Undercover operation evidence admissible
R v Christou and Wright
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.