeared to have overlooked the fact that in their contact with the accused Ronald (and in the case of John Craig when he met the accused Graham) the undercover agents had been acting out the roles which they had been instructed to adopt and from which they could not depart, even temporarily. Nothing that was said during the exchanges between those witnesses and those who questioned them has caused me to doubt the overall credibility and reliability of the evidence of David Restor or John Craig or has persuaded me that either or both of them had not been acting in good faith.

Accused Jones

[85] As far as the accused Jones is concerned I had little difficulty in accepting the evidence he gave about what happened during the meeting on 30 July 2007, although on account of the poor quality of the transcripts of the recording there was some difficulty in being clear about precisely what had been discussed. Likewise when he was taken through the contents of his file (Crown Production 131), which contained documents involved during his subsequent dealings with the accused Ronald, I accepted his evidence about what had passed between them.

[86] What I was less convinced about was his evidence on the topic of whether the project in which the three accused from England were involved was considered to lawful. That topic was undoubtedly raised during the meeting in Glasgow on 30 July 2007, when the discussion proceeded on the basis that the accused Ronald, the accused Graham and the accused Doyle stated that they were intent on behaving lawfully and sought advice as to how the stolen painting could be lawfully returned to Scotland and to the Duke of Buccleuch on payment of a reward.

[87] On numerous occasions during his evidence, the accused Jones touched on the issue of whether the return of the painting was considered to be lawful. He frequently did so at the invitation of the questioner. At various points during his evidence he made comments to the effect that he had never thought that the venture was unlawful; that there was no suggestion that anything done in the past by the accused Ronald and his clients in relation to the stolen painting had been unlawful; that during the meeting on 30 July 2007 and subsequently there had never been any suggestion that the accused Ronald, the accused Graham or the accused Doyle were prepared to act unlawfully; that the loss adjuster had never suggested that what was being planned for the future might be unlawful; and that at no stage had he ever had any sense that there might be anything unlawful in the venture. In my opinion, all of that evidence presupposes the accused Ronald, the accused Graham and the accused Doyle had been entirely honest in their dealings with the accused Jones and that the accused Jones never had any concerns to the contrary effect.

[88] Neither at that meeting nor subsequently was any enquiry made by the accused Jones, or for that matter by his partner the accused Boyce, to obtain further information from the accused Ronald, the accused Graham and the accused Doyle as to how they came to be in possession of information about the stolen painting, or about the full extent of the information. The accused Jones gave evidence that following the meeting on 30 July 2007 he did not study the PowerPoint presentation, nor read through the full terms of the AXA paper. I found that surprising, in view of the fact that when Boyds were first consulted it had been mooted by the accused Ronald and his clients from England that the return of the stolen painting would be effected without the police being involved and that the parties involved in transmitting the stolen painting from whoever was holding it to the solicitors, where it would be verified and handed over, should be immune from investigation. It must also have been clear from the outset that at least part of the reward payable for the return of stolen painting would end up in the hands of whoever was currently holding the painting, who on any view was guilty of some criminal offence.

[89] I found the evidence of the accused Jones that he had never thought, or had any cause to consider, that there was anything unlawful about the planned return of the painting to Scotland difficult to accept and I did not do so. I reached that conclusion in light of number of factors - (a) the artistic significance and value of the painting, who owned it and the circumstances in which it had been stolen; (b) the circumstances in which the accused Graham and the accused Doyle claimed to have come by information relating to the stolen painting; (c) the fact that one of the matters upon which the accused Doyle indicated that he wished advice was the penalty that might be imposed were he to prosecuted for failing to cooperate with the police, which he made clear he would do, were he to be questioned by the police about J's identity; (d) the terms of the contract the accused Jones drafted and which the accused Ronald revised, which referred to the accused Ronald acting for undisclosed principals, namely J and Frank, whose full identities the accused Ronald claimed to be unaware of; (e) the concession the accused Jones made during his evidence that the contract he had drafted could be described as being of the "no questions asked type"; (f) what the accused Ronald had told him about a separate side letter relating to fees, which falls to be considered along with the request that he had received to provide the accused Ronald with two versions of the contract, one referring to the side letter and the other not; (g) the advice the accused Jones gave to the accused Ronald in the email of 23 August 2007 (Crown Production 131 page 58) that "we have to be careful here and maintain a distance between you and us on the one hand and the third parties on the other", the third parties including the accused Graham and the accused Doyle, clients of the accused Ronald; and (g) his own lack of enquiry of the accused Ronald as to when it was proposed the police would be informed that a reward was going to be paid. I found equally unconvincing his evidence that he thought that it was for the loss adjuster and not for him to consider whether the project was lawful and that he had assumed that the loss adjuster had done so, without his having made any enquiry of the accused Ronald on that point. It was the accused, after all, rather than the loss adjuster, who was a lawyer.

[90] In reaching those conclusions, I did not ignore the fact that once John Craig was in contact with the accused Ronald, the accused Jones had also been deceived, as were the other accused, into believing that John Craig was a loss adjuster acting for the Duke of Buccleuch. I also took into account the fact that as was accepted by his counsel, the learned Dean of Faculty, it would be not be unlawful in Scotland for the owner of a stolen painting to voluntarily pay by way of a reward for the return of a stolen painting such sum he wished to pay, even if part of that reward was ultimately going to find its way into the hands of the original thief or of others, who were in one way or another criminally involved in the retention of the painting from its lawful owner.

Discussion

[91] The commission of a conspiracy of the nature with which the accused are charged is liable to involve some engagement between one or more of the conspirators and another party who is willing to pay, or in the position to arrange, a reward.

[92] During any trial relating to the charges on the indictment, it would be open to the Crown to argue that the accused Ronald had taken the first step to bring about such an engagement, when he wrote to Mark Dalrymple. On receipt of that letter Mark Dalrymple contacted the police. It would have been surprising had he not done so.

[93] Standing the evidence I heard and having regard to the terms of the agreed police statement of the present Duke of Buccleuch, it is quite clear that during August 2007 police investigations continued into the robbery and the recovery of the stolen painting. The stolen painting is of artistic significance and has a considerable value. I see no reason for rejecting the evidence given by John Craig that in August 2007 the primary objective of the police was to recover the stolen painting, rather than to arrest and prosecute anyone who may have been involved in the robbery of the painting or who may have been holding or otherwise involved with the stolen painting since the date of the robbery. I also accept his evidence that the police regarded as ancillary to the main purpose of the police operation any arrests that might be made.

[94] When the issue of entrapment is raised, it is necessary to consider whether the law enforcement agencies involved have acted in good faith. One factor of relevance is whether at the time they mounted their operation in relation to the accused being prosecuted, the police were entitled to entertain a reasonable suspicion that criminal acts had been committed or were about to be committed. In the light of the evidence I heard, I am quite satisfied that when Mark Dalrymple received the letter of 10 August 2007, the police were entitled to entertain such suspicions. When the police were contacted by Mark Dalrymple they decided that he should not be involved with the accused Ronald. The decision was taken that further contact with the accused Ronald should be made by undercover officers. Having regard to the approach which the police had adopted during the earlier discussions involving the man called Brown, an approach which had attracted the cooperation of the present Duke of Buccleuch, that decision is perfectly understandable. In my opinion the gravity of the original robbery, the artistic significance and the value of the stolen painting, the outcome of the earlier efforts to recover it, the terms of the letter sent to Mark Dalrymple and the expressed unwillingness of the accused Ronald to contact the police, were more than sufficient to warrant the senior investigating officer and his colleagues being suspicious that the accused Ronald, the unnamed clients he mentioned in his letter and others associated with them may have been involved in criminal activity relating to the stolen painting. Although the precise details of and the reasons for the suspicions held by the police were not explored during the evidence to the extent they might have been, there would have been some limits on how far it would have been appropriate to have done so. On that topic, I refer to the observations of Lord Scott of Foscote in R v Looseley at para. [125] that it would be unfair during a hearing of a plea in bar of trial to expect the police to have to divulge the nature of all of the police intelligence on which their suspicions had been based.

[95] The existence of grounds for the police be suspicious that the accused Ronald and others were engaged in criminal activity is only one factor against which it can be measured whether the police were acting in good faith. There are others. In assessing whether an undercover operation mounted by police officers or other agents of the state should be considered as having been acceptable, it is also an important factor whether the undercover operation was authorised. This one clearly was and the contrary was never suggested. There were frequent references to David Restor and John Craig acting under the direction and the supervision of senior investigating officers. They were also required to complete National Undercover Officers' Report Books (Defence Production 2 for the accused Jones).

[96] As far as the deployment of the undercover officers and their use of pro-active techniques are concerned, such is the nature of the operations on which the police had been engaged since the robbery took place, it would have been surprising if the view had been taken that the safe recovery of the painting could be effected, or that evidence might be obtained, against those involved in the robbery of or subsequently holding the stolen painting, without such techniques being employed. The main objective of the police was to recover the stolen painting. However, the police operation also involved investigating the circumstances in which the robbery had taken place, in whose possession the stolen painting had been since the robbery and the approaches which had been made about the possible return of the stolen painting upon payment of a reward. An operation involving some use of undercover agents is the type of police operation one would expect to follow the theft of an extremely valuable work of art. In my opinion the police decision to proceed in such a way can be deemed to have been both sensible, from an operational point of view, and proportionate.

[97] The police decision to deploy the undercover agents David Restor and John Craig involved their adopting roles in which they held themselves out being employed in occupations other than that of a police officer. The adoption of such roles necessarily involved the deception of those the undercover officers came into contact with, deception not only as to who the undercover officers were, but as to what they had done and were prepared to do. When John Craig was in contact with the accused Ronald (and on the occasion he met the accused Graham), he played the role of a loss adjuster acting on behalf of the Duke of Buccleuch. He did so in the light of his experience and very importantly after consultation with and under the direction of his senior investigating officer. Contrary to what was suggested to John Craig it was not for him to act out more than one role when he was in contact with the accused Ronald or with the accused Graham.

[98] It is clear from the transcripts of the numerous telephone conversations which were referred to during the evidence, and also from the evidence I heard about the meeting at Euston Station, that what was said and done by David Restor, and in particular by John Craig, was calculated to deceive the accused Ronald (and through him others, including the other four accused) into believing a number of matters including that:-

(a) John Craig was a loss adjuster,

(b) that he was in contact with, and authorised to act on behalf of, initially the former Duke of Buccleuch and latterly the present Duke of Buccleuch,

(c) that the Duke of Buccleuch was prepared to pay a reward for the return of the stolen painting,

(d) that the Duke of Buccleuch and John Craig were prepared to proceed along the lines set out in the contract drafted by the accused Jones and the accused Ronald and the proposed timetable annexed to the letter of 26 September 2007, which had emailed to John Craig (Crown Production 254),

(e) that as discussed during the meeting at Euston Station, John Craig, in his capacity as a loss adjuster, considered that proceeding along those lines would be lawful and above board,

(g) that if those involved in transporting the stolen picture from England to Scotland were intercepted by the police John Craig would support them by confirming to the police that signed copies of the contract were held in solicitors' offices in Glasgow and Edinburgh

(h) that the Duke of Buccleuch and his family were agreeable to the confidentiality sought by the accused Ronald for his clients and others with whom he and his clients might wish to be in touch in connection with the stolen painting, and

(i) that no steps had been taken by the Duke of Buccleuch to involve the police.

Nor can it be disputed that what was done and said by David Restor and John Craig was calculated to reassure the accused Ronald (and those in the background) that the reward talked about would be paid following upon the safe return of the stolen painting to Glasgow.

[99] In considering what inferences may have been drawn by the accused from what the undercover officers said, it is appropriate to have regard to a number of factors. What David Restor and John Craig said was said when they were "in role". Those who heard what was said, or had it reported to them, would have understood that they were dealing with a loss adjuster and an art expert, not with a police officer or a lawyer. In my opinion, what may have been inferred from what John Craig said and the views he expressed, must be assessed in that context and the reliance claimed to have been placed by the accused on what he said should be assessed in a similar context.

[100] In my opinion, it also has to be taken into account that the views John Craig expressed during the meeting at Euston Station related to contractual arrangements, which had been set out in a contract drafted by the accused Jones and the accused Ronald. Subject of course to the discussions that had taken place earlier as to the level of the reward that would be payable, those contractual arrangements were presented to John Craig and accepted by him. They describe a transaction which would have been lawful in Scotland if (a) the accused Ronald (and his clients, the accused Graham and the accused Doyle) had not engaged in any criminal activity, when acquiring information about or taking possession of the stolen painting, or seeking and negotiating a reward, and (b) John Craig had been duly authorised by the Duke of Buccleuch to negotiate and arrange for the payment of the reward. Leaving to one side the position as between the Duke of Buccleuch and the insurers, which would have been for them to resolve, as far as the law of Scotland is concerned, there would have been nothing unlawful involved in the Duke of Buccleuch as the owner of the stolen painting (or on behalf of all the owners of the painting) paying, and the accused Ronald taking receipt of, a reward of the sum specified in the contract. The provisions of the Theft Act 1968 have no application in Scotland.

[101] I turn to deal with the Minutes lodged on behalf of the individual accused. All of these proceed on the basis that they apply to the whole proceedings under the indictment. No question arises of the pleas in bar of trial only applying to charge 1. It was a matter of agreement that if a plea in bar of trial is well founded no trial would take place on either charge. It is also a matter of agreement that the devolution issues raised on behalf of each of the accused do not raise any questions separate from those that do not fall to be addressed in connection with the pleas in bar of trial on the basis of entrapment.

Accused Ronald

[102] In his Minutes the accused Ronald founds on the actings of the three Crown witnesses who he called to give evidence. He contends that on a number of occasions he was actively encouraged to engage in the alleged criminal acts. It is alleged that but for this active encouragement he would not have done so. It is contended that it would be oppressive and unfair for proceedings relating to the alleged criminal conduct to be continued against the accused Ronald. The Devolution Minute merely alleges that the same facts render the proceedings incompatible with Article 6 and 8 of the Convention.

[103] On the basis of the evidence I have heard there is no doubt that the accused Ronald was deceived by what was said to him by all three of the Crown witnesses that he was in contact with. In particular there is no doubt that the accused Ronald was deceived into believing that John Craig was a loss adjuster, who was authorised to act for the Duke of Buccleuch. As the accused Ronald was obviously, for whatever reasons and with whatever motive, intent on entering into some kind of arrangements or contract with the Duke of Buccleuch, it can be inferred that he took more than reassurance from what John Craig said. The deception of the accused Ronald by John Craig provided the accused Ronald with the opportunity of making the arrangements for the return of the stolen painting to Scotland that he subsequently did.

[104] Through his counsel the accused Ronald claims he was induced into committing offences which he would not otherwise have committed. That is not a conclusion I am prepared to reach on the evidence before me. On the contrary, the evidence I heard establishes that that the accused Ronald was one of the driving forces behind the project to return the stolen painting to Scotland in return for the payment of a reward and that he had embarked on that project some weeks before he was in contact with John Craig. Furthermore it is clear from the detailed Heads of Agreement and the PowerPoint presentation the accused Ronald prepared in advance of the meeting in Glasgow on 30 July 2007 (see Crown Production 132); from the evidence about his dealings with John Craig in seeking the payment of an additional £2 million into a personal foreign bank account on the pretext that was to cover his claim for legal expenses; from his telephone conversations with John Craig immediately preceding the meeting at Euston Station, during which he discussed with John Craig what the latter should say during the meeting with the intention of deceiving the accused Graham; and from the evidence as to how he appears to have been acquired the funds necessary to have £350,000 in cash available to be handed over by the accused Graham, in exchange for possession of the stolen painting; that he was a man who was throughout seeking to take the project forward in a planned and determined manner.

[105] In the whole circumstances, on the basis of the evidence before me, I am far from being persuaded that the deception brought about by John Craig and David Restor, or any conduct on the part of the senior investigating officers, caused the accused Ronald to commit offences which he would not otherwise have committed or to become involved in more serious offences than he would otherwise have become involved in. On the contrary, the evidence demonstrates that once the accused John Craig engaged with the accused Ronald, it was the latter rather than the former who in the main indicated what he wanted to happen and the former rather then the latter who went along with what the other suggested. Accordingly I reject the suggestion that the operation was driven by the police. I have reached a contrary view. What the police did was to offer the accused Ronald an opportunity to commit offences of the nature with which he is charged. As there is evidence that he had already embarked on carrying out those offences before he wrote to Mark Dalrymple, engaging with John Craig, who he understood to be a loss adjuster acting for the Duke of Buccleuch, was an obvious route by which the commission of those offences could be pursued.

[106] As far as the sums which John Craig agreed to pay are concerned, I reject the suggestion that the sums were so large as to amount to undue inducement to the accused Ronald. In that regard the history of events is of importance. It was the accused Ronald who first mentioned the figure of £700,000, as being the sum that would require to go to the person holding the stolen painting, and that five other persons would also want a share of the reward. I accept that during the telephone call on 29 August 2007 (Crown Production 212) John Craig mentioned the figures of £1.5 million and £2 million. He did so after the accused Ronald referred to the fact that at least £700,000 was required. It was also the accused Ronald who subsequently sought a further £2 million by way of legal expenses. I accept John Craig's explanation as to why sums totalling at least £4 million were offered. That explanation was that it was thought appropriate to offer sums in line with what had been offered to the man called Brown in order to keep the efforts to recover the stolen painting on track. In any event the total figure is not significantly out of line with the 10% figure mentioned in the AXA paper.

[107] I also reject the submission that bad faith on the part of the police is demonstrated by the fact that neither the undercover officers nor the senior investigating officers directing them sought to persuade the accused Ronald to involve the police in the repatriation project. In my opinion had either undercover officer made such a suggestion it could well have prejudiced the police efforts to bring about the safe recovery of the stolen painting. Advising the accused Ronald that he should work with the police would have been entirely contrary to the view that he had already expressed, namely that he did not want the police to be involved. Similarly I reject the suggestion that the willingness of the police to allow the accused Ronald to put up his own money was indicative of bad faith on their part.

[108] As is clear from the speeches of Lord Nicholls, Lord Hoffman and Lord Hutton in R v Looseley at paras. 25, 71 and 100, the ultimate test is whether the conduct of the undercover agents or of the police has been so seriously improper that to allow the prosecution of the accused Ronald to proceed would compromise the integrity of the judicial system. I have reached the view it was not. On the basis of the evidence before I am not persuaded that the deception perpetrated by the undercover officers incited the accused Ronald to embark on the commission of a crime that he did not already intend to commit. Indeed some of the actings alleged against him in the indictment had already taken place. Moreover there is no suggestion that either of the undercover officers committed any criminal offence himself. The undercover roles they adopted and the deception in which they engaged constituted an appropriate approach towards achieving the main purpose for which they were designed, namely the safe return of the stolen painting. In the event, they also presented the accused Ronald with the opportunity of committing crimes of the nature of which he is charged, crimes which there was reason to believe the accused Ronald could have been involved in. In my opinion, when all the relevant circumstances are taken into account, it cannot be said that allowing the accused Ronald to stand trial on the charges the Crown has brought against him would constitute an affront to public conscience and would compromise the integrity of the judicial system and bring the administration of justice into disrepute. I accordingly repel the plea in bar of trial on his behalf and refuse the Minutes lodged in his name.

Accused Graham

[109] As I have already indicated I do not accept all the evidence that the accused Graham gave. Nor do I accept the submissions made on his behalf that the evidence led during the hearing has failed to demonstrate that the accused Graham or any other accused conspired or attempted to commit extortion. Without infringing the principle that questions as to the guilty or innocence of the accused on the charges they face are not matters for me, there can be little dispute that during the hearing I heard evidence that the Crown would be able to rely on in seeking convictions of each of the five accused. Equally I heard other evidence that could readily be relied upon by the defence counsel as pointing to the innocence of the individual accused. What I have not considered, and what it would be quite wrong for me to express a view about, is whether I have heard a sufficiency of evidence that would warrant refusing any no case to answer submission on behalf of any of the five accused.

[110] It is quite clear that the accused Graham was deceived by the role John Craig adopted during his dealings with the accused Ronald. On the basis of the reports he had received from the accused Ronald the accused Graham was clearly deceived into believing that the accused Ronald had negotiated an agreement with a loss adjuster who was working for the Duke of Buccleuch. However, having regard to the evidence I heard, I reject the suggestion that John Craig or the police more generally acted as they did in order to involve individuals such as the accused Graham in the return of the stolen painting to Scotland, at a time when they considered that such individuals were entirely innocent of any criminal wrongdoing as far as the stolen painting was concerned. When the undercover officers engaged with the accused Ronald, the actings alleged in the indictment were underway.

[111] That remained the position on 30 September, the date of the meeting at Euston Station. It appears clear that during the meeting at Euston Station the accused Graham was reassured that John Craig was who he claimed to be, namely a loss adjuster acting for the Duke of Buccleuch. Following that meeting he also believed (a) that John Craig had entered into a contract with the accused Ronald; (b) that the agreement had been signed by the accused Ronald and on behalf of the Duke of Buccleuch; (c) that John Craig and the Duke of Buccleuch were prepared to implement that contract and enable the stolen painting to return to Scotland in a manner which was lawful and above board; (d) that John Craig would not involve the police prior to the stolen painting being handed over in Scotland; and (e) that in the event that the accused Graham was arrested whilst taking the stolen painting to Scotland he would be deemed by the terms of the contract to be acting as an agent for John Craig, who in turn was the agent of the owner of the stolen painting

[112] If one proceeds on the assumption that the accused Graham committed the offences of which he is charged, it is clear that, as with the accused Ronald, the accused Graham took advantage of the opportunity to commit those offences that was presented by John Craig making contact with the accused Ronald. However it is also necessary to consider whether what John Craig said to the accused Graham during the meeting at Euston Station might have gone further than merely presenting him with the opportunity to commit the charges he faces. By prior agreement with the accused Ronald, and at the request of the accused Ronald, John Craig lied during that meeting and misled the accused Graham not only about his being a loss adjuster acting on behalf of the Duke of Buccleuch, but about a number of matters he claimed to have done in that capacity. Those lies and misrepresentations included (a) concealing from the accused Graham that he had agreed to pay the accused Ronald the additional sum of £2 million into a foreign bank account; (b) stating that the contract had been signed; (c) indicating that there were copies of the contract in the safes of solicitors in Edinburgh and Glasgow; (d) making comments which could be construed as amounting to assurances of legality; (e) indicating that the Duke of Buccleuch would not involve the authorities; and (f) explaining what John Craig would do and how those transporting the picture would be deemed to be acting as his agents, in the event that they were arrested whilst taking the stolen painting to Scotland.

[113] Against the background of what was claimed to have been a measure of concern developing amongst at least some of those involved in the venture with the accused Ronald, it was argued that what John Craig said during the meeting was calculated to encourage and to persuade the accused Graham (and through him others, including the accused Doyle) to remain involved in the venture and to participate in the delivery of the stolen painting to the offices of the accused Jones and the accused Boyce in Glasgow. I accept that whether or not the accused Graham is guilty or innocent of the charges he faces, the actings of John Craig during the meeting at Euston Station could be viewed as having encouraged the accused Graham to remain involved in the venture and to do whatever he subsequently did when he took the stolen painting to Glasgow. On the other hand, even if the accused Graham committed those offences, that does not mean that John Craig's actings at the meeting at Euston Station induced him to commit an offence which he would not otherwise have committed or an offence of a different nature to that which he is charged with having been involved in for some weeks prior to the date of the meeting at Euston Station. Any encouragement provided by John Craig at the meeting at Euston Station related to the accused remaining involved in a venture which for the purpose of this hearing I require to assume (and which in any event the evidence establishes) had been underway for some time.

[114] Several weeks before the meeting at Euston Station the deception perpetrated on the accused Ronald by John Craig, had led to the accused Graham and the accused Doyle being deceived. They were both aware in general terms of what the accused Ronald had been doing since he was first in contact with John Craig. They had both remained involved in the venture that had taken them to Boyds' offices on 30 July 2007. In these circumstances, anything that John Craig said during the meeting at Euston Station could only have persuaded the accused Graham to have remained involved in the venture in which he had been engaged for some time. What John Craig said was calculated to achieve that, although it should not be ignored that on the day of the meeting at Euston Station, the accused Ronald may also have been putting pressure on the accused Graham which was designed to ensure that he and the accused Doyle both remained involved.

[115] As I have indicated I had serious reservations about the credibility of some of the evidence given by the accused Graham, in particular his repeated assertion that he would only have proceeded with the project if he had legal advice that it was lawful to do so. I found that protestation impossible to reconcile with his obvious willingness to become involved with J and Frank. In these circumstances, I have not found it easy to decide what to make of the evidence he gave about his reaction to what happened during the meeting on Euston Station. After giving the issue very careful consideration I have reached the conclusion that what John Craig said during the meeting went further than merely reassuring the accused Graham that John Craig was who he claimed to be. Standing the fact that John Craig had been informed that one of those involved, namely the accused Doyle, was described as being "a bit flaky", I am persuaded that no matter how carefully John Craig chose his words, what he said was calculated to have encouraged the accused Graham, and others to whom he might report, to remain involved in the venture, and that it was to be anticipated that might happen.

[116] I also take the view that what was said to John Craig at the meeting was intended to reassure the accused Ronald that the return of the stolen painting to Scotland was going to proceed in the manner that the accused Ronald wanted it to. Standing the fact that the prime objective of the police operation was to bring about the safe return of the stolen painting, it is understandable why the senior investigating officer instructed John Craig to adopt the approach that he did. By this stage the police had a copy of the contract, whose terms envisaged that agents of the accused Ronald would be transporting the stolen painting to Scotland (Crown Production CP 254), that those who were going to be involved in that exercise were worried about being arrested and that one of those involved was the person who was going to attend the meeting (Crown Production 218). Had John Craig not been authorised to proceed as he did, it might have led to the accused Ronald becoming suspicious of John Craig. Had that happened the operation to recover the stolen painting might have been imperilled.

[117] As far as the accused Graham is concerned, I have reached the view that had John Craig not been authorised to attend the meeting at Euston Station, or had he declined to say during the meeting what the accused Ronald wanted him to say, it is possible that one or both of the accused Graham and the accused Doyle would not have been prepared to proceed with the venture in the manner and on the dates that they did. Standing the reservations I have about the credibility of the evidence of the accused Graham, and in the absence of any evidence from the accused Ronald and the accused Doyle, it can only have been a matter of speculation as to what would then have happened. There are a number of possibilities. The accused Ronald, who clearly remained convinced that John Craig was who he claimed to be, might have been able to persuaded them to remain involved in the project. Another possibility would have been that one or other of the accused Graham and the accused Doyle might have decided to withdraw from the venture completely. But that can only be a matter of speculation. Having regard to the evidence before me and my assessment of that evidence, and in the absence of any evidence from the accused Ronald or the accused Doyle, I am not prepared to reach any firmer conclusion than I have, namely had John Craig not said what he had been asked to say at the meeting, it is possible that one or both of the accused Graham and the accused Doyle would have decided not to proceed with the venture and would not have acted as they did on 3 October and 4 October. The evidence of the accused Graham, about which I had considerable reservations, has not satisfied me that had John Craig not said what he did, during the meeting at Euston Station, he definitely would not have remained involved in the project.

[118] Turning to the issue of the good faith of the police operation as far as the accused Graham is concerned, on the more general aspects of this issue I need not repeat what I have already said. The investigation in which John Craig was engaged was one in which one would anticipate that any undercover officers taking part would be active. This was not an operation in which covert surveillance would have been sufficient. It was one in which the police were entitled to take the view that undercover officers required to engage with one or more of those suspected of being involved in criminal activity. A measure of deception of those engaged with was inevitable. As Lord Hoffman observed in R v Looseley "undercover officers who infiltrate conspiracies to murder, rob or commit terrorist offences could hardly remain concealed unless they showed some enthusiasm for the enterprise. A good deal of active behaviour in the course of an authorised operation may therefore be acceptable without crossing the boundary, between causing the offence to be committed and providing an opportunity for the defendant to do so" (para 69). In my opinion, the same applies to a conspiracy of the nature of which the accused Graham is accused

[119] The approach John Craig took in his dealings with the accused Ronald, and during the meeting at Euston Station, was discussed in advance and authorised by the senior investigating officer. The instructions that John Craig received were clearly given for operational reasons, in the light of the actings and attitude of the accused Ronald, who must increasingly have appeared to be a leading figure in the venture, and the fact that the main objective of the inquiry was to recover the stolen painting. In my opinion the fact that what John Craig said during the meeting at Euston Station resulted in the accused Graham (and others) being misled did not result in the police operation ceasing to be one conducted in good faith.

[120] Turning to a slightly different question, in my opinion the unwillingness of John Craig during the meeting at Euston Station to take up the accused Graham's offer to take the stolen painting to a police station is also not indicative of any lack of good faith on his part. As John Craig said in evidence, were he to have done so that would have been in conflict with the accused Ronald's express wish not to involve the police. Furthermore any suggestion of taking the stolen picture straight to a police station in England would have involved a significant change of plan to what had been provided for in the contract, whose terms placed a considerable emphasis on confidentiality and not involving the law enforcement agencies. Had John Craig agreed to such a change during the meeting at Euston Station, the accused Ronald might have reacted in a manner that prejudiced the safe recovery of the painting.

[121] As the speeches in R v Looseley make clear no one factor is determinative. Having carefully considered all the evidence before me and the submissions made on behalf of the accused Graham, I have reached the conclusion that it has not been established that as far as the accused Graham was concerned the conduct of the police or of the undercover agents acting under their direction and supervision did not cross the boundary between causing an offence to be committed and providing an opportunity for the accused to do so. Nor were the actings of the police and the undercover agents so seriously improper that to allow the accused Graham to stand trial on the charges the Crown has brought against him would constitute an affront to public conscience and would compromise the integrity of the justice system. In these circumstances I repel the plea in bar of trial on his behalf and refuse the Minutes lodged in his name.

Accused Doyle

[122] As far as the accused Doyle is concerned the submissions on his behalf proceeded on the basis that Doyle would only have become involved in the task of repatriating the stolen painting to Scotland if that task could be done legally. That indeed was one of the main cornerstones of the submissions advanced on his behalf. The outline submission lodged in his name stated that "(o)thers involved as intermediaries started to agitate that there was the prospect of breakdown, particularly when Doyle resigned." It also included factual assertions to the effect that the meeting at Euston Station was arranged for the purpose of assuring the accused Graham that everything was legal; that there were contracts in place and that the accused Graham was safe from arrest. It then continues that "at the meeting Craig convinced Graham with a series of lies about contracts in safes, guarantees of safety and the legality of their contract that Graham who did not have control of the painting at that point was persuaded to continue in the venture. Doyle and others who heard a recording of the conversation were likewise convinced to carry on."

[123] Those written submissions, as indeed do many of the oral submissions made on behalf of Doyle, involve assertions of fact relating to the conduct of the accused Doyle, and his claimed unwillingness to act illegally, about which I heard no evidence from the accused Doyle himself, and only very limited hearsay evidence from the accused Graham and the accused Jones. Such contentions also require to be assessed against the background of the assumption on which I require to proceed, namely that that the accused Doyle committed the acts that constitute the offences with which he is charged and that he did so with the necessary intent.

[124] Some of the factual assertions that were advanced are difficult to reconcile with the evidence I heard about the accused Doyle having sought advice during the meeting in the offices of Boyds on 30 July 2007 about the penalties for withholding information from the police about J. That request is hardly consistent with a determination to proceed lawfully. Also relevant are the observations I have already made as to whether the evidence given by the accused Graham provided a full and reliable account of the dealings which he and the accused Doyle had with J and Frank. In all these circumstances, I have not been persuaded that I should reach my decision on the Minute for the accused Doyle on the basis that he was only prepared to proceed lawfully and, by implication, that he had acted throughout on the understanding that what he was doing was lawful.

[125] I need not repeat what I have already said about the evidence of the accused Graham. As far as the accused Doyle is concerned, the fact that he may have been "flaky", the fact that, as with the accused Graham, he may have wished to be satisfied that John Craig was a representative of the Duke of Buccleuch, the fact that he have wanted to have signed contracts and the fact that he may have wished to be assured that everything was lawful and that he would be safe from arrest, could be equally consistent with the attitude of someone engaged in the commission of the offences charged as they are with the innocence of those charges that he claims.

[126] It follows from what I said about John Craig's role having involved deception that I accept that the accused Doyle acted under the belief that John Craig was as a loss adjuster acting for the Duke of Buccleuch. On the assumption that the accused Doyle committed the offences of which he was charged, I am satisfied that he did so by taking advantage of the opportunity presented by John Craig about which he was informed. If prior to 3 October and 4 October 2007, the accused Doyle received a report on the meeting at Euston Station from the accused Graham and listened to the recording of that meeting at Euston Station, I accepted that what he understood John Craig to have said was calculated to have encouraged him and may have encouraged him to remain involved in the venture of returning the stolen painting to Scotland.

[127] However in the absence of any evidence from the accused Doyle, I am not prepared to hold that John Craig's actings induced him to commit an offence which he would not otherwise have committed the offences with which he is charged or that but for what John Craig said during the meeting at Euston Station, the accused Doyle would have withdrawn from the venture before 3 October 2007. On those issues, I am not persuaded that he has discharged the onus of proof which is on him.

[128] Similarly, I have not been persuaded by the evidence I have heard that as far as the accused Doyle was concerned, the conduct of the police or the undercover agents acting under their direction and supervision was so improper that were the accused Doyle to stand trial on the charges the Crown has brought against him that would constitute an affront to public conscience and would compromise the integrity of the justice system. In these circumstances, I have reached the view that the position of the accused Doyle in respect of his Minute is no stronger than that of the accused Graham. In these circumstances, I repel the plea in bar of trial on his behalf and refuse the Minute in his name.

Accused Jones

[129] The Minutes for the accused Jones are in similar terms. They found in particular on the meeting held at Euston Station on 30 September 2007. It is alleged that but for what was said by John Craig during that meeting, the meeting in Glasgow on 4 October would not have taken place. It is contended that had it not been for the active encouragement of the undercover agents the accused Jones would not have engaged in the alleged criminal conduct. It is alleged that it would be oppressive and unfair for proceedings relating to the alleged criminal conduct to be continued against the first accused. The Devolution Minute merely alleges that the same facts render the proceedings incompatible with Article 6 and 8 of the Convention.

[130] Submissions in support of those Minutes were advanced on a number of grounds. It was contended that the primary objective of the police had been to recover the stolen painting, which had involved the police "using" people who had responded to the public advertisement relating to the reward. Such people were to be put unwittingly into the hands of an undercover police operation. It was submitted that the test I should apply was whether the undercover officers had behaved as a non-police officer would have done. They had not done so. That test involved considering what an ordinary loss adjuster would have done. John Craig had not acted as a genuine loss adjuster acting with the authority of the owner of the stolen painting would have done. When the accused Ronald had first been contacted by John Craig he had not been informed that the normal practice in such a situation was to contact the police. He had not been advised that the likely limit for any reward was £100,000.

[131] It was also submitted that following upon Mark Dalrymple's receipt of the letter date 11 August 2007 the police had no reasonable grounds for suspecting the accused Ronald of committing or being about to commit any particular offence. In particular there was no evidence from which it could ever have been suspected that the accused Ronald was involved in the crime of extortion. That was because there had been no evidence from John Craig of any threat having been conveyed to him by or on behalf of the accused Ronald in order to secure payment of a reward.

[132] As far as the accused Jones was concerned it was argued that John Craig could not have entertained any reasonable suspicion of his having committed any offence prior to 4 October 2007 and in particular the crime of reset that it is alleged was committed that day. At the meeting in his offices in Glasgow on 30 July the accused Jones had made it clear that the painting could not be lawfully possessed without the consent of the owner and during his evidence he had indicated that he would only have allowed the painting to be brought to his offices on 4 October on that understanding. It was argued that in his evidence the accused Jones had made it clear that but for the assurance that had come from John Craig, via the accused Ronald, that those bringing the painting would be acting as agents for the owner, he would not have allowed the painting to have been brought into his offices. As the accused Graham and the accused Doyle had not been acting as agents for the Duke of Buccleuch the accused Jones had been entrapped into committing the crime of reset, a crime he would not otherwise have committed. Accordingly the police had crossed the boundary between providing the opportunity to commit an offence and causing the commission of a crime. That had caused the accused Jones to commit any offence he had committed. It was argued that even if it could be justified to involve the accused Jones in the undercover operation designed to recover the stolen painting, it could not be justified to prosecute him for any offence that he had committed.

[133] In my opinion there is no substance to the submission that the police "used" those who responded to the public advertisement. If, as appears to be accepted on behalf of the accused Jones, the primary objective of the police operation was to recover the stolen painting, it is, in my opinion, readily understandable why the police decided to instruct undercover officers to make contact with the accused Ronald. The history of events relating to attempts to recover the stolen painting, the terms of the accused Ronald's letter dated 11 August 2007 (Crown Production 266) and what the accused Ronald said to Mark Dalrymple during his telephone conversation the same day were themselves sufficient to give rise to suspicion that the accused Ronald and others, including his as yet unnamed clients, may have been involved in criminal activities relating to the stolen painting.

[134] On the issue of whether the police had reasonable grounds for suspecting that the accused Ronald had committed an offence, or was liable to commit an offence, the evidence given by David Restor as to what he had understood from what the accused Ronald said during the telephone conversation on 10 August 2007 about the holder of the stolen property being a bit volatile (Crown Production 203 at pages 7 and 9) could have given rise to a suspicion that if a reward was not paid the stolen painting might be damaged or destroyed. Something similar was said by the accused Ronald to John Craig during the telephone conversation on 21 August 2007 (Crown Production 207 at page 17)

[135 ] I also reject the submission that prior to 4 October 2007 the police had never had any grounds for suspecting that the accused Jones might be involved in the commission of an offence. That was not an issue that was explored during the course of the evidence. However following Mark Dalrymple's receipt of the letter of 10 August 2007 (Crown Production 266), it would have been noted by the police that the letter mentioned the names of the accused Jones and the accused Boyce, as well as that of HBJ Gatelely Wareing. The contract, which was subsequently emailed to David Restor on 26 September 2007 (Crown Production 254), also referred to HBJ Gatelely Wareing. Indeed in an earlier email dated 15 September 2007 David Restor had been advised that the meeting at which the stolen painting would be handed over and verified would take place in Glasgow at the offices of HJB Gateley Wareing (Crown Production 251). In any event, as is clear from the speech of Lord Hoffman in R v Looseley (at para. 65), the requirements of reasonable suspicion do not necessarily mean that there must be suspicion of the particular person who committed the offence. The police may, in the course of a bona fide investigation into suspected criminality, provide an opportunity for the commission of an offence which is taken by someone to whom no suspicion previously attached.

[136] As for whether the undercover agents and in particular John Craig behaved how an ordinary loss adjuster would have done, it was quite clear from what the accused Ronald said to Mark Dalrymple and to David Restor that he was not prepared to contact the police (and of course he had not done so). Whilst Mark Dalrymple did speak about his having initially been authorised to agree to an award in the region of £50,000 to £100,000, and that £100,000 was the likely limit, as the AXA paper indicates it is a payment in excess of 10% which is considered to amount to a reward which is contrary to public policy. In the circumstances of this case 10% of the value of the stolen painting is a figure far in excess of £100,000 and not dissimilar to the total sum that John Craig indicated would be paid. In passing it should also be noted that the AXA paper deals with the practice of getting the police to approve awards. Subject to a reference to the provisions of 2(22) and (23) of the Theft Act 1968 (an Act which does not apply in Scotland) the paper does not suggest that the approval of the police is a legal requirement before a reward can be paid. Nor does it deal with any issue as to the legality of different levels of rewards.

[137] Finally in relation to this branch of the argument it is alleged that a genuine loss adjuster would have worked within the authority of the owner of a stolen painting. Any loss adjuster agreeing to the payment of an award, in circumstances in which the recipient was clearly entitled to receive a reward, would obviously act with the authority of the owner (or the owner's insurers). However it is slightly artificial to apply that principle to a situation in which an undercover agent is placed in contact with those suspected of being engaged in some criminal activity associated with a stolen painting. In such a situation neither the police nor the undercover officer nor indeed the lawful owner of the painting would be proceeding on the basis that the person(s) with whom the undercover officer was in contact enjoyed any entitlement to receive any award from the lawful owner.

[138] In my opinion, for the reasons I have previously given, the police did not cross the boundary between offering the opportunity to commit an offence and causing the commission of an offence that would not otherwise have taken place. In this regard it was stressed that the accused Jones had made it clear during the meeting on 30 July that the painting could not be lawfully possessed without the consent of the owner and that he had allowed the stolen painting into his office on 4 October on account of the information from the accused Ronald, which was attributable to John Craig, that those bringing the painting would be acting with the authority of the owner.

[139] That particular submission is a good example of how the presentation of the minute for the accused Jones is inextricably linked with the evidence he gave that he is entirely innocent of the charge he faces. It fails to acknowledge that the terms of clause 1.3 of the contract, which provided that those undertaking the task of moving the stolen painting to the agreed location would be the agents of Marshalls, the name under which the accused Ronald practiced, and that John Craig ("the Intermediary") acknowledged that they would be "acting as his servants and agents as that point in time", were terms which he and the accused Ronald had themselves drafted and revised (see pages 15-46 of Crown Production 131) and which the accused Ronald had then placed before John Craig. Indeed the whole terms of the contract had been accepted by John Craig and no revisals had been proposed by him. Thus the information attributed to John Craig, which is alleged to have caused the accused Jones to allow the painting into his offices on 4 October, originated from what he and the accused Ronald had wanted in the contract.

[140] When the accused Jones gave evidence he was asked repeatedly whether there had ever been any suggestion that the painting could not be returned lawfully and whether there had been any suggestion that those returning the painting to Scotland would not be acting as agents for the Duke of Buccleuch. To these questions he replied that there had not been. However on this branch of the argument I am not persuaded that the evidence I heard amounts to any more than the accused Jones was deceived into thinking that John Craig was a loss adjuster representing the Duke of Buccleuch, who had discussed with the accused Ronald the arrangements for the return of the stolen painting. It was not John Craig who came up with the idea that those who brought the stolen painting from England to the offices of the accused Jones should be regarded as being John Craig's agents. At its highest this chapter of evidence indicates John Craig went along with what the accused Ronald and the accused Jones wanted to him to do in respect of the terms of the contract. John Craig did not offer any objection to the terms of the contract which had been sent to him. Beyond that, I doubt whether the accused Jones would have drawn any more from this chapter of evidence than the fact that because the Duke of Buccleuch would have been expected to have acted lawfully it was reasonable to infer that John Craig, who was understood to be acting as the Duke of Buccleuch's loss adjuster, would also be expected to act lawfully. As I indicated earlier in this Opinion, I was unconvinced by the evidence that the accused Jones gave that throughout he thought it was for the loss adjuster, rather than for himself, to consider whether or not the project was lawful.

[141] On that analysis I am not satisfied that John Craig and the senior police officers directing and supervising John Craig did any more than provide the accused (including the accused Jones) with the opportunity to commit the offences with which they are charged. In my opinion it has not been proved that John Craig incited the accused Jones to act in a manner that he would not otherwise have agreed to act, after he agreed to assist the accused Ronald in the project in which the accused Graham and the accused Doyle were also involved. I do not consider that the fact that John Craig was not instructed by his senior investigating officer to propose any revisals to the terms of the contract falls to be views as constituting incitement. As far as the meeting at Euston Station is concerned there was no suggestion in the evidence that the accused Jones had been told anything about what happened during that meeting prior to 4 October. Whether what the accused Jones did constituted actings from which a jury would be entitled to conclude that he committed the charges he faces is not a matter for me. Likewise whether such a conclusion should be drawn, from what the accused Jones did, is another issue that it is not for me to decide.

[142] As far as the submission relating to the £2 million payment for legal fees is concerned, it is obviously correct that the payment was additional to that referred to in the contract and took the total offered to a figure far in excess of £100,000. As I have indicated the reasons for doing so were explained by John Craig in evidence. In my opinion they were understandable reasons. In my opinion the total of the sums offered did not take the police operation out of the field of good faith nor does it result in it being unconscionable that the accused Jones be prosecuted on the charges he faces.

[143] The learned Dean of Faculty made submissions relating to the allegation of reset, which forms head (j) of the acts alleged to have done in furtherance of the conspiracy libelled in the first alternative to charge 1. The argument was to the effect that because it would be open to a jury to convict the accused of the charge of reset alone, were the case to proceed to trial, the plea in bar should be sustained. That was because whatever might be the position in relation to the rest of the indictment, the police had implicated the accused Jones in the commission of the crime of reset. They had done so by encouraging, and indeed by allowing the stolen painting to be taken to the accused Jones's offices on 4 October, when they knew that the accused Graham and the accused Doyle would not in fact be acting as the agents of the Duke of Buccleuch (or the insurers). They could not have been acting as the agents of the lawful owner(s) of the stolen painting on that date, because the Duke of Buccleuch had not authorised that they been in possession of the stolen painting. As a consequence, the accused Jones had been drawn into the commission of the crime of reset, which was a crime he would not otherwise have committed, at the instigation of John Craig and the police. In my opinion, this submission reformulates in a different way an issue with which I have previously dealt. It was the accused Ronald who proposed that the stolen painting be handed over in the offices of HBJ Gateley Wareing. It was he who suggested that the accused Jones should draft an agreement that would be provided to John Craig. The accused Jones did so and the agreement as revised by the accused Ronald was then given to John Craig. He went along with its terms. In such circumstances I am not persuaded that John Craig or the police did any more that provide the accused with the opportunity of committing offences, including that of reset. It was not for them to prevent the accused, including the accused Jones, from acting in the manner they wished to act. Looking at the issue from the perspective of what the undercover officers and the police knew and understood, I am not satisfied that anything done by John Craig amounted to his positively encouraging or inciting the commission of the offence of reset, or that his participation in the events of 4 October, under the instruction of the senior investigating officer, is indicative of bad faith on his part or on the part of the police.

[144] For these reasons and having regard to the points of a more general nature which I have made in respect of the application of the doctrine of entrapment to the other accused, I am not persuaded by the evidence that I have heard that as far as the accused Jones was concerned the conduct of the police or of the undercover agents acting under their direction and supervision were so seriously improper that were the accused Jones to stand trial on the charges the Crown has brought against him it would constitute an affront to public conscience and compromise the integrity of the justice system. In these circumstances I repel the plea in bar of trial on his behalf and refuse the Minutes lodged in his name.

Accused Boyce

[145] At the conclusion of her submissions, senior counsel for the accused Boyce recognised that his plea in bar of trial fell to be refused. The Advocate depute concurred in that motion. I accordingly refuse the plea in bar of trial and repel the Minutes in his name.