England and Wales Court of Appeal (Criminal Division) Decisions

Royal Courts of Justice

The Strand

London WC2A 2LL

Friday 8 August 1997

B e f o r e:

LORD JUSTICE SWINTON THOMAS

MR JUSTICE ROUGIER

and

MR JUSTICE BLOFELD

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R E G I N A

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KEITH GLENN MILLER

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Computer Aided Transcription by

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MISS CAROLINE GASSMAN appeared on behalf of THE APPELLANT

MISS MARY COLTON appeared on behalf of THE CROWN

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J U D G M E N T

(As Approved by the Court )

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LORD JUSTICE SWINTON THOMAS: Mr Justice Rougier will give the judgment of the court.

MR JUSTICE ROUGIER: On 7 February 1997, in the Crown Court at Snaresbrook, the appellant pleaded guilty to possessing a controlled drug of class B (cannabis) and to possessing a controlled drug of class A (cocaine). He was also convicted of possessing Ecstasy, a class A drug, with intent to supply it, for which he was sentenced to four years' imprisonment. He appeals against his conviction by leave granted by the full court.

The grounds of the appeal concern two alleged conversations (we use deliberately a neutral word) which were alleged to have passed between the appellant and certain police officers shortly after his arrest. They came about in this way. He was stopped by the police whilst driving a car in the east end of London and the cannabis and the cocaine were found. He was thereupon put into "quick handcuffs", which are designed to prevent movement of the hands, unlike the old-fashioned cuffs which have a linking chain in between. There was an issue as to whether his hands were level with each other behind his back or one was on top of the other. As he was being escorted up a ramp to the custody office in the police station, one of two officers who were following claimed to see the appellant drop a package. The package was found to contain four Ecstasy tablets. This was not, in fact, noticed by the officer who was escorting the appellant.

We then come to conversation A. The officer who saw the package picked it up, continued into the custody office and, on arrival, said to the appellant, "I have just seen you drop this. Things are looking a bit more serious now." According to her evidence the appellant replied, "Yeah." She then said, "Are these Ecstasy tablets?", to which the appellant is alleged to have replied, "Yes".

The appellant was in the custody office while another officer, PC Bucknall, was bagging up the exhibits. The police officer claimed to see the appellant with a green bag in his handcuffed hands as he sat on the bench which was, apart from the custody sergeant's desk, the only piece of furniture in the room. He originally stated that he saw the appellant force this bag through a small slot in the bunch upon which he was sitting. Neither the custody officer nor WPC Wood, who was part of the first conversation, had seen this.

Later, on looking at the bench, PC Bucknall realised that the slot simply was not big enough to accommodate the bag which he claimed to have found, and altered his account to say that it must have gone down through the side of the bench. Conversation B then occurred, according to the prosecution evidence. PC Bucknall retrieved the bag, continued sealing the exhibits and explained to the appellant (without caution) what he was doing. The appellant is said to have asked, "What will I get for this?" PC Bucknall replied, "What do you mean?" The appellant said, "At court for supplying drugs, what will I get?" PC Bucknall replied "That's not for me to say", and according to the police evidence the appellant said, "This is the first time I've done this."

Objection was taken to the inclusion of both those conversations on the ground that they constituted interviews and that there had been breaches of the Code of Practice in relation to those interviews in that: the appellant on neither occasion had been cautioned; no record had been made of the conversations; and, arising from that, the appellant had been given no opportunity to be shown what the record was and to comment or disagree with it if he wished.

The learned judge in ruling on the matter, first, declared that in his opinion there had been no breaches of the Code. He took the view that the officers were entitled to make inquiries before cautioning as to, for example, the provenance of any particular item, and that this was no more than such a performance.

However, it has been pointed out, correctly, that in so doing the learned judge was adverting to a code which by then was out of date. The correct definition of an interview was then, and is now, to be found at C.11.1.A of the Code:

"An interview is the questioning of a person regarding his involvement or suspected involvement in a criminal offence or offences which, by virtue of paragraph 10.1 of Code C, is required to be carried out under caution."

The learned judge in making his ruling recited the two conversations perfectly correctly and went on in this way:

"It is common ground that when the comment was made by the officer about the ecstasy tablets at the time when the defendant himself asked, 'What will I get for this?', he had not been cautioned, further cautioned in relation to other drugs."

He then recited the objection and the prosecution's view:

"Miss Colton submits that there has not in fact been a breach of the code because the officers are entitled to make enquiries before cautioning as to, for example, the provenance of any particular item and this was no more than that in this case. The matter is in any event governed by my discretion.

It seems to me that Miss Colton is right in her submissions and therefore there has not been any breach and there is no question of any need to exclude the matter for that reason, but, if I am wrong about that, I can in any event exercise my discretion in favour of admitting this evidence under the provisions of the Police and Criminal Evidence Act because this was a man who had already been cautioned not long before. He knew very well what the position was. He had had some previous experience of police stations and the law. I accept that it was not anything in relation to drugs, but the nature of the offences is irrelevant. If somebody has been to police stations on three occasions in the past and has been through the procedure and been cautioned, coupled with the fact that this man had been cautioned relatively shortly before the events which are complained of, means that I am quite certain that he knew what his rights were and he volunteered this information."

A little explanation is necessary. The learned judge's reference to the appellant knowing what the procedure was is a reference to three previous convictions of no great severity which he had sustained in the past. The first was when he must have been a juvenile in 1984; the second was in March 1991, for possession of an offensive weapon; and the third was in April 1994, for indecent exposure. The learned judge in our judgment misdirected himself in holding that there had been no breach of the Code. In our judgment the first conversation undoubtedly in the modern definition amounts to an interview. In R v Wayne Ward 98 Cr App R 337, it was decided that one question alone can be sufficient in appropriate circumstances to constitute an interview. The feature that gives it that quality is that the question should be one regarding a person's suspected involvement in a criminal offence. In our judgment the question "Are these Ecstasy tablets?" undoubtedly is covered by that definition. Therefore no caution had been given to the appellant before conversation A took place. True it is that, on arrest sometime before (it is not quite certain just how long, but within an hour) he had been cautioned. But this court has said on more than one occasion that one caution is not necessarily enough and that before other questions are asked of a suspect at a later stage a further caution is necessary. In the anxiety that anybody feels when being taken to a police station and being questioned by those in authority it is perfectly possible to forget the rights of which he was informed earlier.

It is -- and we say this without any criticism of Miss Colton who does not have her original brief -- somewhat doubtful whether or not a contemporaneous record of these matters was made. But certain it is that the appellant was given no opportunity to study that record and make any comment that he wished. That this is no mere formality has been underlined in several cases in this court. In R v Gerritt Weedersteyn (CA 1.3.94) the court, inter alia, said:

"The vice that arises from this disregard of the Code has been commented upon by this Court on many occasions. The purpose is to obtain good and reliable evidence of anything that has been said and, in fairness to the defendant, to enable him to comment upon it and/or correct it close to the time when the matter is fresh in his mind."

We do not consider that conversation B amounted to an interview within the terms of C.11.1.A. But on the other hand it certainly was an unsolicited comment and would be governed by C.11.13, which states:

"A written record shall also be made of any comments made by a suspected person, included unsolicited comments, which are outside the context of an interview but which might be relevant to the offence. Any such record must be timed and signed by the maker. Where practicable the person shall be given the opportunity to read that record and to sign it as correct or to indicate the respects in which he considers it inaccurate."

Again there is no dispute that there was a breach of that provision.

The defence of the appellant was that he had not dropped any Ecstasy tablets; he had never had them in his possession; and he denied these conversations.

We turn to the question of the learned judge's discretion. It seems to us that these were serious breaches of the Code and might well have had a material effect upon the fairness of the proceedings. Moreover, and perhaps more significantly, it is difficult if not impossible to resist the conclusion that, if the learned judge was applying his mind to the wrong Code, he was basing the exercise of his discretion upon an incorrect basis. There was, it is true, on the face of it strong eye-witness evidence. However, when analysed that evidence was not without its difficulties: first, the extreme unlikelihood of the appellant, handcuffed as he was, being able to do what he was alleged to have done -- indeed, he called expert evidence on that aspect; secondly, the change of evidence on the part of PC Bucknall once he realised that the bag could not have gone through the slot; and third, the total futility of what the appellant was alleged to have done -- something which was bound to have been observed and discovered. These factors in our judgment might well have caused the jury considerable puzzlement. It is easy to envisage that what persuaded them (by a majority of 10 to 2) to return a conviction were remarks which in our judgment were tantamount to damning admissions.

In those circumstances we think that this is one of the comparatively rare cases where the appellate court should say that the learned judge's discretion was wrongly exercised. In those circumstances we are of the opinion that this conviction is not safe and cannot stand.

We will, after the adjournment, hear counsel on the question of whether or not there should be a trial.

(Following submissions by counsel as to a retrial )

LORD JUSTICE SWINTON THOMAS: In the judgment given by Rougier J this morning he indicated that the conviction in respect of count 3 for possessing a controlled drug of class A with intent would be quashed. The Crown applies for a re-trial. The powers to order a retrial are governed by sections 7 and 8 of the Criminal Appeal Act 1968. Section 7(1) provides:

"Where the Court of Appeal allow an appeal against conviction and it appears to the court that interests of justice so require, they may order the appellant to be retried."

Accordingly the primary question that we are called upon to answer is whether it is in the interests of justice to order a retrial.

This is a case on which the jury convicted. Apart from the evidence which this court has ruled inadmissible, there was a body of evidence supporting the Crown's case. It was a serious charge in respect of which a sentence of four years' imprisonment was imposed by the trial judge.

R v Saunders 58 Cr App R 248 indicates that one of the questions that arises when deciding whether to order a retrial will be the length of time since the commission of the offence. That is undoubtedly a relevant factor, as has been submitted by Miss Gassman for the appellant. The alleged offence occurred on 22 October 1995. That is a substantial time ago. As against that, happily, the appeal has come on speedily.

Taking all the matters into account, and giving proper weight to the length of time that has elapsed, we have come to a very clear conclusion that the interests of justice in this case do require a retrial, and accordingly we so order.

We will allow the appeal, quash the conviction and direct that a fresh indictment be preferred under section 8(1) of the Act. A fresh indictment must be preferred and the defendant must be arraigned within a period of two months from today's date. We will extend legal aid to solicitors and counsel for the purposes of the retrial. Apart from any other matters which counsel may wish to raise, we will consider the question of bail.

MISS GASSMAN: My Lord, this appellant was on unconditional bail and the Crown have no objection to that continuing.

LORD JUSTICE SWINTON THOMAS: Miss Colton, so far as the indictment is concerned you will ensure, I trust, that the directions are complied with because, as you probably know, if they are not then the case dies and no further application can be made if the indictment is not preferred and the defendant not arraigned within the requisite period of two months. Is there anything you want to say about bail?

MISS COLTON: It is not opposed, my Lord.

LORD JUSTICE SWINTON THOMAS: Very well. The defendant will be admitted to bail on the same conditions as heretofore, which I understand are unconditional bail. You will explain to him about attending at his trial and keeping in communication with his solicitors and so on?

MISS GASSMAN: My Lord, yes.

LORD JUSTICE SWINTON THOMAS: There is no reason why the retrial should not take place at Snaresbrook is there, Miss Colton?

MISS COLTON: No, my Lord.

LORD JUSTICE SWINTON THOMAS: Very well. The retrial will be listed at Snaresbrook Crown Court.

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