CARC3262

IN HER MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND

_____

BETWEEN

R A RUSSELL

(Complainant) Respondent

and

PATRICK ANTHONY McADAMS

					    (Defendant) Appellant

_____

CARSWELL LCJ

	This is an appeal by way of case stated against the conviction of the appellant on a number of road traffic offences by a resident magistrate Mr CP McRandal, sitting in Strabane Magistrates’ Court on 20 January 2000.  The magistrate heard five summonses brought against the appellant by the respondent, a superintendent of the Royal Ulster Constabulary, arising out of an incident in Strabane on 6 March 1999.  The magistrate found the respondent guilty of each of the offences charged and imposed penalties accordingly.  The issue on the appeal was whether the magistrate was correct to admit in evidence the statements of two officers of the Garda Siochana containing admissions by the appellant, proof of which was essential to the prosecution case.
	On 6 March 1999 about 8.10 pm a car driven by Lindsey Monaghan was turning right from Barrack Street, Strabane into Meetinghouse Street, when it was struck by a blue van coming at high speed in the opposite direction, causing damage to the car and injuries to the occupants.  The van failed to stop.  The accident was reported to the police, who ascertained the registration number of that vehicle and traced the ownership to the appellant.  The RUC requested the local Garda Siochana on the evening of 6 March after the accident to keep an eye out for the van.  Garda Dorrian and Garda McConigley had seen the appellant driving the van in question that afternoon about 3 pm at St Johnston, Co Donegal, it then being in an undamaged condition.  On receipt of the request from the RUC they went to the appellant’s girlfriend’s house at Ballyduff, Lifford and saw the van parked with its front facing the wall, in such a position that its damaged front end could not be seen from the main road.  On inspection of the van Garda McConigley found that its bonnet, grille and headlights were damaged and broken.  The officers went to the door of the house, which was answered by the appellant.  Garda Dorrian informed him that it was believed that the van MXI 3208 was involved in a traffic accident in Strabane a short time before, in which a number of people were injured, and that the driver left without stopping.  The appellant admitted that he had been driving the van at the time of the accident and that he just panicked.  The officers advised him to contact the police in Strabane and left.
The appellant attended at Strabane RUC station on 9 March 1999, accompanied by his solicitor.  In the course of an interview he admitted that he was the owner of the vehicle registration number MXI 3208 and that the vehicle had been damaged.  He denied admitting to the Garda officers that he had been the driver at the time of the road traffic and gave an explanation that the vehicle had been stolen from Lifford by a person or persons unknown, had been involved in a road traffic accident and then returned to him, and stated that the vehicle had since been sold.   
	Complaints were brought against the appellant by way of five summonses, alleging dangerous driving, failing to stop following the accident, failing to keep the vehicle standing at the scene, failing to report, and using the vehicle without insurance.  A notice was served with the summonses, pursuant to the provisions of the Criminal Justice (Miscellaneous Provisions) Act (Northern Ireland) 1968, of the respondent’s intention to tender certain written statements at the hearing, including those of Garda Dorrian and Garda McConigley.  No notice was given by the appellant that he objected to the tendering of any of the statements referred to in the notice and at the commencement of the hearing the magistrate was informed by the appellant’s solicitor that the statements were accepted.
	The solicitor submitted that (i) the statements of the Garda officers should not be admitted in evidence, since no caution had been administered, as is required by paragraph 10.1 of Code C made under the provisions of the Police and Criminal Evidence (Northern Ireland) Order 1989 (the PACE Order); (ii) without these statements there was insufficient evidence that the appellant had been driving the van at the time of the accident, and therefore the summonses should be dismissed.  
	The magistrate held that the provisions of the PACE Order did not apply to the Garda officers, on the grounds which he has set out in the case stated:
“(a)	In order for the Order to apply in these circumstances it would be necessary that it had some form of extra territorial application which it clearly did not have.

(b)	At the material  time Garda McGonigley and Garda Dorrian were not charged with the duty of investigating crime although they may well have been acting in aid of their colleagues in the Royal Ulster Constabulary by obtaining and forwarding information likely to be of use to the later.

(c)	Even if the Police and Criminal Evidence Order (Northern Ireland) applied and Garda McGonigley and Garda Dorrian were charged with the duty of investigating crime at the material time the obligation to caution does not arise until such time as the investigator has formed the opinion that there is a possibility that the person being interviewed has committed an offence.  Until this point is reached there is no obligation to caution any interviewee.  Leaving aside the fact that Garda McGonigley and Garda Dorrian could not have charged the defendant/appellant with any offence (and assuming for the moment) that they could, it did not appear to me that the interview with the defendant/appellant had [not] gone beyond the stage of general questions to elicit fact.” 

He admitted the disputed statements and found the case proved on each of the summonses.
The question posed by the magistrate in the case stated is whether it was proper for him to admit in evidence the admissions purportedly made by the appellant which were contained in the witness statements of Garda McConigley and Garda Dorrian.
	Mr Brolly for the appellant did not attempt to argue that the provisions of the PACE Order applied directly to the Garda officers, recognising, we think correctly, that they could not have extra-territorial effect.  He submitted, however, that the magistrate had failed to take account of Articles 76 and 74(2)(b) of the PACE Order, which govern the admission of such purported admissions.  If he had done so, counsel argued, he would have been impelled to refuse to admit them, and this court should now rule them out and set aside the conviction.  Mr Valentine submitted on behalf of the respondent that a caution would not have been required under the PACE Codes, and that, even if it had been, the procedure was not unfair and the statements should not be ruled out under Article 76.  He also contended that Article 74(2)(b) did not govern the present case.
Article 74(2)(b) applies where a confession has been obtained in consequence of anything said or done which was likely, in the circumstances existing at the time, to render it unreliable.  We do not consider that this provision has any application in the present case.  There is no evidence that anything was said or done by the Garda officers which could be regarded as in any way affecting the reliability of what the appellant admitted to them.  The main argument in the appeal centres round the effect of Article 76(1), which provides:
“76.-(1)   In any criminal 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.”

It is not apparent from the terms of the case stated that the magistrate considered the relevance of Article 76, although Mr Valentine suggested that he did appreciate that he had a discretion.   In those circumstances it is open to this court to put itself in his place and decide how the discretion should have been exercised: Archbold, 2000 ed, para 15-446.
If the admissions had been made by the appellant to police officers in Northern Ireland, they would have been bound to comply with any relevant provision of the Codes of Practice made by the Secretary of State under Article 65 of the PACE Order.  If evidence is obtained through conduct which constitutes a breach of a material provision of one of the Codes, that does not automatically entail the consequence that it cannot be admitted: R v Weekes (1993) 97 Cr App R 222 at 227.   The conduct will, however, be relevant to the issue whether it should be rejected pursuant to Article 76, and where the breach of the Code has been significant and substantial, then, prima facie at least, the standards of fairness have not been met:  R v Walsh [1989] Crim LR 822 at 823.
  Paragraph 10.1 of Code C provides:
“10.1	When there are grounds to suspect a person of an offence, and he is to be questioned regarding his involvement, or suspected involvement in that offence and if his answers or his silence (i.e. failure or refusal to answer a question, or to answer satisfactorily) may be given in evidence to a court, he must be cautioned:

   (i)	before any questions are put to him about the offence; or

   (ii)	before any further questions are put to him if it is his answers to previous questions that provide the grounds for suspicion.

This applies whether or not a person is under arrest.”
 
Paragraph 10.3 is also material:

“10.3	A person need not be cautioned unless questions are put to him to obtain evidence that may be given in court.  It is not necessary for other purposes such as establishing identity, or ownership of, or responsibility for, any vehicle.”

Mr Valentine submitted that the magistrate was right to conclude that paragraph 10.1 did not apply because at the time when the appellant made the admission to the Garda officers matters had not reached the stage when they had grounds to suspect him of an offence.  We are unable to agree with this.  The officers were asked to look out for a vehicle which had been involved in a hit-and-run accident.  They knew the van and had seen the appellant driving it in St Johnston earlier that day.  They went to the house where they thought they might find the appellant and saw the van parked there.  It was damaged at the front and parked in such a manner that that damage could not be seen from the road.  The appellant was in the house.  In our view these facts lead very clearly to a suspicion that the appellant had been driving the van when the accident occurred, and we consider that the Garda officers must have entertained such a suspicion.  We have no doubt accordingly that if the admission had been made to RUC officers in Northern Ireland the provisions of paragraph 10.1 of Code C would have been applicable.
	Mr Valentine then submitted that even though no caution had been administered, the facts were such that a court dealing with the matter under the law applying in Northern Ireland would have been bound to admit the statements, on the ground that there was such a clear prima facie case against the appellant on the other evidence adduced that it was not unfair to do so.  He referred to Whelehan v Director of Public Prosecutions [1995] RTR 177, in which a constable found the defendant sitting in the driving seat of his stationary car at 1.20 am, with the keys in the ignition switch.  He questioned the defendant, who admitted that he had been drinking.  The constable then asked if the defendant had driven to that place, to which he replied that he had.  He did not caution the defendant before asking that question.  The justices admitted in evidence the defendant’s oral admission, and the Divisional Court upheld their decision.  The court took the view that the facts were such that the justices could have readily inferred, even without the defendant’s answer, that he had driven there.  Even if he should have been cautioned, no court properly directing itself would have excluded the admission under the equivalent of Article 76 of the PACE Order.  The present case is not in our opinion as strong on the facts.  There may be something of an inference that the appellant had been driving the van when the accident occurred, since he had been seen driving it earlier and it was later parked outside the house which he was visiting, but it seems to us to fall rather short of proof of his having been the driver at the material time.  We accordingly do not accept that the absence of a caution can be disregarded on this ground.
	It is relevant to consider, however, that under the law of the Republic of Ireland the Garda officers would not have been required to administer a caution.  Cautioning in that jurisdiction is subject to the Judges’ Rules 1912, the requirements of which differ materially from those contained in Code C made under PACE.  In particular, there is no requirement that a caution be administered if the suspect is not in custody and the officer has not yet decided to charge him, as appears from Rules 1 and 2:
“     1.   When a police officer is endeavouring to discover the author of a crime there is no objection to his putting questions in respect thereof to any person or persons, whether suspected or not, from whom he thinks that useful information may be obtained.

       2.   Whenever a police officer has made up his mind to charge a person with a crime, he should first caution such person before asking him any questions, or any further questions as the case may be.”

	Where evidence is obtained in another jurisdiction in a manner which conforms with the requirements of that jurisdiction, but not those of our jurisdiction, it may be admitted in a trial in Northern Ireland if the court considers that the critical factor of fairness has still been satisfied.  So in R v Quinn [1990] Crim LR 581, evidence was given of an identification made in Dublin in circumstances which did not conform with the requirements applying in England.  The Court of Appeal held that the function of the judge in exercising his discretion under the equivalent of Article 76 of the PACE Order was to protect the fairness of the proceedings.  Fairness meant that there should be –
“a just balance at all times in what is done, and that there should be an absence of dishonesty, and an absence of bullying behaviour …”

The judge had properly discharged this function in considering the possible disadvantages to the defence of admitting the evidence and it had properly been admitted.
	In R v Konscol [1993] Crim LR 950 the defendant was convicted of conspiracy to import drugs into the United Kingdom and of assisting or inducing the commission of a drug offence outside the United Kingdom.  He had been arrested in Belgium in a car which was found to contain a quantity of drugs, and brought before an examining magistrate.  An interview was conducted through an interpreter in accordance with Belgian law, in the course of which the defendant answered a number of questions put by a customs officer.  His answers were not direct admissions of guilt, but contained some statements which he later admitted were lies.  It was common case that the interview was conducted properly in accordance with Belgian law, but that there is no equivalent in that law to the PACE requirements of cautioning suspects to inform them of their right to remain silent.  The judge in the exercise of his discretion admitted the statements, and the Court of Appeal upheld his decision.  In the course of giving the judgment of the court Popplewell J said:
“   This court does not propose to lay down any guidelines as to when a court in this country should or should not admit a statement taken in a foreign country according to their rules which may not coincide with the procedure established under the Police and Criminal Evidence Act.  What is fair will depend on the circumstances of each case.”

The court held that the judge had exercised his discretion under the equivalent of Article 76 and declined to interfere with it.
	We have now to exercise our discretion under Article 76 and consider whether the admission made by the appellant to Garda Dorrian should be excluded.  We have come to the conclusion that it should not be excluded on this ground.  The admission was received in another jurisdiction by local police officers acting properly within the law of that jurisdiction.  They could not be expected to be familiar with, let alone implement, the  requirements of the PACE Order, which differed from those applying in the Republic.  Nor do we think that admitting the appellant’s oral statement had such an adverse effect on the fairness of the proceedings that it ought to have been excluded.  No doubt there may be circumstances where the court may take the view that notwithstanding that the requirements of another country have been duly observed, the admission of the evidence would not satisfy the standards of fairness which are applied in our jurisdiction.  We do not think that this is such a case.  The officers observed the version of the Judges’ Rules applicable in their jurisdiction, which was applicable in this jurisdiction until 1964.  No evidence was put before us that the appellant felt under any pressure or that he would have declined to answer if he had been cautioned.  Indeed, after he had consulted his solicitor he went to the police and spoke quite freely in interview, though he denied driving the car or making the admission attributed to him.  While we appreciate and give full weight to the importance which our law attaches to the administering of cautions, in all the circumstances of the case we do not consider that it was unfair to admit the statements.
	We therefore take the view that the decision of the resident magistrate was correct, although for somewhat different reasons from those which he adopted.  We shall answer the question posed in the affirmative and dismiss the appeal.

IN HER MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND

_____

BETWEEN

R A RUSSELL

(Complainant) Respondent

and

PATRICK ANTHONY McADAMS

					    (Defendant) Appellant

_____

JUDGMENT

OF

CARSWELL LCJ

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