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Don't Switch the Tape off
R v Paul Andrew Bryce (1992) 95 Cr. App. R 320
This case concerns s.78 of PACE Act 1984 and Code C 10.5. Police officers acting "under-cover" have a very difficult path to tread. Whilst an unattended van is not an unlawful trap if set to catch a thief, Williams v. DPP (1993), The Times, March 9, conversations with suspects require careful planning if they are not to be held in breach of the Codes of Practice. To quote the Court of Appeal in the case under consideration, "there would have to be wholly exceptional circumstances, perhaps involving cogent corroboration, before such an interview could be admitted without its having such an effect on the fairness of the trial, that it ought to be excluded under s.78."
In R. v. Paul Andrew Bryce (1992), 95 Cr. App. R 320, an under-cover police officer was alleged to have had a telephone conversation with Bryce about the sale of a Saab car, which it was agreed he could have for £2,800.
The matter started on August 13, 1990, when as a result of information received, the officer using the name "Pearson" made a telephone call to Bryce's mobile telephone. The man who answered confirmed he was Bryce and a conversation took place. The questions and answers culminated in an appointment to meet at 1 pm that day in Smithfield Market. At 1.40 pm Bryce arrived in the Saab (which had been stolen two or three weeks previously). Bryce was accompanied by another man. They looked at the car together and a conversation took place about the alarm and missing stereo. The officer was informed that the stereo had been coded so Bryce had dumped it. Bryce stated the car had been stolen "two or three days". When the bonnet was lifted the police moved in and arrested the two suspects.
At the police station there was a short tape-recorded interview during which Bryce replied, "No comment" to all the questions. That interview began at 1814 hours and, according to the officers, concluded at 1816 hours. The tape was then switched off. While an officer was sealing the tapes, the following conversation is said (by the two officers) to have taken place:
Constable Pullin "Is that everything Paul?" Bryce "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." Bryce "If you record it, I won't say anything." Constable Pullin "Well what happened then?"
According to the officers, Bryce then volunteered that he had met someone he knew at Whitechapel Car Auctions who wanted to sell the Saab for £15,000. Bryce 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: (i) that the telephone conversation and the conversation at Smithfield constituted interviews which ought to have been conducted in accordance with PACE and the Codes of Practice, and as such should be excluded; and (ii) 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. Bryce gave evidence and his story differed considerably.
The appeal was on two grounds; the first raises again the question as to what evidence can be admitted of conversations between a suspect and an undercover police officer, an issue recently addressed in R. v Christou & Wright (1992) 95 Cr. App. R 264, in which a shop was set up named "Stardust Jewellers" which purported to buy and sell jewellery. The object of the exercise was for two undercover officers calling themselves "Gary" and "Aggi" to buy stolen property. Cameras and sound recording equipment was set-up. The cameras clearly identified the property as it lay on the counter and the vendors who produced it.
To maintain their cover the officers engaged in banter with the vendors and also asked questions which a shady jeweller might be expected to ask. Thus, the vendors were asked in which area of London it would be unwise to resell the goods.
In Christou it was argued that Code C of the PACE Act 1984 applied to the conversations between suspects and the undercover officers, so that a caution should have been given. The Court of Appeal rejected that argument, stating that conversations were on equal terms. They concluded, "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."
In Bryce' s case counsel argued that what took place offended against that caveat. He submitted that the evidence, that the appellant turned up in a stolen car in Smithfield as a result of a telephone call, was admissible. However, the conversation on the telephone and at Smithfield should have been excluded because "Pearson" asked questions which were in the nature of an interrogation. They deprived the appellant of the 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 Codes.
In particular counsel pointed to the questions, "How warm is it?" "Is it a couple of days old?" "How long has it been nicked?" Such questions went to the heart of the vital issue of dishonesty. The judgment of the Court of Appeal was that such questions would clearly offend against the caveat in Christou. Those questions were not even necessary to the undercover operation. It would blatantly be an interrogation with the effect, if not the design, of using an undercover pose to circumvent the Code.
In Christou the conversations were filmed; not so here where the appellant had no means of showing by a neutral, reliable record of what was or was not said. For those reasons the trial Judge erred in admitting those answers.
The second ground of appeal concerned the switching off of the tapes. The court upheld the unanswerable submission that there had clearly been a breach of the Code; "the failure to caution the appellant again was not just a technical breach in the circumstances of the case. The appellant may well have believed that what was not recorded would not be given in evidence, hence the importance of the fresh caution. The question "is that everything Paul?" should have been asked before the recorder was switched off.
In quashing the conviction, the court stated that if the interview were to be admitted it would set to nought the requirements of the PACE Act 1984 and the Code with regard to interviews.