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Cite as: [2000] EWCA Crim 13

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BLACKFORD, R v. [2000] EWCA Crim 13 (17th February, 2000)

Case No: 199903688X5

IN THE COURT OF APPEAL
(CRIMINAL DIVISION)
Royal Courts of Justice
Strand, London, WC2A 2LL
Thursday, 17 February 2000

B e f o r e :
LORD JUSTICE MANTELL
MR JUSTICE KLEVAN
and
HIS HONOUR JUDGE MARTIN STEPHENS QC
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	REGINA
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	WAYNE BLACKFORD

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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040, Fax No: 0171 831 8838
Official Shorthand Writers to the Court)
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Mr R Flach (instructed by Bark & Co. for the Appellant)
Mr R J Crabtree (instructed by CPS for the CROWN)

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Judgment
As Approved by the Court
Crown Copyright ©

LORD JUSTICE MANTELL:
On 30th April 1999 Wayne Blackford was convicted at Middlesex Guildhall Crown Court of handling stolen goods. He was sentenced to two years imprisonment. He now appeals against conviction with leave of the single judge.
The facts may be shortly stated. Between 10th and 13th July 1998 there was a burglary of commercial premises in the London area. A quantity of computer screens was stolen. On 3rd August, the same year, acting on information received two police officers approached the appellant who was sitting in the driver's seat of a rented van. One of the police officers, Madelaine Rider, asked the defendant what he was doing. He is alleged to have said that he had just delivered some frozen food to a nearby address. The policewoman asked for some documentary evidence. There was none. Again, according to the police officers, the appellant said the van was empty. A search revealed the stolen computer screens. Then, and only then, the appellant was cautioned and arrested. In the course of interview he denied having made the remarks attributed to him by the arresting officers, though he agreed he had mentioned foodstuffs. He said that he was driving the van at the behest of a casual acquaintance who had offered him £200 to deliver foodstuffs which had been loaded onto the van by a third party whilst the appellant had not been present. He was to say much the same at trial.
The single grievance leading to this appeal arises out of the trial judge's refusal to disallow the evidence of what was said between the appellant and the police officers prior to arrest. It had been contended that the replies attributed to the appellant on first being approached should not have been admitted. The police officers were not permitted to ask any questions about the offence without first having administered the usual caution.
The matter was investigated. Indeed there was a "trial within a trial". The Recorder heard evidence from the police officers. In giving his ruling he said:
"In my judgment, at the time the questions were asked of Mr Blackford and his replies given, neither of these officers, in my judgment, had grounds to suspect an offence of the defendant. Their information, which may or may not have been accurate, was that the lorry may have contained stolen property but that is discrete to the lorry rather than to the defendant. One hesitates for a moment to say that if the police cautioned everybody about which such limited information had been given to them, then plainly the situation would be unacceptable and unnecessary."
He went on to say that the Codes of Practice C (10) (1) had been complied with. Accordingly he allowed the evidence which, if accepted by the jury, was extremely damaging to the appellant's case.
In directing the jury the trial judge enlarged upon what must have been his reasons for admitting the evidence. At p.9 of the transcript he said:
"Lets deal with the issue of the information. Quite properly, many of these enquiries are started by information and I suspect that in the nature of things, members of the jury, you would agree, that some information is good; some information is inaccurate; and some information is probably given maliciously. What we do know is that they were told to be on the look out for the van; that it would have stolen property on board. But it would be a funny state of affairs, and perhaps a highly undesirable one, if acting solely on information, information given to them, they proceeded to arrest the defendant straight away. I would suggest to you that the duty of the officers, when they saw the van, is to conduct their own enquiries, their own investigations, to see whether this was, in fact, the van that was subject to their information and whether the information they had been given was true.
It is only when the police have reasonable cause to suspect that an offence may have been committed that a suspected offender should be cautioned. You may feel, and I remind you that it is entirely a matter for you, that the preliminary questions that the officer asked were purely to ascertain the provenance of the van, the load it contained and the connection that the defendant had with it. It is a matter for you whether you think that the defendant should have been cautioned earlier, of course it is, and whether, as a result, the replies are unreliable and the bad (sic) faith of the officers is impugned. But I would suggest that you might like to consider that it would be an unsatisfactory state of affairs for the police to go in, mob handed, as it were, and arrest a person without verifying in any way the truth of what they had been told."
We do not have a transcript of the evidence on the voir dire. In his admirably concise submissions Mr Flach asserts that part of the information in the possession of the arresting officers was the registration number of the hired van. As is apparent from the citation from the summing up, that was not the impression formed by the trial judge. However, for present purposes we shall assume that Mr Flach is right and the judge was wrong. On that basis Mr Flach contends that the police had information that this very van contained stolen goods and that from what they observed on approaching the van, the appellant was clearly the driver. So it is submitted that the police officers had grounds for suspecting that the appellant had committed an offence and should have cautioned him before asking any questions about the van or its contents. He points out the importance of the answers given by the appellant before caution and the effect that they might have had upon his defence. He further submits that the failure to caution amounted to a significant and substantial breach of the code rendering the questions and answers inadmissible. He submits that the wrongful admission of those questions and answers renders the conviction unsafe.
The Codes of Practice are issued pursuant to section 66 of the Police and Criminal Evidence Act 1984. By section 67 (11) the provisions of the Codes are admissible in all criminal proceedings and are to be taken into account in determining any question as to which they appear to be relevant. It is well known that a breach of the Codes is frequently considered to be relevant to the exercise of discretion under section 78 (1) of the principal Act. Paragraph 10 of code C deals with when a caution must be given. Paragraph 10.1 reads as follows:
"A person whom there are grounds to suspect of an offence must be cautioned before any questions about (or further questions if it is his answers to previous questions which provide the grounds for suspicion) are put to him regarding his involvement or suspected involvement in that offence 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 in a prosecution. He therefore need not be cautioned if questions are put for other purposes, for example, solely to establish his identity or his ownership of any vehicle or to obtain information in accordance with any relevant statutory requirement (see paragraph 10.5(c)) or in furtherance of the proper and effective conduct of a search, (for example to determine the need to search in the exercise of powers of stop and search or to seek co-operation while carrying out a search) or to seek verification of a written record in accordance with paragraph 11.13."
What amounts to "grounds to suspect" has troubled this Court on a number of previous occasions. It has been described as a "singularly imprecise" concept. (See R -v- James 8th March 1996 per Simon Brown LJ at TR. p.18). It may range from the country house murder as recorded in fiction where all twelve occupants have had opportunity and motive to the case where the suspect is caught knife in hand standing over the prostrate body of his victim. So it is not surprising that some attempt has been made to give it shape. In R -v- Shah (1994) CLR 125 Jowitt J giving the judgment of the court stated at p.4E:
"First, it is to be seen that paragraph 10.1 sets out an objective test. There must be grounds of suspicion. Secondly it is not enough that the questioner is suspicious. He must have grounds for that suspicion. Grounds, obviously may fall well short of evidence which would support a prima facie case of guilt. Nonetheless, they must exist. A mere hunch or a sixth sense that something is not as it should be is not, in the view of this Court such as to provide the grounds for bringing the case within paragraph 10.1 of Code C. Moreover the grounds have to be such as to lead to suspicion, not simply that an offence has been committed, but committed by the person who is being questioned. It seems to this Court that, in any event, it was perfectly proper for Mr Campbell to ask the questions he did, and to which objection was taken, about the ownership of the briefcase. In our judgment, at that time when he asked those questions, Mr Campbell had no grounds for suspicion. Mr Campbell had no grounds to suspect that an offence had been committed by the appellant. Accordingly, there was no need for a caution and we agree with the learned judge's ruling that the evidence should be admitted."
Following upon the pronouncement that the test is an objective one the Court in James concluded that the "grounds to suspect" must be "reasonable grounds" thus as one commentator has stated (Professor Birch 1996 CLR 651) equating "the protective device of the caution" with "the intrusive power of arrest" which is conferred by section 24 of the principal Act and speaks of "reasonable grounds for suspecting". James is binding upon this court. And, though he might not have known of it, it was also binding upon the trial judge. So it was legitimate for him to put the rhetorical question to the jury which he presumably put to himself. We paraphrase; without more would the grounds of suspicion in this case have justified the police officers in arresting the appellant and if not how can it be said that they were such as to bring C10.1 into play?
It cannot be said, therefore, that the trial judge misdirected himself as to the proper approach. He reminded himself of the provisions of C10.1 and in particular of the need for the grounds of suspicion to have related to the appellant. He heard evidence. He reached certain findings of fact. Should this Court interfere? Although in James the matter was treated as one of discretion under section 78 of the 1984 Act whereas we are considering a prior determination of fact, it seems to us that the same principles apply. This court should be slow to interfere with the findings of the tribunal of fact reached after hearing evidence and on consideration of the relevant principles of law. It should only do so if the conclusions reached are unreasonable. As much is implicit in the judgment of this court in R -v- Nelson & Rose (1998) 2 CAR 399 where the court felt able to make its own finding in a case where the trial judge had failed to reach one of his own.
In this case were the judge's findings unreasonable? We think not. Although the questions put by the police officers did not fall within the range of examples set out in C10.1 there was nothing to indicate the appellant's involvement in an offence save for "information received" which as the judge remarked may itself have been suspect. For all we know it was given anonymously. In those circumstances and in our view the judge was entitled to hold that reasonable grounds for suspicion did not arise before the discovery of the stolen screens. Accordingly the evidence was properly admitted and the appeal fails.
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The Court was asked to certify the following question for the House of Lords:

"Is the effect of the term 'Grounds of Suspect' in Paragraph 10.1 of the Codes of Practice in the Police and Criminal Evidence Act 1984, synonymous with the term 'Reasonable Grounds for Suspecting' in s.24 of the principal Act?"

LORD JUSTICE MANTELL: We have had an opportunity of considering it, Mr Flach, and we refuse it.

MR FLACH: As your Lordship pleases.