R v PARRIS

COURT OF APPEAL (CRIMINAL DIVISION)

89 Cr App Rep 68, [1989] Crim LR 214

HEARING-DATES: 25 October, 1 November 1988

1 November 1988

CATCHWORDS:
Evidence -- Admissibility -- Breach of Codes of Practice -- Suspect Held Incommunicado -- Effect of Breach of Police and Criminal Evidence Act 1984 (c 60), s 58, Code C of the Codes of Practice made thereunder (s 66) (ISBN 0 11 340624X).

HEADNOTE:
By section 58 of the Police and Criminal Evidence Act 1984:

"(1) A person arrested and held in custody in a police station or other premises shall be entitled, if he so requests, to consult a solicitor privately at any time . . . (4) If a person makes such a request, he must be permitted to consult a solicitor as soon as is practicable except to the extent that delay is permitted by this section . . . (6 Delay in compliance with a request is only permitted -- (a) in the case of a person who is in police detention for a serious arrestable offence; and (b) if an officer of at least the rank of superintendent authorises it . . . (8) An officer may only authorise delay where he has reasonable grounds for believing that the exercise of the right conferred by subsection (1) above . . . (a) will lead to interference with or harm to evidence connected with a serious arrestable offence or inteference with or physical injury to other persons; or (b) will lead to the alerting of other persons suspected of having committed such an offence but not yet arrested for it; or (c) will hinder the recovery of any property obtained as a result of such an offence . . ."

By section 78:

"(1) In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court should not admit it . . ."

The appellant was arrested for armed robbery and taken to a police station where a superintendent ordered he be kept incomunicado. When first interviewed the appellant was cautioned but refused to answer questions and asked to see a solicitor, which request was refused. Three hours later he was again interviewed and cautioned and agreed to talk provided that nothing was written down. He then made a number of admissions which amounted to a full confession of his complicity in the robbery. Later at a third interview in the presence of a solicitor he refused to answer questions. AT his trial the appellant denied being involved in the robbery and stated that the police had invented the alleged admissions. His counsel submitted that there had been a breach of section 58 of the Police and Criminal Evidence Act 1984 and paragraph C 51 of the Code of Practice in that the police had refused the appellant access to a solicitor. The trial judge ruled that there had been no breach and consequently there was no obligation upon him to consider excluding the admissions made by the appellant on the basis of section 78(1) of the 1984 Act. The appellant was convicted and appealed against the judge's ruling:

Held, allowing the appeal, since the senior officer concerned had not directed his mind to the matters listed in section 58 of the Police and Criminal Evidence Act 1984, the failure to procure a solicitor was thus a breach of section 58 and the Code of Practice. Such a breach did not mean that any statement made by a defendant thereafter would necessarily be ruled out; but because the trial judge erroneously concluded that there had been no such breach, he never directed his mind to the question of "fairness" under section 78(1) of the 1984 Act. On the facts of the present case had the judge so directed his mind, he would have concluded that the admission of the evidence would operate unfairly and would have excluded it. Thus, since it was conceded that that was the only evidence of any value against the appellant, the conviction would be quashed.

[For ss 58, 78 of the Police and Criminal Evidence Act 1984, see Archbold (43rd ed), paras 15-38, 85; for Code C of the Police and Criminal Evidence Act 1984 (s 66) Codes of Practice (ISBN 0 11 340624X), see, ibid, 15-46.]

INTRODUCTION:
Appeal against conviction.

On June 1, 1987, in the Crown Court at Wood Green (Judge Gerber) the appellant was convicted by a majority of 10 to two on two counts of armed robbery and on one count of having a firearm with intent to commit an indictable offence. He was sentenced to concurrent terms of nine years' imprisonment.

the facts and grounds of appeal appear in the judgment.

The appeal was argued on October 25, 1988.

COUNSEL:
Kenneth Cameron (assigned by the Registrar of Criminal Appeals) for the appellant; Nigel Askham for the Crown.

JUDGMENT-READ:
Cur adv vult November 1.

PANEL: Lane CJ, Boreham, Farquharson JJ

JUDGMENTBY-1: LANE CJ

JUDGMENT-1:
LANE CJ read the following judgment of the Court: On June 1, 1987, in the Crown Court at Wood Green this appellant was convicted by a majority verdict of robbery on count 1 and of having a firearm with intent on count 2. He was sentenced to nine years' imprisonment on each count to run concurrently.

He now appeals against conviction by leave of the single judge.

The facts upon which the prosecution based their allegations were these. The robbery took place at about 6.30 on the evening of Sunday August 31, 1986, at a Do-it-Yourself depot in North London. The staff were closing the premises at the time in preparation for going home. Four men came into the building wearing motor cycle gear with balaclava-type hats under their crash helmets. One was wearing a green jacket and trousers (or possibly green overalls); two were wearing khaki type clothing. They seized three of the employees and took them into an office. One of the robbers was armed with what appeared to be a baseball bat, and another produced a shotgun. They demanded to know the numbers of the safe. The deputy manager having been kicked and butted in the face, said that he knew what the number was and he was taken with a gun held to the back of his head to the manager's office. The robbers then opened the safe and removed some 30,000 in cash and some 8,000 in cheques which they put into bags. The manager was then taken back to the other office where he and his two colleagues were tied up and there they were locked in. The robbers then left.

Three days later the appellant was arrested and cautioned. In the house where he was living were found, in a bag behind a chest of drawers, a pair of gloves; on top of a wardrobe 19 10 notes; in the bottom of the wardrobe a pair of green trousers; behind a hardboard partition a Barclays Bank cloth bag; in the washing machine a green balaclava-helmet, a pair of green overalls and a pair of black woollen gloves; another pair of black woollen gloves were found elsewhere; in the garage was found a white crash helmet, two more balaclava, another pair of woollen gloves and a baseball or rounders bat.

The appellant was, after his arrest, taken to the police station where he arrived at 6.40 am. Superintendent Buchan, who was in charge of the operation at that stage, authorised him to be held incommunicado. The appellant was interviewed at 7.30 am and was again cautioned. He said that he wanted his solicitor to be present and declined to answer any questions. The interview was therefore brought to an end.

He was again inteviewed at 10.45 am and again cautioned. According to the police he said that he was prepared to talk providing the answers were not written down. He then made a number of admissions which amounted, in effect, to a full confession of his complicity in the robbery. Amongst other things he said, "They just used me. They told me they had a job planned, and they wanted to use my place." He said that it was only "about 30 grand" which had been stolen, that he had never touched the gun and that he had only received some 300.

At 2.30 pm the custody officer was informed that the appellant was no longer to be held incommunicado and at 5.30 pm he was allowed to see his solicitor. A third interview then took place in which he declined to answer questions.

The appellant in due course gave evidence before the jury. He said that he knew nothing about the robbery and had spent the whole of that Sunday until about 10 pm at his parent's house. His parents both gave support to that account. He gave explanations for the various articles which had been found in the house.

So far as the interview at 10.45 am was concerned, he asserted that the two police officers had simply made up the answers to their own questions and had, in short, fabricated the admissions which he was alleged to have made. He had refused to sign the notes of the interview.

At the appropriate stage in the trial Mr Cameron, on behalf of the appellant, submitted to the judge that there had been a breach by the police of the provisions of section 58 of the Police and Criminal Evidence Act 1984, and of the corresponding provisions of the Code of Practice. The learned judge ruled that there had been no breach and that consequently there was no obligation upon him to consider the question of excluding the admissions by the appellant on the basis of section 78(1) of the 1984 Act.

It is now conceded by the prosecution -- and rightly so -- that there was a breach of the Act and Codes of practice by the police prior to the 10.45 am interview.

Section 58(1) of the Act provides that, "A person arrested and held in custody in a police station or other premises shall be entitled, if he so requests, to consult a solicitor privately at any time."

Section 58(4) provides that, "If a person makes such a request, he must be permitted to consult a solicitor as soon as is practicable except to the extent that delay is permitted by this section."

Section 58(6) provides: "Delay in compliance with a request is only permitted -- (a) in the case of a person who is in police detention for a serious arrestable offence; and (b) if an officer of at least the rank of superintendent authorises it."

Section 58(8) provides that an officer may only authorise delay where he has grounds for believing that the exercise of the right conferred by subsection (1) . . ." (a) will lead to interference with or harm to evidence connected with a serious arrestable offence or interference with or physical injury to other persons; or (b) will lead to the alerting of persons suspected of having committed such an offence but not yet arrested for it; or (c) will hinder the recovery of any property obtained as a result of such an offence."

Thus after the 7.30 am interview, when the appellant requested that he should have access to a solicitor, he was entitled to be given that facility, unless the relevant officer both had a reasonable ground for believing the matter set out in subsection (8) and did in fact so believe (see Samuel [1988] 2 WLR 920). Superintendent Buchan, who was the officer in charge at the material times, came to the conclusion, correctly, that this was a serious arrestable offence, but then ordered that the appellant should be held incommunicado. This was under the provisions of section 56 of the Act and of rule C 51 of the Codes of Practice which provide that an arrested person may on request have one person known to him or who is likely to take an interest in his welfare informed as soon as practicable of his arrest and whereabouts. The exercise of this right may be delayed only on grounds similar to those contained in section 58(8) of the Act as already set out.

The order to hold the appellant incommunicado was, not unnaturally, interpreted by the custody officer to mean that the appellant was allowed to see no one. No steps were taken to procure a solicitor.

As became clear from their evidence, neither of the two senior officers concerned. Superintendent Buchan and Superintendent Sinclair who came upon the scene a little later, directed their minds to the question whether or not there were grounds for believing that any of the adverse consequences set out in section 58(8) would result if the appellant were allowed access to a solicitor. There was, in addition, no evidence that such grounds existed in fact.

Therefore the failure to procure a solicitor was a breach of the provisions of section 58 and the corresponding rules.

By section 67(11) of the 1984 Act, in all criminal and civil proceedings the Codes of Practice shall be admissible in evidence; and if any provision of the Codes appears to the Court to be relevant to any question arising in the proceedings, it shall be taken into account in determining the question.

Section 78(1) of the Act provides as follows:

"In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it."

A breach of the Act or Codes does not mean that any statement made by a defendant after such breach will necessarily be ruled out. Every case has to be determined on its own particular facts.

Mr Cameron on behalf of the appellant submits that the Judge should first of all have ruled that the police were in breach of the Act and the Codes. That much is now conceded. He further submits that having come to that conclusion the Judge should, under the powers given to him by section 78, have ruled that the alleged admissions in the 10.45 am interview should not be given in evidence. The judge, it is contended, should have reasoned as follows: owing to a breach of the Act and Codes, no solicitor was present at the material interview; if a solicitor had been present he would probably have advised the appellant to say nothing; the appellant would probably have accepted that advice; if he had, there would have been no admissions. It would accordingly have an adverse effect on the fairness of the proceedings to admit the evidence and it should have been excluded.

Unfortunately, because the judge came to an erroneous conclusion that there had been no breach of the Act or Codes, he never directed his mind to the question of "fairness" under section 78. Our task is, we conceive, to put ourselves as far as possible in the position of the Judge and, on the basis that there was indeed a breach which had to be taken into account, to decide whether the learned judge should have ruled the evidence of the interview as inadmissible.

At the trial Mr Cameron did not seek to argue this point in the absence of the jury on a voir dire, as he might have done, but elected (in order very properly to save time) to argue the point in the presence of the jury, thus avoiding the necessity of going over all the same ground twice. The result of this was that the police officers concerned were not only cross-examined about their failure to allow access to a solicitor, but also, again probably to save time, they had put to them the appellant's version of events, namely that he had said nothing incriminating to the police at the 10.45 am interview or at all, and that the police had wickedly made up the answers in order to incriminate him. This was his case when he later gave evidence on oath, a fact which is irrelevant for our purposes, since we must judge matters as at the time the submission was made.

What then were the circumstances to which under the provisions of section 78 the judge had to pay regard in coming to his conclusion? First of all the appellant had been cautioned on a number of occasions, and had demonstrated his grasp of the situation by declining to answer questions at the 7.30 am interview when he made his request for the attendance of his solicitor. Mr Cameron submits that the Judge was not entitled to take into account what had been put to the police witnesses, namely that they had concocted the alleged admissions and that the appellant had said nothing. He submits that questions put and denied are not evidence. With that particular contention we do not agree. The appellant's version of events as divulged in questions was all part of the circumstances.

Secondly, the appellant himself, by denying that he had made any admissions to the police, was saying, inferentially, that the absence of a solicitor had made no difference to him so far as maintaining silence was concerned.

Mr Askham for the prosecution submits that in the light of those circumstances the presence of a solicitor would have made no difference to the appellant and that the Judge should properly have come to the conclusion that the admission of the evidence would have no effect on the fairness of the proceedings. We very much doubt whether that submission is correct. It is to say the least likely that the presence of a solicitor at 10.45 am would have resulted in the appellant remaining silent. The fact that when a solicitor did eventually arrive the appellant declined to say anything supports this view.

There is another aspect of the matter. One reminds oneself that at the time when these points were under consideration by the Judge, the question whether the appellant's version or that of the police was true had not yet been decided. On the appellant's version of events he was faced with interrogation at the 10.45 am interview without any solicitor being present. By rule C 65, when a person has been permitted to consult a solicitor and a solicitor is available at the time the interview begins or is in progress, he must be allowed to have his solicitor present when he is interviewed. Thus if the rules had been observed, a solicitor would doubtless have been present at the interview. He would, if the police had fabricated the interview, have been able to confirm that fact in evidence. Alternatively his presence would have at least discouraged any such fabrication.

If all these matters had been present in the Judge's mind he would, we believe, have concluded, and rightly concluded, that the admission of the evidence would operate unfairly and would have excluded it.

Since it is conceded that the only evidence of any value against the appellant was what was reported by the police to have been said by him in the 10.45 interview, and since in the judgment of this Court that evidence should not have been admitted by the Judge, we have no alternative but to allow this appeal and the conviction is accordingly quashed.

DISPOSITION:
Appeal allowed. Conviction quashed.

SOLICITORS:
Crown Prosecution Service, Wood Green.