The Police Officer's Notebook.

When it comes to the use of documents to refresh the memory the basic proposition is: provided that the document in question was made substantially at the same time as the occurrence of the event to which it relates, and provided also that it was made, read over by, or prepared under the supervision of the witness, that witness may use the document in giving evidence in order to refresh the memory.

There is no rule that the document must have been compiled for any particular purpose, however the best and most reliable memory refresher is a note made at the time of the events referred to, and compiled for the express purpose of subsequent use in the witness box. Perhaps the best example is the police officer's notebook, to which this article will be restricted.

It should be said immediately that verbatim reading directly from the written text is wrong, it is not the notebook which is evidence but the witness's own oral testimony given from a memory refreshed by reference to the notes. "May I refer to my notes" does not mean, "may I read my notes" - although see R v Bryant and Dickson (1931) Cr. App. R. 146, 150 (witness no independant recollection of the facts).

In 1882 Lord Brampton wrote an address to constables in the preface to Vincent's Police Code, "In detailing any conversation with an accused person, be sure to state the whole conversation from the commencement to the end in the very words used; and, in narrating facts, state every fact whether you think it material or not, for you are not the judge of its materiality. Tell, in short, everything, as well that which is in favour of the accused, as that which is against him, for your desire and anxiety must be fair, and assist the innocent; and not convict any man by unfair means, such as by suppressing something which may tell in his favour, even though you feel certain of his guilt...

Notes: I cannot too strongly recommend every constable, however good he may fancy his memory to be, to write down word for word every syllable of every conversation in which an accused has taken part, and of every statement made to him by an accused person, and have that written memorandum with him at the trial." Cited in Gerald Abrahams, Police Questioning and the Judges' Rules, London, 1964, pp 14-15 & [1971] Crim.L.R. 212.

Obviously in a perfect world, officers will achieve this goal. However where events described in the notebook have passed in a quick succession before their eyes, this is not easily accomplished. Fortunately, courts have realised that policemen are not possessed of a superhuman memory as the first case below indicates.

In R v Bass (1953) 117 J.P. 246, the evidence against the defendant rested entirely upon answers given to questions put by two police officers. The second ground of appeal was that the officers' notes were almost identical. They were not made at the time of the interview, one officer made them after the defendant had been charged, the other made them an hour later. At the trial the officers denied that they had been prepared in collaboration. The defendant asked that the jury should be allowed to inspect the notebooks, but the application was refused.

The appeal was allowed on the ground that the jury should have been given the opportunity of reading the notes. The Court of Appeal said, "This court has observed that police officers nearly always deny that they have collaborated in the making of notes, and we cannot help wondering why they are the only class of society who do not collaborate in such a matter. It seems to us that nothing could be more natural or proper when two persons have been present at the same interview.....that they should afterwards make sure that they have a correct version of what was said. Collaboration would appear to be a better explanation of almost identical notes than the possession of a superhuman memory." Byrne J, then gave some excellent advice, he said, "the confidential nature of the notebooks could probably quite easily have been achieved with the assistance of a pin or a piece of sticking-plaster so that only the relevant pages could be read" (two of those very large paper-clips are just as good).

The Home Office responded promptly to Bass by issuing Circular No. 172/54 which publicised the fact that the practice of collaboration was lawful and proper.

In R v Owen (1986) 83 Cr.App.R. 100, it was argued that Byrne J's judgment in Bass, supra, has been misunderstood. Owen had been arrested for alleged theft. Shortly after the theft he was confronted with the female victim accompanied by a police officer. Two other police officers then arrived. The officers all corroborated in making their notes which said that Owen was seen shaking the victim with his hands around her neck. When giving evidence the victim made it clear that Owen had not touched her. The Court of Appeal were not prepared to place any limitation on the extent to which corroboration over observed incidents should be allowed in the preparation of notes, nor restrict what was said in Bass.

In R v Cheng [1976] Crim.L.R. 379, the police officer concerned no longer had the relevant notebook and sought to refresh his memory from a statement he had prepared from his notebook and used at committal proceedings. The defence objected because it was only a partial not exact copy of the notebook. The Judge ruled that the officer could refer to his statement and the defendant was convicted. He appealed.

The Court of Appeal reviewed the authorities and stated it must take care not to deprive itself by new artificial rules of practice of the best chances of learning the truth. On the authority of Horne v MacKenzie (1893) 6 Cl & Fin 628, the court concluded, "If the statement in this case, or any other transcription of notes in other cases, is substantially what is in the notes and there is evidence to that effect, then the Judge should allow the witness to refresh his memory from the statement or transcription as the case may be." The important factor is that the copy is an accurate copy of the original note.

The Court considered that the authority of Horne, supra, resolved the case: the appeal was dismissed.

In Attorney General's Reference (No 3 of 1979) (1979) 69 Cr.App.R. 411, briefly the point of law referred was whether a police officer who had taken brief jottings in the course of interviewing an accused person; which he within two hours expanded into his notebook entry, should be able to refresh his memory from the notebook. The trial Judge had ruled that the officer could only refresh his memory from the jottings and since the officer could not decipher many of the jottings or recollect the full content of the questions and answers the defendants were acquitted.

The Court of Appeal answered the question in the affirmative stating that Archbold was correct, "...a witness may refresh his memory by reference to any writing made or verified by himself concerning and contemporaneously with, the facts to which he testifies".

In R v Mills and Rose [1962] Crim.L.R. 629, "M" and "R" were detained in police cells where they carried on shouted conversations of an incriminating nature. These conversations were overheard by a police constable, who gave evidence of what he heard. When he gave evidence he refreshed his memory from a note he had prepared with the aid of a tape recorder which he installed in the empty cell opposite those occupied by "M" and "R". It was argued that in so far as the evidence depended upon the tape recording it was hearsay.

The Court of Criminal Appeal held that the evidence was first-hand and admissible. The constable had set a machine to perform the function he would otherwise have performed with his own hand and used the record to refresh his memory. On the question of a breach of the Judges' Rules (now the Codes of Practice) the Court said, "the Court would not accept the proposition advanced that the effect of the Judges' Rules, is once a prisoner has been cautioned he is thereafter in a state of asylum and entitled to feel himself free from eavesdropping or potential use against him of anything said in his cell. To say that was not to give approval to any possible practice of installing microphones in cells. "M" and "R" had brought upon themselves what they suffered by shouting incriminating observations to each other. The terms of the caution was a warning against such behaviour."

As the commentary states at [1962] Crim.L.R. 631, "The argument based on the Judges' Rules - that the prisoner should be able 'to regard the cell as his sanctuary, his castle,' goes far beyond anything previously laid down for the protection of the prisoner and, it is respectfully submitted, was rightly rejected." It is submitted that this is still true with the Codes of Practice: if prisoners wish to shout to each other in the cell block (There is evidence that it does happen) then they take it upon themselves.

With most of the case law in this article, many of the hearsay problems discussed would be avoided now by applying one of the modern statutory rules, in this case s.82(1) of the Police and Criminal Evidence Act 1984 which defines confession as, "includes any statement wholly or partly adverse to the person who made it, whether made to a person in authority or not and whether made in words or otherwise". Even before PACE the common law would have accepted the words as a statement adverse to the defendant's case and admissible as an exception to the hearsay rule.

In R v Kelsey [1982] Crim.L.R. 435, the defendant was charged with burglary. A witness of an incident concerning a car involved was permitted to refresh his memory by referring to a note of a car number made by a police officer at the time of the incident. The witness confirmed its accuracy at the time when it was read out by the officer although the witness did not actually examine the note when it was written. The police officer gave evidence that the note was the one he had made at the time. The defendant was convicted and appealed.

In dismissing the appeal the Court of Appeal said, there was no magic in verifying by seeing as opposed to hearing. What had to be shown was that the witness verified in the sense of satisfying himself while the matters were fresh in his mind.

A different situation arose in Jones v Metcalfe [1967] 1 W.L.R. 1286, where an eye-witness to a road traffic accident took the registration number of a lorry, the bad driving of which was said to have caused a collision between two vehicles. The eye-witness reported the number to the police, who as a result interviewed the defendant, and obtained his admission that he had been driving a lorry of that number on the relevant day. He denied, however that his driving had been such as to cause the accident. At the hearing before magistrates for driving without due care and attention, the eye-witness was unable to remember what the number of the lorry was.

The police officer's evidence, which included an account of what he had been told by the eye-witness, was hearsay and inadmissible. All three members of the Queen's Bench Divisional Court, reluctantly quashed the conviction on the ground that there was no evidence upon which the justices were entitled to find that a lorry of the number recorded was that responsible for the accident. The artificility of the position is proved when you consider that the eye-witness would have been able to give the required evidence, by refreshing his memory from the police officer's note, had he verified it contemporaneously.

S.68 of the Police and Criminal Evidence Act had provided for the admissibility of any record compiled by a person acting under the duty to do so to be admitted in criminal proceedings. The broad effect of s.68 was to admit first- hand hearsay evidence. It was found that s.68 was not wide enough to include statements taken by the police, see R v O'Laughlin and Mclaughlin (1987) 85 Cr.App.R. 157. The aim of Part 11 of the Criminal Justice Act 1988 is to establish a completely new system for the admissibility of documentary evidence in criminal cases. S.68 of the Police and Criminal Evidence Act was therefore repealed by the 1988 Act.

By s.23 of the 1988 Act a statement made by a person in a document shall be admissible in criminal proceedings as evidence of any fact of which direct oral evidence by him would be admissible if: s.23(3)(a) the statement was made by a police officer or some other person charged with the duty of investigating offences, and (b) the person who made it does not give oral evidence through fear or because he is kept out of the way. It is submitted this could include a police officer's notebook, subject to subsection (4) which does not make admissible a confession which would otherwise not be admissible.

By s.24 of the 1988 Act a statement in a document shall be admissible in criminal proceedings as evidence of any fact of which direct oral evidence would be admissible if the following conditions are satisfied: (i) the document was created or received by a person acting in the course of a trade, business, profession or other occupation, as the holder of a paid or unpaid office: and (ii) the information contained in the document was supplied by a person (whether or not the maker of the statement) who had, or might reasonable be supposed to have had, personal knowledge of the matters dealt with. It is submitted that this could cover the type of note taking situations in R v Kelsey and Jones v Metcalfe, supra.

It is common practice for prosecution witnesses to read notes or statements made in the past. In the case of the police officer these are usually in his notebook, made at the time or more likely as soon afterwards as is practicable. There seems nothing sinister about a police officer reading these notes prior to entering the witness box; it has already been pointed out that police officers do not have superhuman memories.

In Owen v Edwards (1983) 77 Cr.App.R. 191, the defendant was charged with an offence under s.5 of the Public Order Act 1936. A policeman, made notes about the incident and refreshed his memory from his notebook outside the court but did not refer to the notebook while giving evidence at the defendant's trial. Counsel for the defence then asked to see the notebook to check whether there were any discrepancies between the notes contained therein and the oral evidence which had been given. The policeman said he had only looked at part of his notes, but did not formally object to the inspection. The justices ruled that the defence could inspect the notebook but not cross-examine on it. The defence did not examine the notebook. The defendant was convicted.

It was held by the Queen's Bench Divisional Court, that the law was as stated in Archbold (41st ed 1982) para 4-324, which read as follows: "If the witness has not referred to any book in his evidence for the purpose of refreshing his memory, and has merely admitted in cross-examination that he did not make a note, it has been held in Scotland that he cannot be compelled to produce the book: Hinshelwood v Auld (1926) SC (J) 4 (police officer's notebook), it is unlikely that this decision would be applied in England or Wales. If, for example, the witness admitted that he had been refreshing his memory from his notebook outside the court door, it would be odd indeed if he could not be required to produce the document after entering the witness box." The Court were not prepared to determine how much earlier than giving evidence the line had to be drawn, they would leave that to the tribunal of fact. It is submitted that it should at least include that day, eg; the officer read his notes before leaving the police station or whilst on the way by public transport.

In Senat v Senat [1965] 2 ALL E.R. 505, it was held that where a document is used to refresh a witness's memory, cross-examining counsel may inspect that document in order to check it without making it evidence. Moreover he may cross-examine upon it without making it evidence provided that his cross-examination does not go further than the parts which are used for refreshing the memory of the witness. If counsel sees fit to cross-examine a witness on parts of his notes not used by the witness to refresh his memory, those notes are entitled to be treated by the prosecution as an exhibit and be shown in full to the jury or magistrates. This applies just as much to documents used to refresh memory out of court, Owen v Edwards, supra.

Most of the cases considered were decided before the Police and Criminal Evidence Act 1984 and Code of Practice C which came into effect on 1 January 1986. The Code requires police officers, unless it is impracticable to allow suspects the opportunity to read the interview record and sign it as correct or to indicate the respects in which he considers it inaccurate. If a person cannot read of refuses to read or sign, the senior officer present shall read it over to him and ask him whether it is correct, para 11.10. That senior officer would then sign the record himself.

Para 11.5 (b) requires the record to be made on the forms provided for that purpose or in the officer's notebook. (The codes use the term pocket-book). The reality is that forms are always used in the absence of a tape recorded interview. Suspects are normally asked to sign each question and each answer. If notes are recorded in a notebook, if practicable, the same rule should apply, if the suspect is still at the police station he should be given an opportunity to read and sign the notebook. Obviously if it is the intention of officers to collaborate in the making of notes it may not be practicable. If this is the case it is submitted that it would be advisable to inform the defence at the earliest opportunity that collaboration has taken place.

Metropolitan police officers engaged on surveillance work are issued with logs which carry a unique number, similarly each page is also numbered. On completion, the log is signed by the officer making the notes and countersigned by his supervisor. It was alleged by Bernard Levin, The Times, 13 April 1992, that the Service had introduced a plastic plate to insert between the pages to undermine the ESDA test. The Metropolitan Police Commissioner Sir Peter Imbert, in a letter to The Times, 17 April 1992 denied this, and stated the reason for the sheet was to prevent anyone in one case from reading the surveillance notes from another which was completely unconnected. However the sheets were withdrawn. In future the problem will be overcome by issuing a new log book for every new case and the pages will remain in the log.

The Chairman of the Metropolitan Police Federation when interviewed by Police Review, 24 April 1992, stated a different reason had been given to him by the Deputy Commissioner Mr John Smith a few days before the Commissioner's decision to withdraw them. He said the sheets were inserted to provide stiffness to the floppy pads, making them easier to use by surveillance officers in cramped conditions. How far do you take the matter? I remember keeping a small 4" plastic measuring card in my notebook: (I still have it). I used it to measure the bald area on defective tyres, I wonder what sinister motive Mr Levin would make of that!

It is reported in Police Review, 19 June, and 14 August, 1992, that automatic time-recording machines have been approved for use in 98 Metropolitan Police custody suites to confirm exactly when arrest notes are taken by officers. Custody officers must endorse the notes to indicate they are satisfied that there were good grounds for the arrest. It seems that the Metropolitan Evidence Project Implementation Committee have recommended that officers no longer write up arrest reports together. Although they will be able to confer, they are encouraged to write individual accounts in as much detail as accident reports made by traffic officers. As from 10 August, the time recorders have stamped, dated, and timed the divisional identification under the last written word in notebooks, record books, and other evidential notes.

Rob Jerrard

• "Internet Law Book Reviews"