R v Bryce
COURT OF APPEAL, CRIMINAL DIVISION
 4 All ER 567, 95 Cr App Rep 320
HEARING-DATES: 9, 18, 26 June 1992
26 June 1992
Criminal evidence -- Exclusion of evidence -- Evidence obtained by undercover police officer -- Off the record confession -- Conversations between defendant and undercover police officer about suspected handling of stolen car -- Off the record confession made by defendant at police station without further caution after tape recorder switched off -- Whether evidence of conversations between defendant and undercover police officer and off the record confession admissible -- Code of Practice for the Detention, Treatment and Questioning of Persons by Police Officers, para 10.5.
The appellant was charged with handling stolen goods and theft. At his trial the evidence against him included a conversation alleged to have taken place when an undercover police officer using a false name and posing as a potential buyer for a car telephoned the appellant and agreed to buy a stolen car, worth £23,000, from the appellant for £2,800. An appointment was arranged for the car to be viewed the following day at a market, where the appellant, when asked how long the car had been stolen, said that it was two or three days. He was then arrested and at the police station made no comments during a recorded interview. However, after the tape recorder was switched off, he said that he would tell the officers what had happened provided it was not recorded. He then stated that he had bought the car for £1,800. At his trial the judge allowed evidence of the conversations on the telephone and at the market and of the unrecorded interview after the tape recorder had been switched off to go before the jury. The appellant was convicted. He appealed on the ground that the evidence of the conversations and the unrecorded interview were inadmissible because the questions asked by the undercover police officer were in the nature of an interrogation and deprived the appellant of his right not to incriminate himself by answering questions which, had they been put by a police officer acting overtly as such, would have required a caution under the Code of Practice for the Detention, Treatment and Questioning of Persons by Police Officers.
Held -- Evidence of the conversations between the undercover police officer posing as a buyer for the stolen car and the appellant in which the officer asked the appellant whether the car was stolen were inadmissible at the appellant's trial for handling stolen goods because, although they were not an interrogation with the effect, if not the design, of using an undercover pose to circumvent the Code of Practice, they went directly to the critical issue of guilty knowledge, they were hotly disputed and there was no contemporary record of them and therefore the appellant had no means of showing by a neutral, reliable record what was or was not said. Similarly, the subsequent interview between police officers and the suspect at the police station which was not recorded at the request of the appellant was also inadmissible because it had clearly been conducted in breach of the Code of Practice, para 10.5 of which provided that after a break in questioning the interviewing officer had to ensure that the person being questioned was aware that he remained under caution and that if there was any doubt the caution ought to be given again in full when the interview resumed. Without a fresh caution the appellant might well have believed that what was not recorded could not be given in evidence. Since the conversations and interviews with the police, both undercover and in uniform, formed such a major part of the prosecution case, the wrongful admission of evidence of those conversations and interviews rendered the appellant's conviction unsafe and unsatisfactory. The appeal would therefore be allowed and the conviction quashed.
Dictum of Lord Taylor CJ in R v Christou  4 All ER 559 at 566 applied.
For the admissibility of confessions and the discretion to exclude relevant prosecution evidence, see 11(2) Halsbury's Laws (4th edn reissue) para 1060.
R v Christou  4 All ER 559,  3 WLR 228, CA.
R v Mealey (1974) 60 Cr App R 59, CA.
R v Rossiter (1992) Independent, 19 May, CA.
R v Sang  2 All ER 1222,  AC 402, HL.
R v Saunders  Crim LR 521, Crown Ct.
R v Woodall  Crim LR 289, Crown Ct.
Union of India v Narang  2 All ER 348,  AC 247, HC.
Appeal against conviction Paul Andrew Bryce appealed with the leave of the single judge against his conviction on 2 May 1991 in the Crown Court at Knightsbridge before Judge Parker QC and a jury for handling stolen goods for which he was sentenced to 12 months' imprisonment. The facts are set out in the judgment of the court.
Martin Thomas QC and Justin Gau for the appellant; Clive Nicholls QC and David Medhurst for the Crown.
26 June 1992. The following judgment of the court was delivered.
PANEL: LORD TAYLOR OF GOSFORTH CJ, MACPHERSON, TURNER JJ
JUDGMENTBY-1: LORD TAYLOR OF GOSFORTH CJ
LORD TAYLOR OF GOSFORTH CJ, (Reading the Judgment of the Court): We allowed this appeal on 18 June. We now give our reasons. Macpherson J is unable to be here this morning, but has indicated his agreement with the judgment I am about to deliver.
On 2 May 1991 in the Crown Court at Knightsbridge the appellant was convicted of handling stolen goods on count 2 of an indictment, which was an alternative to count 1 charging theft. He was sentenced to 12 months' imprisonment. A sentence of one month concurrent was passed in respect of his plea of guilty on a second indictment to a count of having an offensive weapon.
He now appeals against his conviction and sentence on the first indictment by leave of the single judge.
On 13 August 1990, as a result of information received, an undercover police officer using the name 'Pearson' made a telephone call to the appellant's mobile telephone. The man who answered confirmed that he was Paul and the following conversation took place:
'Pearson. This is George, Alan's mate. He has contacted me and said you may have something I would be interested in. Paul. Yes, it is a black 900S convertible Saab.
Pearson. How many miles on the clock? Paul. About 900. George, it is lovely.
Pearson. Is it plated-up? Paul. No, not at the moment. It is sweet.
Pearson. How much are you asking? Paul. 3,000.
Pearson. I will give 2,800. Paul. You have got a deal.
Pearson. It is not plated-up. How warm is it? Paul. It is a couple of days old.'
There were a few more questions and answers, culminating in an appointment to meet at 1 pm that day in Smithfield Market.
At 1.40 pm the appellant arrived at the agreed place driving the Saab in question (which had been stolen two to three weeks previously). The appellant was accompanied by another man in the passenger seat. They both got out. Pearson and Paul had described themselves to each other on the telephone and Pearson said in evidence that he recognised the appellant as Paul. The appellant seemed to recognise him, addressing him as George and apologising for being late. The voice was like that of Paul on the telephone.
They looked at the Saab together. According to 'Pearson' the following conversation took place:
'Pearson. Can I look over the car? Paul. Of course; I have deactivated the alarm.
Pearson. Where is the stereo? Paul. It had a security code on it, so I dumped it.
Pearson. How did you do the alarm? Paul. Removed the wires.
Pearson. How long has it been nicked? Paul. Two to three days.'
There was then some discussion about the condition of the vehicle, after which the appellant, Paul, said: 'We are having two a week away, George. Would you be interested in any others?', to which the answer was: 'Yes, but let's do this one first.'
Pearson then asked to have the bonnet opened. That was apparently a prearranged signal to uniformed officers that the moment for them to move in had arrived. They did so. Asked if he had broken down, the appellant said that the car was a friend's and that he was selling it. He was arrested.
At the police station there was a short tape-recorded interview during which the appellant replied 'No comment' to all the questions. That interview began at 1814 hrs and, according to the officers, concluded at 18.16 hrs. The tape was then switched off. Whilst an officer was sealing the tapes, the following conversation is said by the officers to have taken place:
'Constable Pullin. Is that everything Paul? Appellant. I'll tell you what happened but I don't want it recorded because I don't make statements.
Constable King. Everything has to be recorded to safeguard ourselves. Appellant. If you record it, I won't say anything.
Constable Pullin. Well, what happened then?'
According to the officers, the appellant then volunteered that he had met someone he knew at Whitechapel Car Auctions who wanted to sell the Saab for £15,000. The appellant only had £1,800, and the man sold it to him for that sum. In fact the car was a 'G' registration Saab valued at £23,000.
At the end of the prosecution case, submissions were made: (a) that the telephone conversation and the conversation at Smithfield constituted interviews which ought to have been conducted in accordance with the Police and Criminal Evidence Act 1984 and the Code of Practice for the Detention, Treatment and Questioning of Persons by Police Officers (Code C) issued by the Secretary of State under s 66 of that Act. They were not so conducted and ought therefore to be excluded; (b) that the alleged interview, after the tape recorder had been switched off, was a fresh interview requiring a fresh caution. Since there had not been a fresh caution and the interview was not contemporaneously recorded, it too should be excluded. The learned judge rejected those submissions and the evidence went before the jury.
The appellant gave evidence. He denied that he was the recipient of the telephone call from 'Pearson' on 13 August. That morning a man he did not know, 'Barry', came to his address saying that a friend had told him the appellant might help him. He had a valuable car and wanted to obtain the insurance money by having it stolen. The appellant said that he would be better advised to sell it and give him the telephone number of someone who might help. The appellant also allowed 'Barry' to use his mobile telephone to make the call whilst he, the appellant, went for a bath. He heard the telephone ring but did not hear the conversation. Afterwards 'Barry' said that he had arranged to meet someone at Smithfield Market but did not know the way. The appellant agreed to go with him to show him and assumed that he would receive some payment for doing so. 'Barry' seemed respectable and prosperous and the appellant never doubted the car was his to sell. 'Barry' drove the car. The alleged conversation at Smithfield was denied. So was the alleged conversation after the tape recorder had been switched off at the police station.
This appeal is based upon the same two grounds which founded the submissions before the learned judge.
The first raises again the question as to what evidence can be admitted of conversations between a suspect and an undercover police office, an issue recently addressed by this court in R v Christou  4 All ER 559,  3 WLR 228. There a jeweller's shop (Stardust Jewellers) was set up, manned by two undercover officers, Gary and Aggi, and fitted with video cameras and sound recorders. The object was to recover stolen property, brought in by thieves or handlers, and to obtain evidence against them. It was argued that Code C applied to the conversations between suspects and the undercover officers, so that a caution should have been given.
This court rejected the argument for reasons set out as follows ( 4 All ER 559 at 566,  3 WLR 228 at 237):
'In our view, although Code C extends beyond the treatment of those in detention, what is clear is that it was intended to protect suspects who are vulnerable to abuse or pressure from police officers or who may believe themselves to be so. Frequently, the suspect will be a detainee. But the code will also apply where a suspect, not in detention, is being questioned about an offence by a police officer acting as a police officer for the purpose of obtaining evidence. In that situation, the officer and the suspect are not on equal terms. The officer is perceived to be in a position of authority; the suspect may be intimidated or undermined. The situation at "Stardust Jewellers" was quite different. The appellants were not being questioned by police officers acting as such. Conversation was on equal terms. There could be no question of pressure or intimidation by Gary or Aggi as persons actually in authority or believed to be so. We agree with the learned judge that the code simply was not intended to apply in such a context. In reaching that conclusion, we should ourselves administer a caution. It would be wrong for police officers to adopt or use an undercover pose or disguise to enable themselves to ask questions about an offence uninhibited by the requirements of the code and with the effect of circumventing it. Were they to do so, it would be open to the judge to exclude the questions and answers under s 78 of the 1984 Act.'
Here Mr Thomas QC argues that what took place offended against the final caveat in the passage cited. He submits the evidence that the appellant turned up in a stolen car at Smithfield as a result of a telephone call was admissible. However, the conversation on the telephone and at Smithfield should, he submits, have been excluded because 'Pearson' asked questions which were in the nature of an interrogation. They deprived the appellant of his right not to incriminate himself by answering questions which, had they been put by a police officer acting overtly as such, would have required a caution under the code. In particular, Mr Thomas points to the question and answer on the telephone: 'Pearson. How warm is it? Paul. It is a couple days old' and the question and answer at Smithfield: 'Pearson. How long has it been nicked? Paul. Two to three days.'
Those questions went to the heart of the vital issue of dishonesty. They were not even necessary to the undercover operation, which was designed to provide evidence of the appellant in possession of a recently stolen car offering it for sale at a knock-down price. Moreover, the second question simply invited the appellant to repeat his answer to the first in more specifically incriminating terms.
On the voire dire 'Pearson' was asked in cross-examination what he would have done had the appellant said the car was not stolen. He replied:
'If he had said, "It is not stolen", I would have asked other questions, Sir. What are you doing selling a motor car like that? What is wrong with it? Is it an import? Has it come from abroad?'
In our judgment, that series of questions by an undercover officer would clearly offend against the caveat this court stated in R v Christou. It would blatantly have been an interrogation with the effect, if not the design, of using an undercover pose to circumvent the code.
The two questions of which Mr Thomas makes strongest complaint did not go as far as that. They were single, isolated questions in separate conversations. There was no extended interrogation. However, they did go directly to the critical issue of guilty knowledge. Moreover, they were hotly disputed and there was no contemporary record. In R v Christou there were questions from the undercover officers as to the area where it would be unwise to resell the goods, the answers being obliquely an indication that the goods had been or may have been stolen from that area to the knowledge or belief of the suspect. However, in that case the whole interview was recorded both on tape and on film. The circumstances to be considered by the learned judge in that case in deciding whether the admission of the evidence would have an adverse effect on the fairness of the trial and how adverse were therefore quite different from those in the present case. The film and sound record eliminated any question of concoction. Not so here. The questions asked were direct, not oblique, the conversation was challenged and the appellant had no means of showing by a neutral, reliable record what was or was not said. For those reasons we consider that the learned judge erred here in admitting those answers.
We turn to the second ground. At the police station, an interview was properly set up and conducted in accordance with the code. It was tape-recorded, timed and it began with a caution. However, its only yield was a succession of 'No comment's from the appellant. It is submitted that what followed was clearly in breach of the code. The officers assert that after the tape recorder was switched off the appellant said he did not wish anything written down, but then proceeded to volunteer an account which in effect contained an admission.
Mr Thomas submits, first, that the appellant ought to have been cautioned again or reminded of the caution in accordance with para 10.5 of Code C, which provides:
'When there is a break in questioning under caution the interviewing officer must ensure that the person being questioned is aware that he remains under caution. If there is any doubt the caution should be given again in full when the interview resumes.'
The tape-recorded interview had concluded; what followed was therefore at the very least 'a break in questioning'. In our judgment, that submission is unanswerable. The failure to caution the appellant again was not just a technical breach in the circumstances of this case. According to the police, once the recorder was switched off, the appellant said he wanted nothing written down. He repeated that, saying, 'If you record it, I won't say anything.' The officer's reply, 'Well, what happened then?' might reasonably have been taken as an acceptance of the appellant's terms. The appellant may well therefore have believed that what was not recorded could not be given in evidence. Hence the importance of a fresh caution or reminder of it. Significantly, as Mr Nicholls QC for the Crown fairly pointed out, the officer does not claim to have asked the question, 'Is that everything Paul?' until he was already sealing the tapes. One might have expected that question to have been asked before the recorder was switched off.
Mr Thomas further submits that the alleged admissions by the appellant were not recorded contemporaneously and, for that reason too, they should have been excluded. It was strenuously denied by the appellant that any such admissions were made and indeed that any interview, on or off the record, occurred after the tape recorder was switched off.
If this interview was correctly admitted, the effect would be to set at nought the requirements of the Police and Criminal Evidence Act 1984 and the code in regard to interviews. One of the main purposes of the code is to eliminate the possibility of an interview being concocted or of a true interview being falsely alleged to have been concocted. If it were permissible for an officer simply to assert that, after a properly conducted interview produced a nil return, the suspect confessed off the record and for that confession to be admitted, then the safeguards of the code could readily be bypassed.
In our judgment there would have to be some highly exceptional circumstances, perhaps involving cogent corroboration, before such an interview could be admitted without its having such an adverse effect on the fairness of the trial that it ought to be excluded under s 78.
Here the situation was a classic example of that suspicious sequence -- a total denial or refusal to comment, followed by an alleged confession, followed in its turn by a refusal to sign the notes and a denial that the confession was made. We have no doubt that the alleged interview should in the circumstances of this case have been excluded.
Since the conversations and interviews with the police, both undercover and in uniform, formed such a major part of the prosecution case, we were bound to hold that the irregularities identified above rendered the conviction unsafe and unsatisfactory. Accordingly we quashed the conviction.
Appeal allowed. Conviction quashed.
Registrar of Criminal Appeals; Crown Prosecution Service.