England and Wales Court of Appeal (Criminal Division) Decisions

1. The Applicant is due to be tried at the Crown Court at Maidstone together with Shamise David Hooper, John Charles Surman, and Michael Ronald James Severn, on a charge that they conspired together and with Yusuf Gordon between the 22nd September 2000 and the 8th November 2000 to supply cocaine. The three other Defendants, Hooper. Surman and Severn face individual counts of supplying cocaine to undercover police officers and the Applicant's brother, Ian Dixon, has already pleaded guilty to a number of counts of supplying cocaine and has been dealt with separately.

2. On the 9th March 2001 Her Honour Judge Hamilton QC refused an application made by the Applicant to exclude a section 9 witness statement which he had made in another matter, ruling that it was admissible in the forthcoming conspiracy trial. The Judge heard evidence on a voir dire from PC King, DC Kelsey and DC Forster. She refused leave to appeal and the Applicant renewed his application for leave to appeal to this Court after refusal by the single judge.

3. At the conclusion of the hearing before us we refused the application for leave to appeal, indicating that the reasons for this decision would be delivered in writing on the 3rd October 2001.
The Facts.

4. An investigation into crack cocaine dealing in the Medway towns was commenced by the police on about the 22nd September 2000 under the name Operation Magician. The Applicant and Hooper were amongst those who were under investigation. Two properties where crack cocaine dealing was suspected to take place were kept under surveillance. Test purchases by undercover officers were made from various suspects and the surveillance continued to build up knowledge on the network of supply. The Applicant himself had not supplied any cocaine to the undercover officers but was observed at the premises on different occasions over many days, often in association with those who had supplied drugs to the undercover officers. The contacts for the purchases of drugs by the undercover officers were initially made to mobile telephone numbers. A West Indian male identifying himself as "Dave" answered the phone on a number of occasions and directed the officer to where the drugs purchase could be and was made.

5. The observations of the Applicant, the video surveillance and the nature, timing and content of telephone calls in relation to the drug deals and the Applicant's presence at the properties led the police to believe that they had sufficient evidence of his involvement in a conspiracy to supply crack cocaine. It was in fact intended that the operation would continue and expected that the Applicant would be caught actually selling cocaine but the Applicant's brother, who had been remanded in custody upon another matter, was about to be released and as it was feared that he might flee the country all the arrests had to be hurriedly brought forward for the 7th of November, thus bringing the operation to an earlier conclusion than planned.

6. The events which gave rise to the taking of the section 9 statement from the Applicant occurred about a week before the arrests, on the 30th of October 2000. The Applicant had been at Hooper's house in Stroud when four males arrived at the house and started shouting abuse. The Applicant and Hooper went outside where the Applicant says that he was punched in the face. He responded by punching his attacker in the chest and then turned to go. As he did so he felt a sudden heavy blow to the right side of his forehead from what later appeared to have been a golf club. A gaping wound to the Applicant's forehead was caused which required seven stitches. The matter was reported to the police almost immediately after it had happened and the Applicant made a statement at 3.30 in the morning of the 31st October 2000 in which he indicated that he was prepared to support a police prosecution. In describing the assault and the circumstances surrounding it in his statement the Applicant said that after he had been struck Hooper had chased after the four men and in particular Deke Partridge, who it was thought had hit the Applicant as he had been seen with a stick in his hand both before and after the incident. The Applicant described Partridge dropping to the ground as Hooper ran after him.

7. Partridge sustained grazing and small cuts to the shoulder and Hooper was interviewed by the police about an assault on Partridge but denied that he had been responsible for any such assault and said that it had in fact been Dixon who, after he had been struck by the golf club had attacked the man who had struck and injured him with a knife. During his interview Hooper described Dixon as a cocaine dealer, referred to him as "Black Dixon" and said that he knew him as Dave.

8. As a result of the interview with Hooper, PC King, who was conducting the investigation into the assault on the Applicant, decided that in addition to obtaining a further victim statement from the Applicant he needed to clarify the issue of identification raised in Hooper's interview.

9. Detective Constable Kelsey, the disclosure officer in Operation Magician, learned of Hooper's arrest in connection with an assault and, as he was one of the subjects of the drugs investigation rang up PC King to find out what had happened. He was told during the conversation that PC King intended to obtain a further statement from Rohan Dixon in order to clarify whether he was the Dave referred to in Hooper's interview. DC Kelsey said that he would take the statement for PC King and did so on the 1st November 2000. He did not tell PC King that Hooper and Dixon were suspected of conspiring to supply crack cocaine, nor anything about the drugs investigation he was engaged upon. Nor did PC King know that either Dixon or Hooper were under investigation by the Tactical CID team on suspicion of supplying crack cocaine. DC Kelsey said when giving evidence at the voir dire that he wished to take that statement himself for two reasons, firstly as he wanted to see the Applicant face to face and secondly because he was concerned that, since Hooper had mentioned drugs in his interview, PC King may inadvertently tip Dixon off that his involvement with drugs had become known to the police.

10. It was important for DC Kelsey to be able to identify Rohan Dixon from having seen him in the flesh as opposed to only on video or photograph. He had earlier failed to get a clear view of Dixon because he had been wearing either hats or hoods during the wet autumn weather. DC Forster, the officer in charge of Operation Magician, supported DC Kelsey's reasons for taking the additional statement on behalf of PC King and told the Judge during the voir dire that it was important for one of his officers to be able to identify Rohan Dixon and that it was imperative that Dixon was not inadvertently alerted to the covert operation.

11. When DC Kelsey took the additional statement on behalf of PC King on the 1st November 2000 there were in his view ample links between drugs and Rohan Dixon on video and in telephone calls even though there was no evidence of him personally supplying drugs. He said that he knew Rohan Dixon was known as Dave before Hooper had made his statement but there was nothing written down to say so. He said that at the time he took the statement it was useful to know that the Applicant was Dave but it had been the intention of Operation Magician to continue to make test purchases and get direct evidence of Dixon supplying drugs.

12. The Applicant was not cautioned before giving his statement to DC Kelsey. DC Kelsey said that he was not investigating an offence committed by Dixon nor was he trying to elicit something to incriminate him, but to clarify the identity of the man Hooper had referred to in his interview. The further statement made by the Applicant stated:-
"With regard to my previous statement describing the assault that happened to me I have been told that Shamise Hooper has referred to me as "Dave". Dave is obviously not my real name, it is my nickname, nobody calls me Rohan they all call me Dave."
The statement then went onto describe the wound that he had received in the assault and the fact that he was happy to have it photographed after the dressing had been removed.

13. DC Kelsey and DC Forster agreed that the statement was of use to them and DC Forster described it as beneficial and relevant and more so because of the unforeseen circumstance which had brought Operation Magician to an end earlier than expected and prevented test purchases by undercover officers to get direct evidence of Dixon supplying drugs.
The Judge's Decision.

14. The Applicant contended before HHJ Hamilton QC that the witness statement was a confession and inadmissible in accordance with section 76(2)(b) of the Police and Criminal Evidence Act 1984. It was obtained in breach of PACE because Dixon was not cautioned when he should have been as the statement taken by DC Kelsey was an interview under paragraph 11.1.A of the Code and hence a caution should have been administered in accordance with paragraph 10.1 of the Code. In addition no tape recording was made of the interview. Those breaches meant that the statement should be excluded under section 76 and also under section 78 of PACE and would also render the making of the statement in breach of Article 6 of the European Convention of Human Rights.

15. It was also submitted that the section 9 statement obtained in the assault investigation could not be used in any other proceeding. The importance of the statement was demonstrated by the fact that in its absence there was insufficient evidence to proceed against Rohan Dixon.

16. The Judge ruled that no interview under Code 11.1.A of PACE had taken place as DC Kelsey did not ask the Applicant any question regarding his involvement or suspected involvement in a criminal offence. He was not asked about his involvement in drugs or about any other offence but simply asked to establish whether he was the Dave referred to in the context of the investigation into the assault committed against him. DC Kelsey's knowledge or suspicion of his involvement in drugs did not affect the nature or purpose of that voluntary statement. As there was no questioning of Dixon regarding his involvement or suspected involvement in a criminal offence there was no need for a caution or a tape recording.

17. The Judge did not consider that the providing of a nickname in these circumstances was a confession but nevertheless expressly considered the matter on the basis that it was a confession and concluded that she was satisfied beyond reasonable doubt that no confession was or may have been obtained by reason of oppression or in consequence of anything said or done which would render it unreliable.

18. It was therefore the Judge's conclusion that there was no breach of section 76 of PACE. As there had been no breach of any of the provisions of PACE and the Applicant was not asked to do anything other than clarify whether he was known as "Dave" by Hooper the Judge did not consider that there was a breach of Article 6. Whilst the Judge did not expressly deal with section 78 we accept the Crown's submission that it is clear from the whole of her judgment that she did consider her section 78 discretion and the submissions made upon that by the Crown in their skeleton argument for the preparatory hearing.

19. It was also found that a voluntary section 9 statement made by an individual could be used in other proceedings against the maker. The Crown had submitted, and submitted before us that any statement which amounts to an admission is admissible as evidence of its truth on general common law principles. The Judge indicated during the course of argument that whether or not there was sufficient evidence to proceed against Rohan Dixon in the absence of his voluntary statement was a matter for the Prosecution.
The Grounds of Appeal

20. Mr Sekar on behalf of the Applicant submitted before us that the "Dave" statement of the 1st November 2000 was a confession within the meaning of section 82 of PACE and that the process of obtaining the "Dave" statement by DC Kelsey constituted an interview under Code 10.1 and 11.1.A.

21. The fact that DC Kelsey saw the Applicant for the purposes of taking the further voluntary statement in the context of the investigations into the assault on the Applicant himself and its surrounding circumstances was irrelevant as he was also asking Rohan Dixon to incriminate himself in respect of the drugs investigation by admitting that he was "Dave". There was therefore a duty to caution under the Code and the failure to do so was the breach of a fundamental safeguard which rendered the confession unreliable.

22. The case of Batley -v- DPP PLR March 5th 1998 established that once a man was being asked to incriminate himself a caution ought to be administered. R -v- Sparks [1991] Crim LR 128 showed that as soon as the officer asking questions knew that something relevant about an offence may come out he could not ask questions about that offence without administering a caution. R -v- Hunt [1992] Crim LR 582 established that even if the officer was not trying to get the evidence but for example asked the questions out of curiosity, there was still an obligation to give a caution as a broad purposive approach was necessary to the interpretation of an "interview". (See also R -v- Absolam [1989] 88 CR App R 332 ).

23. On the basis of these authorities Mr Sekar submitted that as the purpose was to obtain something beneficial and relevant for the drugs investigation a caution had to be administered even though the questions were asked within the context of the assault enquiry where the Applicant was a victim. DC Kelsey was going to ask if the Applicant was "Dave" on behalf of PC King for the assault enquiry, but was doing so in the knowledge that he would gain benefit from the answer to that question. Another of his purposes was to see the Defendant and hence this purpose was also connected with the drugs investigation. These matters rendered it necessary for a caution to be given before any questions could be asked.

24. At one stage of his submissions Mr Sekar sought to challenge the Judge's finding that DC Kelsey did not ask the Applicant any question regarding his involvement or suspected involvement in a criminal offence, thus suggesting that his real case was that the whole police exercise was a subterfuge. He did maintain that the Judge's finding in relation to DC Kelsey's evidence was in error but did not contend that this was a case of obtaining evidence by a trick. He maintained his submission that the section 9 statement was hearsay and inadmissible.

25. Mr Sekar conceded during his submissions that there had to be a breach of the Code before he could succeed.

26. The Crown sought to uphold the Judge's finding on the basis that no interview had taken place under Code 11.1.A and hence a caution under Code 10.1 was unnecessary. DC Kelsey was entitled to take the benefit of the answer given in the assault enquiry for the purposes of the drugs investigation. There was no essential difference between the statement being taken by him or by PC King. If the whole exercise had been a device and PC King, for example had been asking questions for the benefit of the drugs enquiry then a caution would have to been given. But that was not the case here as PC King wished to ask a question in the assault enquiry about a matter raised by Hooper and DC Kelsey merely took over the asking of that question. It was necessary to look at what the questions were about rather than what the purpose of asking the questions was or what benefit might be obtained from them. No question was asked about whether "Dave" was the same person as had made phone calls in the drugs matter. He only asked whether the Applicant was the person who Hooper had described as "Dave" when he had been interviewed in relation to the assault enquiry. The police were entitled to gather and use such information as long as no questions had been asked about the drugs investigation.
Decision.

27. We are satisfied that the Judge's conclusion was correct and that the section 9 statement was admissible in the conspiracy trial.

28. On the facts found by the Judge the conversation between DC Kelsey and the Applicant which led to the making of the section 9 statement on the 1st November 2000 was not an interview under C:11.1.A This defines an interview as:-
"...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."

29. The Applicant was not being questioned by DC Kelsey regarding his involvement or suspected involvement in the drugs investigation. On the contrary he was being questioned in respect of the events surrounding an assault on him which had resulted in the infliction of serious injuries to his head.

30. The fact that DC Kelsey might obtain benefit from the answer given as to whether he was the same person as "Dave" as described by Hooper in his interview, did not alter the fact that the question being asked was not "regarding his involvement" in the criminal offence of conspiring to supply cocaine.

31. The Judge accepted the evidence of DC Kelsey and the other officers who gave evidence. In particular the Judge accepted that DC Kelsey's purpose in taking over the questioning from PC King was firstly to see Dixon so that he would be able to identify him again and secondly to avoid any questions being asked about the drugs matter by mistake. On these findings, the purpose of DC Kelsey being there to deal with the matter was not to ask questions about the drugs matter but to ensure that no such questions were asked so that the Applicant would not have his suspicions aroused as to the police investigation into him and others concerned with the alleged conspiracy.

32. Code 10.1 specifies when a caution must be given. It states:-
"A person whom there are grounds to suspect of an offence must be cautioned before any questions about it ... are put to him regarding his involvement or suspected involvement in that offence.. He therefore need not be cautioned if questions are put for other purposes, for example solely to establish his identity.."

33. The questions must therefore be about the suspected offence, regarding the suspect's involvement or suspected involvement in that offence. Here, no such questions were asked on the Judge's findings, the questions were asked solely for the purposes of the assault enquiry. Had they been asked by PC King in precisely the same form as DC Kelsey conducted his conversation with the Applicant, the evidence would have been admissible as on the facts before the Judge. The fact that questions were asked by DC Kelsey instead of PC King cannot change the fact that the questions were asked for the purposes of the assault enquiry especially as one of the principal reasons for DC Kelsey dealing with the matter was to ensure that questions about the drugs investigation were avoided.

34. Mr Sekar submitted that in any event the questions were not solely to establish the Applicant's identity and hence the subject of that exception to a caution being given, because the exception does not cover use of a nickname as opposed to a name. For our part however we conclude, again on the findings made by the Judge, that the questions about "Dave" were asked solely to establish whether the Applicant was the same person described by Hooper in the assault enquiry as "Dave", and hence were "solely to establish his identity".

35. The fact that DC Kelsey might wish to or be able to use the answer to such questions in another context does not bring them within Code 11.1.A or Code 10.1. If there were some ulterior motive in asking the questions which amounted to obtaining evidence by a trick different considerations would apply and a caution must be given, but that does not, on the Judge's findings, apply here. Nor is it the case that if a question asked in one enquiry incriminates or might incriminate that person in another enquiry that a caution must be given. It will depend entirely upon circumstances of a particular case and whether the questions asked are about the offence and regarding the suspect's involvement or suspected involvement in that offence. The cases of Batley, Sparks and Hunt cited to the Court each concern cases where questions were being asked about the offence itself and the suspects involvement in it rather than in relation to an wholly unrelated matter as here.

36. We are therefore satisfied that DC Kelsey's questioning of the Applicant was not an interview under C.11.1.A nor questions about his involvement or suspected involvement in the drugs investigation requiring a caution to be given under C.10.1.

37. There is no proper basis upon which the Applicant can challenge the Judge's findings of fact. The Judge had the opportunity to hear PC King, DC Kelsey and DC Forster on the voir dire and did not have any evidence from the Applicant to balance against the police evidence. She was entitled to accept the police evidence as she did and any argument that no reasonable Judge could have made the findings she did on the evidence before her is unsustainable.

38. We are however, unlike the Judge, satisfied that the admission made by the Applicant that he was "Dave" is a confession within the definition of that word under section 82(1) of PACE. The definition that confession includes "any statement wholly or partly adverse to the person who made it" is in our view wide enough to cover the admission made by Dixon in the circumstances of this case. It may well have been admissible in any event as an admission at common law but is certainly admissible as a confession under section 76(1) of PACE unless excluded by the Court in pursuance of that section, or under section 78.

39. The Judge dealt expressly with section 76(2) and was satisfied that if the statement could be construed as a confession it was not obtained by reason of oppression or in consequence of anything said or done which would render it unreliable. She found that there was nothing which could possibly amount to any inducement to Dixon to make the statement, which he had made voluntarily in the context of an ongoing complaint about an assault, nor was there any suggestion of hostile or aggressive questioning. Mr Sekar was asked at the voir dire whether he was able to identify anything said or done by the officer which could in the circumstances render the statement unreliable but he was unable to do so. The Judge declared herself satisfied beyond reasonable doubt that there had been no oppression and nothing to render any confession unreliable. She was entitled to come to that conclusion upon the evidence before her.

40. It is implicit in the Judge's ruling that she considered section 78. There was no basis upon which she could have concluded that there was any unfairness in the obtaining of the witness statement or that its submission would have any adverse effect on the fairness of the proceedings. We accept the Crown's submissions made in writing before the Judge and relied upon before us in relation to section 78. The decision to take the statement had already been taken by PC King in relation to an unrelated matter by the officer connected with that investigation. The further statement dealt merely with the clarification required by PC King and no more. The clarification sought was a reasonable one to seek in the context of the assault allegation and DC Kelsey acted merely as agent for PC King and did no more than he would have done. The evidence obtained by DC Kelsey would therefore have been obtained by PC King in any event and in the same format and manner. The reasons why DC Kelsey obtained the statement were valid, in order to see Dixon for himself and to prevent questions being asked which would damage the drugs investigation, and did not result in any unfairness to the Defendant. Any statement taken by PC King would have been admissible against the Applicant in the circumstances and the fact that DC Kelsey took the statement makes no material difference.
Conclusion.

41. The ruling by the Judge that there had been no breach of section 76 or section 78 of PACE or of Article 6 of the ECHR was correct. Her findings of fact upon which her ruling was based cannot properly be challenged and the application for leave to appeal her decision must be refused.