Case No.: CO/99/3802&3804
IN THE SUPREME COURT OF JUDICATURE
HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
CROWN OFFICE LIST
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:28 July 2000
ARMAND MICHAEL PROULX
THE GOVERNOR OF H.M. PRISON BRIXTON
(1) BOW STREET MAGISTRATES' COURT
(2)CROWN PROSECUTION SERVICE
EX APRTE ARMAND MICHAEL PROULX
16. The applicant told Woody "I love Alex". He also told Woody of assaulting his former girlfriend's new boyfriend, saying he had "smashed his head on screen" and told the police it was self-defence. Woody spoke of the importance of honesty.
17. On 20th August 1998 the applicant was brought to the Folkestone hotel accommodation, there was increased reference to Mac as boss and to the question of honesty and respect. Woody was involved in retrieval of a bag from a parked vehicle, for which he was paid £60. Woody, Maxine, Alex and the applicant spent the evening dining and viewing a film in London, before returning for the night to Ashford, where the applicant was put up in hotel accommodation.
18. On 21st August 1998 those conducting the undercover operation felt that "the time is right to start introducing aspects of the offence under investigation, in the presence of the subject". During the morning, the applicant was left in a hotel room in Maidstone to receive a briefcase, and page Woody when he had done so. He was paid £75 for this. Woody and the applicant then returned to the accommodation in the Grand Hotel, Folkestone at about 2.00 p.m., where they remained until about 5.00 p.m., during which period the applicant drank three cans of beer. This three hour period started with a lengthy period of relaxed conversation and verbal games involving Woody, Maxine and Alex. The telephone then rang. A person calling himself Mac asked the applicant to speak to Woody, and the applicant can be seen on the video looking to his side listening intently to what he could hear Woody saying. This suggested firstly that Mac had been checking out the applicant and secondly that he had discovered something relevant in connection with some female in Burnaby which the applicant had not mentioned:
"W: Okay, yep. So what else is happening?
W: Well yeah he's the uh, he's the guy that answered the phone. Yep.
W: Yeah, yeah, why did you uh, oh you did eh, you checked him out already?
W: Uh yeah.
W: He what?
W: From Burnaby?
W: No, I, no way, I don't think so, no. Huh, I don't know. How long ago? Oh, yeah.
W: How did it happen?
W: She wa, she what? Is that right? (Laughter) Oh, that's something eh? No he never, no he never did, no.
W: What what was her name?
W: Well that's something, isn't it? No he never did. Uh, it's not something you say I guess on the first date, eh. Yeah. No, no he never. Or I would have fuckin' told you wouldn't I?
W: I would have told you if it was that. No, no, no, he never. Right. ....
W: Yeah, okay.....go over it. Okay. Go over that again. I just wanna, yeah. I'll I'll talk to him. Go over it again.
W: Yeah, okay.
W: But he's, he's from there. He's from Burnaby.
W. Yeah he's from there."
Woody sent Maxine and Alex away, and then told the applicant that he had not been completely frank:
"W You haven't been completely forthright with me.
W: Well Mac did uh some checking.
W: And uh is there something else you wanna tell me about?
P: Like what.
W: He's gonna fax something to me here but I'm not gonna get it for a day or so.
W: I don't know. You know what about, you tell me. We're the ones that are
being honest here and stuff right. Uh being open with us and we're working together and you doing lots of stuff for people I work with and for me.
W: You know so, pretty serious stuff and uh and we, we had a good conversation the other day and that was good. I don't have a problem with that. I've no problem with er with what I've just heard about but I don't (inaudible) myself. The only thing I do have a problem with is someone that's not being completely, completely, completely open with me that's my only concern. I'll close this. So why don't you tell me, what is it I just heard. Now I think you've got an idea. You're just not wanting to tell me right now. There's something that you haven't told me. Something Mac found out that uh that you haven't told us about.
P: Is it something to do with murder?
W: Could be."
19. The applicant then said that the finger of suspicion had been pointed at him, but that he did not do it. During the next 15 or so minutes, he denied being involved in the murder some 7 or 8 times. Woody in turn emphasised that it was irrelevant what had happened, that all that mattered was honesty, that he "sensed" that the applicant was not giving him the full picture or thought he was "bull-shitting" him, that Mac was going to check out whatever was said and that he (Woody) was going to be "in major shit" if Mac "finds out stuff" that Woody did not know. When Woody asked whether anyone had been charged with the murder, and the applicant said he did not know, Woody said "Well, I can probably answer that one for you. I'm not going to, but I probably could". Woody also made clear that "what's said in this room, stays in this room" and was "between you, me and Mac". The critical break-through from the respondent's viewpoint occurred as follows:
"P: And I told everything you want to hear because that's it
W: Ah no that's not it, you know it's not it. You're not, you're not telling me the whole thing but, and I know you're not, right there's something he said to me and he's concerned now there's some things he told me that you haven't told me that there's obviously more that you know about this whole thing than he would. Certainly should be anyway, so
P: I don't, I don't know. That's what I'm trying to say is, is that
W: I mean the other thing is I mean not to, not to, I don't want, yeah. It's okay, hypothetically, again, if you're the man responsible for whatever, as long, as long as there was good reason and ah you probably be on a pedestal, you know what I mean?
W: Well in Mac's in Mac's eyes you know. Like, how can I put this, like ah, sort of a [rite] of passage you know, do you understand what I mean. Like a, there would be, there would be no reason to check you out any further would there. As long as, if something happened, and if it was for the right reason. If it was for the wrong reason then it might be you know a different story, but, everything happens for a reason, they say.
W: Why was I brought here, why have I met you, I don't know. So what else.
P: Her boyfriend owed me money.
W: Is that right?
W: A substantial amount, or...
P: A lot.
W: Yeah, how much?
P: $3,000 dollars.
W: Would've been a lot for you wouldn't it?
P: A lot for me, yes.
W: Would've been.
P: I'm sorry.
W: What you sorry about?
P: Just for being dishonest, I was scared.
W: What were you scared of?
P: I don't know. I'm just,
W: What you scared of? Tell me and I'll try relax your fears.
P: Just like, I was trying to get him.
P: And then she was there and I did it. I went fucking
W: What, what did you do exactly, like just not exactly but was he there too?
P: He was supposed to be there.
W: Oh I see, right. Mike this doesn't bug me at all."
20. In further conversation the applicant stated that he was scared, shaking or shattered. Mr Massih suggested that this meant and showed that he was frightened of Woody or Mac. But it seems clear from the video and transcript that what he meant was that he was frightened about telling another person of involvement in the killing of Stacey Koehler. Hence his comment that one telephone call (i.e. by Mac) to whoever Mac got his information from (by inference, probably the police) could lead to the applicant being taken away (by inference, by the police). Hence also his comment about his own stupidity at talking in the way he had to Woody, after so short an acquaintance. Hence his explanation, when Woody indicated that he did not understand, that "I'm thinking oh gee, he might be RCMP or something, do you know what I mean. I know it's stupid." The Magistrate put the matter in terms which I can see no reason to fault, when he said:
"Mr Proulx was understandably reluctant to, and no doubt suffered a degree of mental turmoil before finally, admitting to Mr Doran that which he had kept quiet about so long."
21. When the applicant referred to the RCMP, Woody, whose acting abilities were clearly very considerable, remained true to his role, and the applicant went quickly on to make further admissions. He disclosed that, relying on knowledge obtained from the youthful involvement in car theft which he had earlier disclosed, he had wiped down the door handle on leaving Stacey Koehler's house to avoid fingerprints. He also volunteered that he had killed her by hitting her on the head with plastic dumbbells or single weights from inside her house. A little later, he added that he had taken the dumbbells with him and hidden them in a garbage bag about two miles away; in answer to a question from Woody he estimated that one was about 25lbs, the other about 5lbs. These statements, as it happens, match observed facts at the scene of the killing. Stacey Koehler was killed by blows to the head. A sand/gravel like material was found in the small of her back, similar to that found inside plastic weights. A number of plastic dumbbells were found in her home, but none of those was broken, split or leaking.
22. During this part of the conversation, Woody also referred to the applicant's account that Stacey Koehler's boyfriend had owed him money, and said: "Well he better of owed you money you know what I'm saying and er, er cos he [i.e. Mac], he'll find that out and just little things like that". This elicited a response from the applicant that: "The thing is that no one knew that he owed me money, I didn't tell anyone". The possible significance of this relates to a later change in the applicant's account (see below). A further question by Woody elicited that Woody was the first person whom the applicant had told of his involvement. During this period, Woody reiterated that it did not matter what the applicant's story, so long as it was the truth, and there was this exchange:
"W:. Yeah. Now you wouldn't be telling me this story to make yourself look better would you?
P: Yeah, yeah gee, yeah I wanna join, I wanna join your family just so I can in it, so I'm gonna tell you this story.
W: I just wanna make sure, people do that sometimes you know.
P: Well I'm definitely not.
Not long afterwards there followed this exchange:
"P: Some way, some way, I, I'm glad that I've told you. Well, I am glad.
W: I, I am too, but
P: Do you, listen
P: It was, it was on my chest.
W: Probably has been for some time.
P: No I just. I forgot about it, completely. I just though fuck, might as well fuck off. If they're gonna find me, they're gonna find me.
W: They're not going to find you.
23. In the next passage the applicant indicated a wish to have someone who
had "beaten the shit" out of his mother in Burnaby killed, "when I'm in with
you lot". He went on to say that he wanted to meet Mac and tell him that the
things he had probably looked into were "true". There was a further supposed
telephone call from Mac, during which Woody assured Mac that he had
straightened most of the things out in a "little conflab" with the applicant,
assured Mac that the applicant was 100% and asked him when he was coming over.
The applicant responded by saying that Mac "must be like the Grand Master",
"P: I just wanna meet him and say look, look, I'll lay it all on the table and I'll just say look. If I'm not worth for it then, [I'm not] ....
W: I think you will be.
P: Because I've told you fucking shit that I would never tell my fucking dog.
W: Yeah but we do know each other. ...."
24. Later, the applicant came out with his wish to get away from his current girlfriend and join Woody and his boredom with his current life-style, saying that when Woody came along he was just like "Jesus". Conversation continued for some time on a basis of intimacy, including at one point a friendly embrace, shaking clenched forearms. Woody gave the applicant a further £70 or £75. Towards its end, the applicant indicated that the previous occasions on which he had assisted Woody had led him to realise that there was lots of money in this business and "this could be a major opportunity". He went on:
"P: And I thought to myself I said well, then when you came back and all this fucking shit. Well today ran smooth, right. It'd be different if I told you what I told you maybe, but don't think so. If I told you this last night and things didn't run smooth then I'd be gone obviously. You understand?
W: Well I have the feeling that you would have told me eventually anyway you know.
W: I do.
W: I have a feeling you would have told me on you own.
P: Then good. Cos I honestly would have, cos it was playing my mind last night.
P: And that's why I was so quiet, cos I was quiet.
W: You were yeah."
Next day Woody and the applicant had a further one and half hour conversation. In it Woody said:
"W: .... I just want you to be comfortable with telling me stuff, ahh, even if, even if, ahh, you told me stuff yesterday that's not you know 100% .... Now is probably the time to square that up, cuz he is going to, he is going to find out stuff right. So, it's up to you, it's no big deal. If you've told me everything great, if you haven't then ahh, you might want to consider that."
25. The applicant's initial response was: "That was it, yes" and "Otherwise I wouldn't have poured, poured out my ...". After further conversation about the scope of activities of Mac and Woody's organisation and about the possibility of obtaining a false passport for the applicant, the applicant came out with the statement that all the stuff that he had told Woody the night before was "straight up" and:
"P: Down the line. That was it. Cuz I thought I have nothing hide now, there is no point.
W: As long as there is no, as long as there is nothing that [Mac] is going to find out that, that you know, that doesn't match up to your story, you know what I'm saying. ...."
26. Contrary to a submission made by Mr Massih, the statement "I thought I have nothing to hide now, there is no point" was clearly a reference back by the applicant to his state of mind in the previous day's conversation, rather than a description of his state of mind during the meeting on 22nd August 1998. A little later, Woody emphasised that
"[Mac] is going to want to make sure that he knows every piece of dust that's in the cracks and ahh, he'll go find this guy and he'll go talk to him himself or he'll send someone to go talk to him if he needs to. And .... he has ways of making people talk that ahh, heat can't use. You know what I'm saying.
.... Because I understand you know if someone ahh, you are telling somebody for the first time well, maybe you are a little nervous about telling him and you tell me things that maybe you know, you think you ought to say, like you know, I know you know that I think the truth is important.
.... And ahh, I wouldn't expect you to tell me everything in you know in one single day ...."
27. After further discussion about the applicant's future with Woody and Mac and the family nature of that involvement, this conversation took place:
"P: I'm just so scared.
W: Yeah, well you can always back out too, it's no big deal.
P: No, I don't want to, though.
W: No, you don't want to. No you don't, I am telling you, you won't. What you do, you say listen Woody I would like to try it out with you guys for a while and if it doesn't work out.
P: [inaudible] saying, you don't want to look like a fool. He didn't owe me money."
28. The applicant then gave as his motive for the attack on Stacey Koehler that someone had told him that her boyfriend had been "kissing and sort of tonguing" or necking Trish (Patricia Gulliford), the applicant's former girlfriend, at a party about a month before:
"So I went completely, like I said, enraged, like completely lost it. Because I was quite jealous when I was young."
Later in the conversation, he said that he was just glad he had got that off his chest.
29. The respective roles of the Magistrate and the Divisional Court
The Magistrate's role and powers are specified in s.9(2) and (8) of the Extradition Act 1989 as amended by the Criminal Justice and Public Order Act 1994. Prior to the 1994 Act, s. 9(8) required the magistrate to be satisfied "that the evidence would be sufficient to warrant his trial if the extradition crime had taken place within the jurisdiction of the court". S.9(2) conferred on the magistrate the like jurisdiction and powers, as nearly as may be, "as a magistrate's court acting as examining magistrates". The 1994 Act amended s.9(8) to the form set out earlier in this judgment. The test now is thus whether "the evidence would be sufficient to make a case requiring an answer by that person if the proceedings against him were the summary trial of an information against him". The 1994 Act also amended s.9(2) to confer on the magistrate "the like powers, as nearly as may be, .... as if the proceedings were the summary trial of an information against him".
30. It had already been established prior to 1994 that, when magistrates conducting a summary trial were faced with objections to the admissibility of evidence under ss.76 and/or 78 of PACE, they were obliged to determine the objections forthwith by holding a trial within a trial: R. v. Liverpool Juvenile Court, ex p. R.  QB 1. It was common ground before us that this was therefore the procedure that the Magistrate was bound to follow, as he did. In Reg. v. Governor of Brixton Prison, ex p. Levin  AC 741, 747G-748F, the House of Lords was concerned with s.9 as it stood prior to amendment by the 1994 Act. But Lord Hoffmann referred, in parenthesis, to the exclusion (subsequent to the date of committal in ex p. Levin) of committal proceedings from the application of s.78 by paragraph 26 of the Criminal Procedure and Investigations Act 1996 and thought it likely that the effect of s.9(2) and paragraph 6(1) of Schedule 1 to the 1989 Act would in future be to exclude extradition proceedings from the application of s.78 altogether. Before us and having regard to the amendment by the 1994 Act of the language of s.9(2) and s.9(8), it was common ground that s.78 continues, like s.76, to have potential relevance in extradition proceedings.
31. I set out at this point the wording of ss.76 and 78:
"76-(1) In any proceedings a confession made by an accused person may be given in evidence against him so far as it is relevant to any matter in issue in the proceedings and is not excluded by the court in pursuance of this section.
(2) If, in any proceedings where the prosecution proposes to give in evidence a confession made by an accused person, it is represented to the court that the confession was or may have been obtained-
(a) by oppression of the person who made it; or
(b) in consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in consequence thereof,
the court shall not allow the confession to be given in evidence against him except in so far as the prosecution proves to the court beyond reasonable doubt that the confession (notwithstanding that it may be true) was not obtained as aforesaid."
32. When considering s.76 of PACE, a magistrate has thus to determine various points: (a) what was said or done, (b) the circumstances existing at the time of the confession, (c) whether what was said or done was, in the light of such circumstances, "likely to render unreliable any confession which might be made by him in consequence of thereof" and (d) whether the confession was made in consequence of anything said or done likely to have the effect identified in (c).
Confession under s.82(1)
"includes any statement wholly or partly adverse to the person who made it, whether made to a person in authority or not and whether made in words or otherwise".
Then by s.78:
"78. In any 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."
33. The Magistrate in the present case, having considered the evidence and very detailed submissions put before him on each side, gave a careful summary of the facts and clearly stated reasons for rejecting the applicant's submissions that the evidence of his confessions should be excluded under either of these sections or on any basis.
34. The role of the Divisional Court in this type of situation was considered under the pre-1994 Act wording in Reg. v. Governor of Pentonville Prison, ex p. Osman  1 WLR 277. The Court put the matter as follows:
40. I turn to s.78. This section requires a judgment by the first instance
court, here the Magistrate, as to the overall fairness, in all the
circumstances, of admitting the evidence. The section is commonly described as
involving the exercise of a discretion. Whether described as a judgment or
discretion, it is well-established in a domestic context that an appellate
court will not interfere with a first instance court's conclusion under s.78,
unless the appellate court considers that it was unreasonable in a
Wednesbury sense: Christou  QB 989; Thompson  AC 811, 838-9.
41. Again, the extradition context of the present issue is material. In ex p. Levin, Lord Hoffmann, with whom the other members of the House agreed, accepted, with regard to the pre-1994 wording of s.9, that, since extradition proceedings were criminal proceedings, s.78 applied to them, but went on:
"On the other hand, it must be borne in mind that when the section is being applied to committal or extradition proceedings, the question is whether the admission of the evidence would have such an adverse effect on the fairness of those proceedings that the court ought not to admit it. This is not at all the same thing as the question of whether the admission of the evidence at the trial would have an adverse effect on the fairness of the trial. On the contrary, the magistrates should ordinarily assume that the powers available to the judge at the trial will ensure that the proceedings are fair. The question is, therefore, whether the admission of the evidence would have an adverse effect on the fairness of the decision to commit or extradite the accused for trial, even if the trial is a fair one. I think that the circumstances would have to be very unusual before magistrates could properly come to such a decision and I am sure that Beldam L.J. was right when he said in Ex parte Holland, at p.328:
"Examining justices could exclude the evidence from their consideration only if satisfied that its admission at the trial would be so obviously unfair to the proceedings that no judge properly directing himself could admit it. I have no doubt that even in such a case it would generally be far better to leave the decision to the trial judge who will, as I have said, be in a better position to assess the effect on the fairness of the proceedings and have had greater experience of deciding such questions."
In extradition proceedings there is even less scope for the exercise of the
discretion because, as McCowan L.J. pointed out in Ex parte Francis
(quoting the Supreme Court of Canada in Kindler v. Canada (Minster of
Justice) (1991) 84 D.L.R. (4th) 438, 488), extradition procedure is founded
on concepts of comity and reciprocity. It would undermine the effectiveness of
international treaty obligations if the courts were to superimpose discretions
based on local notions of fairness upon the ordinary rules of admissibility. I
do not wish to exclude the possibility that the discretion may be used in
extradition proceedings founded upon evidence which, though technically
admissible, had been obtained in a way which outrages civilised values. But
such cases are also likely to be very rare."
42. Mr Massih accepts that the relevance of s.78 remains as described in this passage by Lord Hoffmann. The same considerations based on comity and reciprocity continue to apply following the change of statutory wording. A magistrate considering the fairness of admitting evidence remains entitled and bound to have regard to the context of extradition proceedings in which the issue before him arises. His decision whether or not admit evidence, in the exercise of the powers preserved by s.9(2) as amended, is solely in and for the purpose of his determination on the issue of extradition. The trial judge in the proposed country of trial remains the person who should and will determine the critical issue of the admission of such evidence at trial. Thus the question which the Magistrate had here to ask himself therefore was not whether the confession would fall to be excluded in a purely English context. It was whether, bearing in mind that the ultimate issue was whether the applicant should be extradited to stand trial in Canada, he should under s.78 exclude the confessions from consideration as part of the evidence by reference to which he determined whether or not there was a case requiring an answer if the proceedings were a summary trial of an information before him. As Lord Hoffmann indicated, it is to be expected that it would only be in very unusual circumstances that a magistrate could properly conclude that he should in this context exclude evidence under s.78:
"It would undermine the effectiveness of international treaty obligations if the courts were to superimpose discretions based upon local notions of fairness upon the ordinary rules of admissibility."
43. He went on to preserve the possibility that the discretion under s.78
might fall to be exercised "in extradition proceedings founded upon evidence
which, though technically admissible, has been obtained in a way which outrages
civilised values", but repeated that "such cases are also likely to be very
44. Analysis of submissions
(i) S. 76(2)(b) of PACE
Against this background, I turn to consider the parties' submissions. I start, as Mr Massih did, with s.76(2)(b). Mr Massih submits that the applicant's confessions with respect to the killing in Burnaby of a female who can only have been Stacey Koehler were or may have been obtained in consequence of things said or done by Woody, and that the prosecution had failed to and could not prove the contrary. At times, he seemed to assume that that was all that mattered. But the subsection refers to "anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made in consequence thereof". The real issue is whether the Magistrate was, bearing in mind the limited scope of the review which this Court should undertake, entitled to conclude that the prosecution had proved beyond reasonable doubt that the applicant's confessions (notwithstanding that they might be true) were "not obtained as aforesaid", in other words were not obtained in consequence of anything said or done likely in the circumstances existing at the time to render unreliable any confession so made.
45. As I have already stated, the subsection requires the court to consider (a) what was said or done, (b) the circumstances existing at the time of the confession, (c) whether what was said or done was, in the light of such circumstances, "likely to render unreliable any confession which might be made by him in consequence of thereof" and (d) whether the confession was made in consequence of anything said or done likely to have the effect identified in (c). In Barry (1992) CAR 384, the Court of Appeal set out the steps to the application of the subsection in terms which referred to the onus of proof in respect of (d). But the subsection places the onus on the prosecution at each of stages (a), (b), (c) and (d). Again, Mr Massih sought to place heavy emphasis on this onus. But in the present case I consider it to have limited, if any, practical relevance. Points (a), (b) and (c) are essentially factual points. Here the basic facts are clear. The Magistrate had the benefit of a video-recording of the critical conversation in which the applicant made his principal confessions. He had a full transcript of the subsequent conversation on the next day, when the applicant made a modified confession regarding motive. He had very full admissions relating to the background circumstances and conversations leading up to these two main conversations. There was no real scope for doubt about the things said or done or about their causative effect in leading the applicant to make the confessions which he made. The circumstances existing at the time were also relatively clear, although there are points, which I will have to consider, where Mr Massih interprets them differently from Mr Hardy. The essential issue concerns point (c), which requires a judgment to be made on the facts as they existed at the time of the confession. The word "unreliable" means "cannot be relied upon as being the truth": see Crampton (1991) CAR 369, 372. Whether, in the light of other material or subsequent investigation, the confession may be said or shown in fact to have been true is immaterial.
46. In Barry the court described point (c) as involving a test which was "in a sense hypothetical since it relates not to the confession but to any confession". This does not in my view mean that the subject-matter or nature of the confession can be disregarded. A confession will commonly occur in the context of investigations or questioning, maybe under caution, relating to a specific offence. Even in the present case, although Woody knew no details, he was directing the applicant's attention first to some unspecified event involving a female in Burnaby and then, after the applicant had himself raised the possibility, to a specific killing of a female in Burnaby. The relevant confession is thus to involvement in Stacey Koehler's killing, a killing about which the applicant had already volunteered knowledge. The test in s.76 cannot be satisfied by postulating some entirely different confession. There is also no likelihood that anything said or done would have induced any other confession. The word "any" must thus, I think, be understood as indicating "any such", or "such a", confession as the applicant made. The abstract element involved also reflects the fact that the test is not whether the actual confession was untruthful or inaccurate. It is whether whatever was said or done, was, in the circumstances existing as at the time of the confession, likely to have rendered such a confession unreliable, whether or not it may be seen subsequently - with hindsight and in the light of all the material available at trial - that it did or did not actually do so.
47. S.78 calls for the exercise of overall judgment or discretion. S.76, although it includes some judgmental elements, involves an essentially fixed scheme. Once it is represented to the court that the confession was or may have been obtained as stated in s.76, then it is for the prosecution to prove if it can that it was not so stated; and, if the prosecution fails to prove this, then the confession must be excluded: Paris (1993) 97 CAR 99.
48. Mr Massih submits that there were a broad range of inducements which led or may have led to the making of the applicant's confessions. The principal potential inducements consisted, he submits, in the perceived attractions of the "mafia" apparently run by Mac and Woody in terms of the money, the "family" relationship of unconditional loyalty which acceptance as a member entailed, and the sexual attractions of membership personified by Alex. Membership would also enable the applicant to use the family's services to solve personal problems (like the grievance which he had against his mother's assailant). Then, he suggests, Mac's apparent omniscient knowledge, fear on the applicant's part and/or the holding out of violence as an acceptable and customary tool of the "mafia" family played or may have played a part, and so too the alcohol which the applicant drank on 21st August 1998.
49. Mr Massih also seeks to introduce in this context consideration of Code C issued under s.66 of PACE, which under s.67(11) is admissible in evidence, and "if it appears ... to be relevant to any question arising in the proceedings" is to be "taken into account in determining that question". Whilst there are situations in which the effect of breach of Code C must, almost automatically, throw doubt on the reliability of evidence obtained as a result of or following such a breach, the undercover operation created a situation in which the applicant believed and acted and spoke on the basis that he was among friends and discussing with them his future participation in joint criminal activity. He had no thought that he was speaking either to police officers or to persons charged with the duty of investigating any offence or charging offenders: see s.67(9) and (10) of PACE. There are, as will appear below, difficulties about regarding Code C as having any direct application to such a situation. But, even if it can have, its special nature means that the risk of unreliability cannot simply be derived from the fact of breach of that Code. Whether there was such risk can only be assessed by a careful consideration of the actual course of the undercover operation, including of course evaluation of the extent to which the operation was properly planned and reliably recorded. The direct relevance of Code C is in these circumstances in my judgment to the applicant's submission, in the context of s.78, that the whole undercover operation constituted an illegitimate "circumvention" of Code C. I shall come to that submission in due course.
50. In relation to s.78, Mr Hardy for the respondent submits that the applicant was throughout the operation simply responding to repeated statements by Woody that Mac and Woody and their organisation laid great stress on honesty and trust among members. Membership of Mac's and Woody's "family" was less, not more, likely to be obtained - while the cause for any concern would be greater not lesser - if the applicant told lies. Mac's omniscience would lead to discovery of any lies.
51. I have already stated my view, and agreement with the Magistrate, on the subject of fear. As to alcohol, the drinking of three cans (as shown on the video) was moderate, and took place over some three hours. It had no apparent effect and was not in my judgment likely to have had. The applicant was only on his first can at the time of the confessions made on 21st August 1998. Again, I see no reason to fault the Magistrate, who said:
"It misrepresents the position to say that Mr Proulx was plied with drink. There was modest social drinking which was of no consequence."
As to the sexual lure of Alex, the Magistrate said:
"The so-called "honey-trap" is an irrelevance that had absolutely no bearing on the making of the confession."
52. I do not myself doubt that Alex was an attraction, likely to have heightened the applicant's interest in joining Mac and Woody's "family". But that does not of itself mean that any confession of involvement in killing made by the applicant with a view to joining the family is likely to have been unreliable, rather than truthful. At one point it appeared that the "honey-trap" laid for the applicant might have had the particularly distasteful aspect of being designed to undermine the applicant's existing relationship in order to develop his relationship with Woody. But fuller examination of the relevant evidence indicates that the applicant was as keen as anyone to bring his existing relationship to an end. His general attitude and recorded sentiments towards his current partner do not elicit sympathy for Mr Massih's submission that there occurred here a gross infringement of his human right to a private life and personal relationship. In any event, this submission does not appear to me to bear directly on the issue under s.76. What is, however, important is that Mac and Woody's "family" was presented in a manner which, for a variety of reasons, was extremely attractive to the applicant. Therefore, Mr Massih submits, he had every motive to satisfy Woody, and so Mac, of his credentials to be admitted as a member of the "family".
53. For present purposes attention can be focussed upon the applicant's original confession to involvement in the killing. If that should have been excluded, then its subsequent elaboration and, on the next day, amendment as to motive must likewise be excluded. The elaboration and amendment flowed clearly from the original confession. For present purposes, I am prepared to proceed on the basis that, when judging the admissibility of the initial confessions, it would be appropriate to stop the clock at the point when they were or were about to be made, rather than to consider the confessions and the circumstances in which they were made as a whole. Conversely, however, if the original confession was properly admitted, I see no real basis for excluding its subsequent elaboration and amendment. My own view, having seen the material which the Magistrate considered, is that the farther through the videoed and recorded conversations that one goes, the more difficulty Mr Massih's submissions face. I find the course and contents of the behaviour and conversation which followed the original confession particularly difficult to square with the idea that the confessions to killing then elaborated and amended should be viewed as unreliable. I have set out above specific passages in which the applicant expressed in apparently genuine terms his rejection of any idea that he had made up his account of his involvement in order to join the family and his relief at having unburdened himself. I have taken into account his change in his account of his motivation, and also the fact that his account would not appear to account for all the forensic facts noted by the RCMP when investigating Stacey Koehler's killing (e.g. evidence of compression of her neck).
54. In the interchanges between the applicant and Woody leading up to the initial confessions to involvement, the applicant himself (by his question: "Is it something to do with murder?") volunteered the possibility that whatever Mac had discovered about the applicant could have something to do with a murder of which he said he had been suspected. He continued on some seven or so occasions to deny any involvement. These are factors which point to reliability. However, Woody did not accept the denials. Woody thus necessarily continued to withhold acceptance of the applicant as a potential member of the family. Further, the immediate trigger for the applicant's confession of involvement was Woody's statement that he would "probably be on a pedestal" and that in Mac's eyes it would be like a "sort of rite of passage" and
"there would be no reason to check you out any further would there would there. As long as, if something happened, and if it was for the right reason."
55. The last sentence indicates that Woody was not suggesting that the
applicant would get away with a lie told to further his admission to the
family. Woody had throughout been insistent on having a full and honest account
regarding any involvement in the killing in Burnaby. On the other hand, Woody
had also held out that, if the applicant was involved, it would not be or be
regarded as a problem of any sort. And in this last passage (with its colourful
references to being on a "pedestal" and to a "rite of passage") he was clearly
indicating that it would on the contrary probably be regarded as a positive
qualification. A critical question is whether the Magistrate was entitled to
conclude that Woody's insistence in these terms upon knowing the full story of
any involvement was not likely to have led the applicant to make a false
confession so as to satisfy Woody's evident belief that the applicant knew more
than he was saying and to obtain membership of the family.
56. This is however a question which can only be answered by considering the whole course of events and circumstances up to and as at the time when the initial confessions were made. It depends not merely upon the bare words exchanged but upon an assessment of the applicant, which the Magistrate was well placed to undertake, having observed him for three hours on video and having read voluminous transcripts. The whole exercise and the question to which it was directed under s.76 were for the Magistrate to undertake. This Court should only interfere with his decision if satisfied that he misdirected himself or came to a conclusion which no reasonable magistrate would have reached. For my part, and despite the arguments which Mr Massih was able to deploy (particularly with regard to the exchanges leading up to the critical initial confession), I am unable to conclude that the Magistrate either misdirected himself or arrived at a decision which no reasonable magistrate could on the material before him have reached. I would therefore dismiss the applications so far as they relate to s.76. It matters not in this respect whether they are formulated as applications for habeas corpus or by way of judicial review.
57. (ii) S.76(2)(a) of PACE
Mr Massih further submits that the prosecution has failed to satisfy the onus upon to show that the confession was not obtained by oppression of the applicant within s.76(1)(a). He invokes in this connection considerations overlapping with a number of those relied upon in the context of s.76(2)(b). He takes the definition of oppression adopted in Fulling (1987) 85b CAR 136, 142 per Lord Lane CJ: exercise of authority or power in a burdensome, harsh, or wrongful manner; unjust or cruel treatment of subjects, inferiors, etc. or the imposition of unreasonable or unjust burdens". In Parker  Crim LR 233, it was pointed out that the use of the word "wrongful" should be understood in the context of the rest of the definition, particularly the words "burdensome" and "harsh" which precede it and "unjust or cruel treatment" which follow. Mr Massih relies on the references to violence in the discussions between Woody and the applicant, to the evident willingness of Mac and Woody's "family" to use violence and to the applicant's references to being scared. I have already indicated my conclusion that, when the applicant referred to being scared, it was not fear which caused him to make the confessions, but fear arising because he realised that he was running a risk of disclosure to others, particularly the police, by making such disclosures to anyone. No threat of violence was made towards the applicant. There was no burdensome, harsh or wrongful application of the hand of authority upon him. Oppression of a person in an inferior position is a quite different matter from a trick leading someone to believe that he is among friends and about to be accepted as a member of a "family" engaged in nefarious activity: see also Parker, at p.234. Once the suggestion that the applicant was motivated by fear of Mac and Woody is rejected, there is nothing in the facts which could conceivably constitute oppression. The Magistrate concluded:
"Mr Proulx was never subjected to or threatened with any violence, although he was led to believe that he was in the company of others who were prepared to use violence. I do not regard, in the circumstances here, that as amounting to oppression of Mr Proulx."
Again I see no reason to disagree with the Magistrate.
58. (iii) S.78 of PACE and/or common law
S.78 has already been set out. We were also referred to the common law principles and authorities governing the admissibility of evidence, and the exclusion of confession evidence in particular, which are preserved by s.82(3) of PACE. Since it is accepted, in the present context, that any entitlement at common law to have the applicant's confession excluded would also be embraced by either s.76(2) or s.78, these constitute for present purposes no more than background. The respective roles of the Magistrate and Divisional Court cannot differ according to whether the applicant's complaint is based on s.78 or the common law.
59. Regardless whether the admissibility of a confession falls to be considered under s.76(2), its admissibility may fall to be considered under s.78: see Mason (1988) 86 CAR 349, 354. The decision required under s.78 must be made having regard to all the circumstances. Whether or not a confession is likely to be reliable is one relevant factor, and there is nothing in s.78 to require the court, under s.78, to exclude from consideration any material which may with hindsight shed light on the confession's actual accuracy: see e.g. Lin, Hung & Tin  Crim LR 817; Transcript p. 26G. But "possible unreliability is not the sole reason for rejecting a confession which has been obtained by improper means": Lam-Chi-ming v. The Queen  2 AC 212, 218 per Lord Griffiths. Lord Griffiths went on at p.220E-F:
".... the rejection of an improperly obtained confession is not dependent only upon possible unreliability but also upon the principle that a man cannot be compelled to incriminate himself and upon the importance that attaches in a civilised society to proper behaviour by the police towards those in their custody. All three of these factors have combined to produce the rule of law applicable in Hong Kong as well as in England that a confession is not admissible in evidence unless the prosecution establish that it is voluntary. This, perhaps the most fundamental rule of the English criminal law, now finds expression in England in s.76 of [PACE] ...."
60. Lord Griffiths was, as the concluding sentence makes clear, directing himself primarily towards situations falling within s.76, the confessions in Lam Chi-ming being the consequence of police brutality. But the three factors which he identified all also inspire s.78. Both the privilege against self-incrimination and the provisions of Code C governing police behaviour in relation to suspects (whether in custody or not) may have a very important impact on the fairness of admitting evidence of, in particular, confessions.
61. Mr Massih submits that the whole concept and conduct of Operation Implore were fundamentally irregular and misconceived. The circumstances in which the confession were obtained both infringed English notions of fairness with respect to police conduct and the trial of criminal charges, and also "outrage civilised values"; and the Magistrate should have excluded the confession on this basis. Mr Massih graphically portrays what occurred as a "descent into hell" brought about by the Faustian tactics of the police. Mr Massih relies upon like considerations to those which should in his submission lead to the exclusion of the evidence under s.76. But he also relies upon s.78 irrespective of whether the Magistrate was (as I have held) entitled to conclude that the applicants' confessions were not obtained as a result of things said or done likely in the circumstances to render them unreliable within the meaning of s.76.
62. At the very forefront of Mr Massih's submissions is an objection to the deception and entrapment involved in Operation Implore. Mr Massih points out that the applicant was living a hum-drum life in Kent, before being drawn into apparent involvement in illegitimate activity and offered inducements of a financial, personal and sexual kind. That is all correct. But I find myself unable to accept Mr Massih's further submissions that the applicant should be regarded as someone of good character whose private life and personal relationship with his girlfriend were sorely infringed. I have already considered why I see little scope for any convincing grievance in respect of the operation's interference with his private life and relationship with his girlfriend in 1998. Further, the applicant needed no urging to involve himself in apparently unlawful activities. Indeed, he was keen to continue to do so, during the long period when Woody returned to Canada in mid-1998. His conversation does not disclose any scrupulous attitude to temptation or violence at any point. During discussions with Woody, he disclosed both his own youthful involvement in car theft, and violence towards his ex-girlfriend's new boy-friend. I see no reason to doubt these particular admissions. Indeed, even if I had concluded that the applicant's confessions to involvement in Stacey Koehler's killing were made as a result of things said or done which were likely to render them unreliable, this would not amount to condemning the actual confessions as inaccurate. If the question were whether the confessions were actually accurate, I have already indicated that I would attach weight to the applicant's videoed conduct and conversation as a whole, after and well as before making his confessions.
63. Mr Massih further seeks under s.78 to invoke the delay occurring between 1995 and 1998. I do not see how that could merit any real weight in this or any context, and certainly it cannot have decisive weight. The applicant was interviewed and made a statement regarding his whereabouts at an early stage. If that statement was true, he and his former girlfriend should still be able to support it. If it was false, he is unlikely to have forgotten the truth, which he on that basis for some reason presumably did not want at the time to disclose, and there is nothing to show that he would have any greater difficulty in backing up any other account now than then. As to the time that has passed, the appellant left Canada. It took some time for the RCMP to mount Operation Implore with the Kent Police. There is no evidence which would justify a conclusion that either police force was in this respect at fault, whether in locating the appellant or in setting up the operation.
64. I return to the central question of fairness having regard to the nature and object of the undercover operation. We were taken to a large number of English decisions under s.78. In Christou and Wright  1 QB 979, the police set up undercover a supposed jewellery shop with the object of recovering stolen property and obtaining evidence of thieves or handlers who might bring stolen property to the shop. Transactions and conversations with the appellants were thus videoed, which were allowed to be adduced in evidence at their trial. The court upheld the judge's admission of such evidence:
".... the trick was not applied to the appellants; they voluntarily applied themselves to the trick. It is not every trick producing evidence against an accused which results in unfairness. There are, in criminal investigations, a number of situations in which the police adopt ruses or tricks in the public interest to obtain evidence. For example, to trap a blackmailer, the victim may be used as an agent of the police to arrange an appointment and false or marked money may be laid as a bait to catch the offender. A trick, certainly; in a sense too, a trick which results in a form of self-incrimination; but not one which could reasonably be thought to involve unfairness." (p.989A-B)
65. As to Code C, the court considered it simply inapplicable in such a situation. The appellants were not being questioned by police officers acting as such. Conversation was on equal terms. There could be no question of pressure or intimidation. The case was in this respect quite different from Mason (1988) CAR 349, where a confession was elicited by a lie about discovery of a fingerprint told by police to the appellant in custody and to his solicitor; and from Payne  1 AER 848, where the appellant in custody had been induced to undergo a medical examination by a representation that it was no part of the doctor's duty to examine him to give an opinion as to his fitness to drive. See Per Lord Taylor CJ in Christou and White at p.991A-D. But Lord Taylor CJ went on:
"In reaching that conclusion, we should ourselves administer a caution. It would be wrong for police officers to adopt or use an undercover pose or disguise to enable themselves to ask questions about an offence uninhibited by the requirements of the Code and with the effect of circumventing it."
66. Mr Massih submits that that is what the present operation involved. The present operation was not directed to observing and recording continuing involvement in theft or handling, but to obtaining from a suspect his confession to a killing committed some three years previously.
67. Smurthwaite and Gill (1994) 98 CAR 437 were again cases where undercover police had set up traps in which they caught two appellants who solicited them to murder their respective spouses. In upholding the admission of the evidence in each case, Lord Taylor CJ gave this further guidance on the application of s.78:
"In exercising his discretion whether to admit the evidence of an undercover officer, some, but not an exhaustive list, of the factors that the judge may take into account are as follows: Was the officer acting as an agent provocateur in the sense that he was enticing the defendant to commit an offence he would not otherwise have committed? What was the nature of any entrapment? Does the evidence consist of admissions to a completed offence, or does it consist of the actual commission of an offence? How active or passive was the officer's role in obtaining the evidence? Is there an unassailable record of what occurred, or is it strongly corroborated? In Christou and Wright (1992) 95 Cr.App.R. 264,  1 Q.B. 979, this Court held that discussions between suspects and undercover officers, not overtly acting as police officers, were not within the ambit of the Codes under the 1984 Act. However, officers should not use their undercover pose to question suspects so as to circumvent the Code. In Bryce (1992) 95 Cr.App.R. 320,  4 All E.R. 567, the Court held that the undercover officer had done just that. Accordingly, a further consideration for the judge in deciding whether to admit an undercover officer's evidence, is whether he had abused his role to ask questions which ought properly to have been asked as a police officer and in accordance with the Codes.
Beyond mentioning the considerations set out above, it is not possible to
give more general guidance as to how a judge should exercise his discretion
under section 78 in this field, since each case must be determined on its own
facts. (See Samuel (1988) 87 Cr.App.R.232,  Q.B. 615, 245,
Parris (1989) 89 Cr.App.R. 68, 72 and Jelen and Katz (1990) 90
Cr.App.R. 456, 465, and other cases cited in Archbold (1993) at
68. In the present case, the answer to the first and third of these questions is that the sole object of Operation Implore was to obtain the applicant's confession to a killing committed some three years previously. In nature it involved the creation of circumstances in which the applicant would feel sufficiently comfortable, safe and motivated to confess, although repeated emphasis was laid on the importance attached to any disclosure being honest.
69. As to the fourth question, although Woody had and used no detailed information, the effect of the supposed telephone conversation from Mac was to direct the applicant's attention to some striking incident involving a female in Burnaby, about which the applicant who was known also to be from Burnaby had had some involvement. The ensuing conversation with the applicant involved Woody actively suggesting that he had information from Mac about the applicant's involvement and actively pressing the applicant to disclose the full details of such involvement, on the basis that the applicant was not being frank and that honest disclosure was what mattered. Woody also assured the applicant that anything said would be kept secret. The appellant, having willingly taken part in apparently illegitimate activity and being intent to join an apparent "mafia" family, cannot I think assert any legitimate expectation that Woody, however much he trusted him, would necessarily keep his word in this respect. Nevertheless, the whole operation was designed to elicit a confession from a suspect which no-one can have thought that he would have been prepared to make had any interview been made or attempted. This is not therefore a case where the applicant had taken any prior step towards joining, or even demonstrated any prior wish to join, any criminal organisation. Contrary to Mr Hardy's submission, it is not a case in which the applicant can be said to have applied himself to the trick. The trick was applied to him and the most that the Government can say is that it succeeded because he fell in with it and for it.
70. In Bryce the undercover police had not only participated in an undercover operation designed to provide evidence of the appellant in possession of a recently stolen car offering it for sale at a knock-down price, but during the course of such participation had asked questions and obtained answers about the car's provenance, which went directly to the critical question of guilty knowledge. Further, the questions and answers were not recorded, and so the appellant had no means of showing by a neutral, reliable record what was or was not said. In these circumstances, the Court of Appeal held that the trial judge erred in admitting them. In Smurthwaite and Gill it was the former aspect (asking questions so as to circumvent the Code) which this court highlighted.
71. In two first-instance decisions, judges have, on facts apparently close to the present, relied on the former aspect to exclude evidence: see H  Crim LR 47, (Gatehouse J) a ruling which is however only very briefly reported, and Hall (unreported, 2nd March 1994) a decision of Waterhouse J., who has been able to supply us with a transcript. In Hall the defendant's wife had disappeared and the police suspected murder. An undercover police officer "Liz" befriended the defendant over several months, to the point where he became interested in marrying her. In a taped conversation she interrogated him repeatedly about what had happened to his wife, on the pretext that she had not been able to sleep, because she had been worried to death about his children if they were to become friendly with her and his wife were then to return. She made it clear that she was not satisfied that the defendant had told her all he knew about his wife's disappearance. The defendant agreed to meet on the next day and to tell her 100%. They met. He started by saying he had not murdered his wife, that he knew she was not return because of dreams and that she had walked out on him in the middle of the night. Liz repudiated these accounts in strong language, saying that she just wanted some sort of reasonable explanation as to where his wife was so that she could understand, accept and put it on one side and get on with her life. The underlying theme was that she wanted to know in order to commit herself to him. She wanted the truth and accept it and forget completely about it. All this was the final prelude to the defendant's confession. following which Liz questioned him persistently about why he had done it, what he had done with the body and what had happened about his motor car. The conversation took place on the basis that the two were in love and that she wanted to hear the truth once and never again and that his disclosure would never be repeated. Applying Lord Taylor CJ's dictum in Christou, Waterhouse J. held that the confessions must be excluded under s.78(1) as having been obtained in circumstances circumventing the Code.
72. Another first instance decision, Stagg (Ognall J., unreported, 14th September 1994) was much relied upon by Mr Massih. I do not find it of real assistance in the present context. The circumstances involved an attempt by the police by an undercover operation involving a woman police officer, Lizzie, to obtain either a confession or (that failing) a psychological profile which it was hoped could be adduced in conjunction with expert evidence to support a case that the defendant had a profile matching that of the killer of Rachel Nickell. Despite the most protracted operation lasting over seven months, and despite an invitation ultimately to admit the crime as a condition of maintaining the liaison that he was manifestly desperate to continue at almost any cost, the defendant repeatedly and continuously denied any involvement in the killing. As to the fantasies which the defendant expressed to Lizzie, the judge held that their
"increasingly extreme character .... was the product of deliberate shaping by the policewoman and encouragement by her. Much of what she said to him demands the conclusion that she was deliberately deceiving the accused by encouraging him to express his innermost fantasies because she enjoyed them and the more extreme, the better."
73. Indeed, at one point he even confessed to a murder which had never taken place. I do not regard this first instance decision as analogous to the present case on the facts or of any assistance in its resolution.
74. Equally, it seems to me that the respondent Government obtains no real comfort from Lin, Hung and Tsui  Crim LR 817, of which we have also seen a full transcript. The undercover officers there did not go along to find out about the Inland Revenue cheque although that became the ultimate subject of prosecution. That merely sparked off their investigation, the aim of which was to discover the future plans of the conspirators.
75. In the light of previous authority in this court, and in view of the nature and object of Operation Implore, I would, if the issue under s.78 related to a killing in this country and fell to be decided in a purely domestic context, expect the respondents to face very considerable difficulty in seeking to uphold a first instance decision which had admitted the applicant's confessions. I say this despite the margin allowed to such a court in a domestic context under the Wednesbury approach to appellate review.
76. Mr Hardy submits however that the present case can be distinguished from any previous authority and falls outside the scope of Lord Taylor CJ's dictum in Christou and White. He points out that Woody, as a RCMP officer, had no official status in this country at all. But Woody was operating in conjunction with English police officers and within the framework of a joint Canadian-English police operation, so that point does not by itself impress. Next, however, Mr Hardy points out that the killing which was being investigated was not justiciable in this country, and that the appellant could never therefore have been arrested here. In circumstances where there was no other way in which the appellant could have been interviewed, an undercover operation must, he suggests, be permissible. Further, the provisions of Code C cannot, he suggests, apply to an investigation which could never lead to prosecution here.
77. As to these points, the mere fact that there was no other way of interviewing the appellant cannot conclude the question whether it was fair to interview him in the way suggested. Newman J. also pointed out in argument that it is possible, at least in theory, that the RCMP could have sought an order to take evidence from the appellant in England under the Criminal Justice (International Co-operation) Act 1990 as part of their ongoing investigation into Stacey Koehler's killing. Whether the Secretary of State would think it fit to refer such a request to a court under s.4(2) may be a different matter. The appellant would anyway be entitled to and no doubt forewarned of his right to refuse give any evidence which might incriminate himself: see Schedule 1 paragraph 4(1)(a). We were told that no-one on the respondent's side gave any thought prior to Operation Implore to the possibility of invoking the 1990 Act. That does not surprise me. If the thought had occurred, one can be confident that it would have been quickly put aside. It would have been contemplated (correctly as it would seem to me) that an attempt to use the Act would have done nothing save forewarn the applicant that he was under continuing investigation and suspicion. The applicant himself would have been most unlikely to say anything, whether interviewed formally or informally, let alone anything incriminating which is what the respondent and the police were aiming to obtain.
78. The Codes of Practice under s.67 of PACE apply both to police officers and to "persons other than police officers who are charged with the duty of investigating offences or charging offenders": see s.67(9) and (10). I agree with Mr Hardy that this makes it difficult to apply their provisions to situations where there is under English law no offence which can be the subject of either arrest or investigation. Again, that cannot mean that an undercover operation is necessarily permissible. But it links with the more fundamental difficulty faced by the applicant in arguing that the Magistrate should have refused to admit the evidence about Operation Implore on the ground that it circumvented Code C. Code C, even if it were capable in the eyes of English law of having any relevance to the present operation, is on any view a domestic code, in the sense that it has no application in Canada, where trial is sought. It is for that very reason that any argument that the Magistrate erred in refusing to exclude the evidence of confessions under s.78 must be viewed on a different, international basis. The issue is whether - once again bearing in mind the margin allowed to the Magistrate under the Wednesbury approach - he ought to have excluded the evidence in the extradition context as "outraging civilised values".
79. The general requirement of fairness in the admission of evidence in criminal proceedings may be expected to be reflected in any developed system of law. But it is a quite different matter to suppose that it will in its application involve throughout the civilised world the same results as would follow in England from decided authorities, whether under s.78 or under common law. Current English thinking and practice as to what is fair and appropriate cannot be transmuted axiomatically into the touchstone of the outer limits of civilised values.
80. Mr Massih referred to guidance in the European Court of Human Rights on the general international significance of the privilege against self-incrimination: see esp. Funke v. France 1993 16 EHRR 297 and Saunders v. United Kingdom 1997 23 EHRR 313. In the latter case the Court said:
"68. The Court recalls that, although not specifically mentioned in Article 6 of the Convention (art. 6), the right to silence and the right not to incriminate oneself are generally recognised international standards which lie at the heart of the notion of a fair procedure under Article 6 (art. 6). Their rationale lies, inter alia, in the protection of the accused against improper compulsion by the authorities thereby contributing to the avoidance of miscarriages of justice and to the fulfilment of the aims of Article 6 (art. 6) (see the above-mentioned John Murray judgment, p. 49, para. 45, and the above-mentioned Funke judgment, p. 22, para. 44). The right not to incriminate oneself, in particular, presupposes that the prosecution in a criminal case seek to prove their case against the accused without resort to evidence obtained through methods of coercion or oppression in defiance of the will of the accused. In this sense the right is closely linked to the presumption of innocence contained in Article 6 para. 2 of the Convention (art. 6-2).
69. The right not to incriminate oneself is primarily concerned, however, with respecting the will of an accused person to remain silent. As commonly understood in the legal systems of the Contracting Parties to the Convention and elsewhere, it does not extend to the use in criminal proceedings of material which may be obtained from the accused through the use of compulsory powers but which has an existence independent of the will of the suspect such as, inter alia, documents acquired pursuant to a warrant, breath, blood and urine samples and bodily tissue for the purpose of DNA testing. In the present case the Court is only called upon to decide whether the use made by the prosecution of the statements obtained from the applicant by the inspectors amounted to an unjustifiable infringement of the right. This question must be examined by the Court in the light of all the circumstances of the case. In particular, it must be determined whether the applicant has been subject to compulsion to give evidence and whether the use made of the resulting testimony at his trial offended the basic principles of a fair procedure inherent in Article 6 para. 1 (art. 6-1) of which the right not to incriminate oneself is a constituent element."
The Court went on in paragraph 74:
"Nor does the Court find it necessary, having regard to the above assessment as to the use of the interviews during the trial, to decide whether the right not to incriminate oneself is absolute or whether infringements of it may be justified in particular circumstances. It does not accept the Government's argument that the complexity of corporate fraud and the vital public interest in the investigation of such fraud and the punishment of those responsible could justify such a marked departure as that which occurred in the present case from one of the basic principles of a fair procedure. Like the Commission, it considers that the general requirements of fairness contained in Article 6 (art. 6), including the right not to incriminate oneself, apply to criminal proceedings in respect of all types of criminal offences without distinction from the most simple to the most complex. The public interest cannot be invoked to justify the use of answers compulsorily obtained in a non-judicial investigation to incriminate the accused during the trial proceedings. It is noteworthy in this respect that under the relevant legislation statements obtained under compulsory powers by the Serious Fraud Office cannot, as a general rule, be adduced in evidence at the subsequent trial of the person concerned. Moreover the fact that statements were made by the applicant prior to his being charged does not prevent their later use in criminal proceedings from constituting an infringement of the right."
81. In Saunders the Court was concerned with the use in subsequent criminal proceedings of statements obtained from the accused in interviews conducted by Department of Trade and Industry inspectors under compulsion of law. It did not have to examine the scope of the concept of compulsion, still less situations of undercover activity. Nor is any direct assistance to be obtained in the present circumstances from authority such as Khan v. United Kingdom (Application No. 35394/97; decision of 12th May 2000 - where the only complaint was that tape recordings made in breach of right of privacy under Article 8 should not have been permitted to be used in criminal proceedings), save that it is perhaps worth noting that the Court said in paragraph 34:
".... While Article 6 guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence as such, which is therefore primarily a matter for regulation under national law (the aforementioned Schenk v. Switzerland judgment, paras. 45 and 46, and, for a more recent example in a different context, Teixera de Castro v. Portugal, no. 25829/94, para. 34, ECHR 1998-IV). It is not the role of the Court to determine, as a matter of principle, whether particular types of evidence - for example, unlawfully obtained evidence - may be admissible, or, indeed, whether the applicant was guilty or not. The question which must be answered is whether the proceedings as a whole, including the way in which the evidence was obtained, was fair. This involves an examination of the "unlawfulness" in question and, where violation of another Convention right is concerned, the nature of the violation found".
82. The general approach adopted in the European Court appears thus to be in harmony with that found in the common law and now under s.78 of PACE.
83. I for my part fully accept the privilege against self-incrimination as a principle that one looks to find generally recognised throughout the world. But that again is not the same as saying that there is no scope for argument about its application in particular circumstances. The general principle is by no means absolute in England, as Lord Taylor CJ's words, quoted above, in Christou and Wright aptly illustrate. English courts have been careful to emphasise the importance of balancing all relevant factors in all the circumstances of each case. I am unable to accept that the present circumstances fall within that exceptional class of case, where the Magistrate was bound to conclude that a consensus of civilised opinion exists which would be outraged if the present confessions were to be admitted.
84. Mr Massih referred us to Soering v. UK (1989) 11 EHRR 439, a case where extradition would have led to a real risk of treatment contrary to article 3 of the Convention. In such a case, there are "clear limits" to the rights which individual states otherwise possess "to control the entry, residence and expulsion" of nationals of other states: Chahal v. United Kingdom (1997) 23 EHRR 413, as discussed in Starmer, European Human Rights Law, page 509. I note however that the Court in Soering v. UK also attached importance to the same international theme as that which I understand underlies Lord Hoffmann's words in ex p. Levin. The Court said, at paragraph 89:
"What amounts to "inhuman or degrading treatment or punishment" depends on all the circumstances of the case .... Furthermore, inherent in the whole of the Convention is a search for a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual's fundamental rights. As movement about the world becomes easier and crime takes on a larger international dimension, it is increasingly in the interest of all nations that suspected offenders who flee abroad should be brought to justice. Conversely, the establishment of safe havens for fugitives would not only result in danger for the State obliged to harbour the protected person but also tend to undermine the foundations of extradition. These considerations must also be included among the factors to be taken into account in the interpretation and application of the notions of inhuman and degrading treatment or punishment in extradition cases.
85. The present case is concerned with extradition to stand trial in Canada. No doubt has been suggested about the fairness and justice of Canada's legal system, either generally or in respect of this specific case. That Canada has a well-developed system of protection of human rights under the Canadian Charter of Rights and Freedoms is well-known. That s.24(2) of the Charter makes inadmissible evidence obtained in breach of its provisions, when the administration of justice would otherwise be brought "into disrepute" is stated in Mohammed v. The State  AC 111 (PC), 122. But there was before the Magistrate, and is indeed before us, no information about the impact which this or any other provision of the Canadian Charter might have on the evidence gathered by the present kind of undercover operation. The only, very limited information put before the Magistrate consisted in DI Bungay's general observation that there are "no restrictions on undercover officers questioning suspects in Canada". It is impossible to conclude that the applicant is at risk of being treated in any manner which would flout any Convention value.
86. For these reasons, the present case was and is in my opinion pre-eminently one where an English court applying s.9(2) and (8) of the Extradition Act 1989 should refuse to exclude the confessions under s.78. The Magistrate was right. It should and will be for the Canadian court of trial to consider any issues of fairness and admissibility arising from the circumstances of the undercover operation and from the confessions to which it led.
87. Other bases of application
I turn to the applicant's submissions that he should be discharged under s.11(3)(b) and/or (c). I take first clause (c). Mr Massih accepts that he cannot suggest any bad faith in the laying by the Government of Canada of the accusation against the applicant, though he would wish to add the rider that this is because the full basis of the accusation has never been disclosed. However, he suggests that the case can be regarded as one of "supervening" bad faith, invoking words of Sedley J in re Murat Calis (unreported, 19th November 1993). I am at a loss to see how that case assists, or in what the alleged supervening bad faith is supposed to consist in the present case.
88. Clause (b) can also be dealt with shortly. I have already made observations on the subject of delay in the context of s.78. I see no basis for suggesting that it would in all the circumstances be unjust or oppressive by reason of the passage of time since the commission of the offence to return the applicant to Canada for trial there. Further, if there were any real reason at all to suspect that the applicant's defence will have suffered any prejudice by the delay, there is no reason to doubt that the Canadian trial judge would be able to give appropriate relief or directions.
In the upshot, I consider that the Magistrate was entitled to reach the decision to which he came under s.9(8) of the Extradition Act 1989 and I would dismiss the applications both for habeas corpus and judicial review and for relief under s.11 of the Extradition Act 1989.
Mr Justice Newman: I agree.
Order: Applications dismissed both for habeas corpus and for judicial review and for relief under section 11 of the Extradition Act; leave to appeal to the House of Lords granted and time extended to 28 days; legal aid taxation.
(Order does not form part of approved judgment.)