INTERVIEW? Police question to publican amounted to interview
Batley v Director of Public Prosecutions
(1998) The Times, March 5 QBD
THE FINDINGS
The justices had found that no interview had taken place, within the meaning of Code C, prior to the administering of a caution to Batley it had been impracticable for Batley to have read or signed the notebook and that there had been no breach of the codes.
Batley was questioned on the March 17, 1997 and then cautioned but not arrested. Afterwards, Police Sergeant Scrivens wrote a note of the conversation which had taken place while he sat outside the public house in the patrol car with Police Constable Mitchell.
Batley was not allowed an opportunity to check the accuracy of the police sergeant's note or to endorse it as a correct record of the conversation which had taken place between the sergeant and Batley as the police thought the atmosphere inside the public house to be too volatile and threatening to re-enter .
THE FACTS
Having entered the public house the sight the officers met was such that any reasonable police officer would have suspected that an offence was being committed and, in those circumstances, that Batley was one of those persons committing it.
When Batley was asked what the arrangements were, that was an intimation for him to state whether he had a defence to section 59 of the 1964 Act. Batley might answer the question in a number of ways. The fundamental thing was that he was being asked to incriminate himself if he had committed the offence.
In the circumstances that question ought not to be asked without a caution being administered. Much potential probative material had arisen out of the conversation which preceded the caution. The conversation amounted to an interview within the meaning of paragraph 11.1.A of Code C.
The justices found that it was not practicable for Batley to be afforded the facility to endorse or dispute the accuracy of the police record. Batley was not provided with that opportunity until his trial.
The justices were wrong. The provisions of Code C did not confine themselves to an immediacy of opportunity of checking to confirm or deny the accuracy of a record.
The requirement of the applicability was not constrained to a time factor. The police officer could show Batley the record the following day or at any stage after the event had taken place. The fact that was not done was prejudicial to Batley at trial.
The mutuality of interest in the codes was to protect honest police officers and honest suspects. The codes were there to decrease the possibility of dishonesty on the part of one side or another.
When steps set out by the code were not observed, there was a real risk that the fairness of the proceedings against the defendant would be adversely affected.
THE DECISION
When police suspected after hours drinking and asked the publican to explain what the arrangements were in the public house, that question amounted to an interview under Code C of the Police and Criminal Evidence Act 1984 (s.66) Codes of Practice and it was not a preliminary question.
Therefore the publican should have been cautioned prior to questioning and offered the chance to verify the officer's notebook at the earliest opportunity.
The Queen's Bench Divisional Court so held when allowing an appeal by way of case stated of the conviction by Justices of Batley, with supplying intoxicating liquor contrary to section 59(1)(a) and (2) of the Licensing Act 1964.
Comment
What amounts to an interview?
A broad approach has not always been adopted by the Court of Appeal which has found that the following conversations DO NOT amount to interviews:
(a) a police officer asking questions at or near the scene of a suspected crime to elicit an explanation from a suspect. Maguire (1990)
(b) a suspect at a police station volunteering information and the police doing no more than making notes for their record. Menhard (1994)
(c) a conversation in a car between a defendant and escorting officers where the defendant volunteered information and the officers only asked one or two questions. Younis & Ahmed (1991)
There was an article by DC Tony Oxford in Police Review 4th Dec. 1987, "Interviewing in the car" which could be read as an insight, but caution will be needed with the development of more modern cases.
It is suggested that in the Menhard case the exception was taken as far as possible. This is illustrated by Hunt [1992] Crim.L.R. 582The defendant in Hunt was found to be in possession of a flick-knife. He ran off and was arrested. He was put in a police car and, when there, was asked why he had the knife. The Court of Appeal held that the question and subsequent answer were an interview.
"It has been doubted whether a simple request for information should properly be construed as an interview. However, the Code may apply outside the police station when a suspect, not in detention, is being questioned about an offence. For instance, it is a question of fact whether questioning in order to establish whether there are grounds for making an arrest amounts to an interview: there is a distinction between asking questions to enable an officer to decide whether to effect an arrest, and asking questions about an offence after arrest. In such a case the court must take into account all the circumstances including the place of the questioning, and its nature, length and sequence: the court must then determine whether what was said amounted to an interview or not. (One question and answer may suffice to amount to an interview: "the nature of the question ... rather than the length of questioning will primarily determine whether it is an interview ... On the other hand, questions by a customs officer (not in the course of a search or structured interview) designed to elicit an incriminating response have been held to amount to an interview.
The Court of Appeal has said that an undercover police officer must not use his pose to ask questions about an offence and thus circumvent the Code." Criminal Evidence, Richard May, 3rd Edition Sweet & Maxwell; para 10-52
R v Christou [1992] 3 W.L.R. 228, resulted from a police operation said to be unique in this country albeit similar operations have been mounted in the United States. Police were anxious to combat a high rate of burglary and robbery in parts of north London. 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. Gary and Aggi also required vendors to sign receipts recording the money paid and the specific goods. The fingerprints on the receipts were not used in evidence.
The police recovered for the owners a good deal of stolen property and charged 30 men with various offences. Christou (7 charges) and Wright (12 charges), kept returning. They pleaded not guilty.
After the jury were sworn in, the defence, in a voire dire, challenged all the evidence resulting from the operation. The trial Judge rejected the submissions and the appellants changed their pleas to guilty. The points argued on appeal were:
1 that the whole concept was a trick designed to deprive visitors to the shop of their protection against self incrimination and accordingly the evidence ought to be excluded pursuant to the common law principle of R v Sang [1980] AC 402, or s.78 of the Pace Act 1984;
2 that the conversation in the shop was within the Codes of Practice, (cautioning).
The trial Judge had decided that, since the evidence from the shop had admittedly been obtained from the appellants by a trick, he had a discretion to exclude the evidence if its admission would prejudice a fair trial. He held that, while the discretion under s.78 might be wider than the common law discretion identified in Sang, the criteria of unfairness were the same whether he was exercising his discretion at common law or under the statute.
The Judge concluded that to admit the challenged evidence would not adversely effect the fairness of the trial since the trick was not applied to the appellants; they voluntarily applied the trick to themselves. The Court of Appeal agreed. What was unfair could not sensibly be subject to different standards depending on the source of the discretion to exclude it.
There were few cases in which the discretion had been exercised; R v Payne [1963] 1 WLR 637, stood alone (a drink driving case where a doctor's evidence of examination was excluded because the driver had been informed that the doctor would only examine to see if he was suffering from illness or disability).
In dismissing the appeal, the Court of Appeal said the operation had to be considered as a whole, it was not unfair. The Judge's exercise of his discretion could only be impugned if it was unreasonable. As to Code C: it was accepted that Gary and Aggi had grounds to suspect each of the appellants of an offence; the issue was whether the Code applied in the situation. In their Lordships' view, although the Code extended beyond those in detention what was clear was that it was intended to protect suspects who were vulnerable to abuse or pressure from police officers or who might believe themselves to be. The appellants were not being questioned by police officers as such: conversation was on equal terms and the Code was simply not intended to apply in such a context.
Lastly their Lordships were not prepared to accept the submission that the whole exercise was contrary to public policy and the officers should have arrested the offenders as soon as they had sufficient evidence. That was clearly a matter for police policy and operational decisions.
"Interviews" Some more cases.
In R v Matthews Voss and Dennison, (1989) 91 Cr. App. R 43; (1989) The Times, November 9, the court defined "interview" as any discussion between a suspect and a prisoner about an alleged crime, whether instigated by the suspect or a police officer. This is the broad approach discussed earlier, but does it accord with the cases?
In Matthews Sarah Matthews ("M") had been remanded in custody at a police station, and in evidence a woman detective sergeant said that she had two conversations with "M", in the second of which she made a confession. After the conversation "M" was taken back to her cell and the sergeant made a note of it in her pocket-book, but did not show the note to "M" in order to give her the opportunity of admitting its accuracy, as required by paragraph 12.12 of Code C of the Codes of Practice, (now para 11.10) because she thought that was a completely wasted operation. The Court held this was a clear breach of paragraph 12.12 (11.10).
In R v Weekes (1992) The Times, 15 May, it was held that where an officer questioned a suspect in order to establish whether there were grounds for making an arrest, it was a question of fact, bearing in mind the nature of the questioning, its length, sequences and the place where such enquiries were conducted, whether it became an interview.
Farquharson LJ; said it was very difficult to draw a line. When the police officer was in the street seeking information and trying to establish whether there were grounds for arresting a suspect, it was absurd to suppose that he had to wait until a parent was present before questioning a juvenile further. But if, in fact enquiries continued and the exchange became an interview, the initial questions could not be be severed but had to be looked at as a whole. This is what happened in Weekes, and accordingly the police officer had been acting unlawfully; since Weekes was a juvenile an adult should have been present during questioning.
Social Visits!
In R v Williams (1992) The Times, 6 February "W" was on bail, he was arrested at his home on suspicion of robbery. He was taken to police station and interviewed by two officers in the presence of a representative of a firm of solicitors. He made no admissions and was charged with aggravated burglary.
The following morning he appeared before Magistrates and was remanded to police cells. That afternoon, after a conversation with a detective chief inspector, he received, what was called, a "social visit", from the two officers who had brought him to the station. This "visit" lasted one hour.
After the visit "W" signed the custody record saying he was willing to be interviewed without a solicitor. During the interview he agreed that he was volunteering information freely and had not been made any promises. He admitted he was involved in the robbery.
At the trial the judge was invited to rule under sections 76 or 78 of PACE Act 1984, that the record of that interview should not be admitted. "W"'s evidence was that the officers had persuaded him to confess by offering him an inducement.
The judge accepted the police evidence, and, moreover, concluded that there had been no breach of the PACE Codes of Practice: he admitted the interview evidence.
Additional Cases
R v Cox (1992) The Times, Dec. 2
R v Cunningham (1989) The Times, March 24
R v Dunn (1990) The Times, March 3
R v Dunford (1990) The Times, March 16
R v Emmerson (1990) The Times, Dec. 5
R v Keenan (1989) The Times, May 1
R v Parchment [1989] Crim.L.R. (April Issue)
R v Kingsley Brown [1989] Crim.L.R. 500.
Rob Jerrard