England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand London WC2A 2LL
		16 July 2007

1. LORD JUSTICE AULD: This is an appeal of the Director of Public Prosecutions by way of case stated against a decision of the Warley Justices on 13 September 2006, dismissing a charge against Billy Oliver Lawrence of disorderly conduct contrary to section 5 of the Public Order Act 1986. The offence consists in, and was charged as, the use of threatening, abusive or insulting words or behaviour, or of disorderly behaviour within the hearing or sight of someone to whom it was likely to cause harassment, alarm or distress.
2. There are a number of statutory defences provided by section 5 for proof by a defendant on a balance of probabilities, one which, possibly material in this case, is that the conduct the subject of the charge was reasonable. The section also provides in sub-section (4) that an officer may arrest a person without a warrant if he engages in conduct that the officer reasonably expects to constitute such an offence, which he warns him to stop and which the person immediately or shortly afterwards continues or resumes.
3. It is in the nature of the offence, when it is committed in the presence of police officers and in the teeth of warning from them to stop it, that arrests will quickly follow, often in circumstances of outright confrontation between the officers and the person arrested. So, on the prosecution case, if it had been able to call the officers to give evidence, it was here.
4. The prosecution case, as opened by the prosecutor to the justices, was that the police officers stopped a car containing Lawrence and others. The officers, on speaking to them, formed the opinion that they had grounds to search them for drugs. Lawrence allegedly then became aggressive and abusive. He called one of the officers "a fucking paedophile". He then made a motion as if to undo his trousers, saying "do you want to see my cock"? He then repeatedly told the officers to "fuck off".
5. The officers allegedly warned him about his behaviour, and told him that they would arrest him if he did not stop it. He did not stop it, and they arrested him and took him to the police station. All that, the officers later noted in their notebooks at the police station, and Lawrence was charged there with the offence, the arresting officer's account in summary being related to the duty sergeant in his presence.
6. It is not clear from the case stated what, if anything, Lawrence said when charged, save that he denied the charge. It is common ground that he was not interviewed before or after being charged, and was not invited to examine the officer's notebooks.
7. In due course, as a result of informal advance prosecution disclosure, Lawrence was notified before trial of the police officer's proposed evidence in the form of copies of their witness statements, and had an opportunity at the hearing, if he wished to take it, to contradict it. However, at the close of the prosecution opening, the justices, having been informed that Lawrence's advocate intended to apply under section 78 of the Police and Criminal Evidence Act 1984 to exclude evidence from the officers as to what Lawrence had said at the scene, decided to determine that issue without first hearing any evidence from the police officers or Lawrence. The issue for the justices turned on PACE Code C Part 11, which is headed "Code of practice for the detention, treatment and questioning of persons", and more particularly, Part 11.13. Part 11 of Code C, of which paragraph 11.13 forms part, is directed at the stage at which a person detained by the police is interviewed about the offence he is alleged to have committed, or at the stage when there is or may have been an exchange between such a person and a police officer about that alleged offence.
8. Part 11.13 provides:

"A written record shall be made of any comments made by a suspect, including unsolicited comments, which are outside the context of an interview but which might be relevant to the offence. Any such record must be timed and signed by the maker. When practicable the suspect shall be given the opportunity to read that record and to sign it as correct or to indicate how they consider it inaccurate."

9. There is then a reference to note 11E, which reads:

"Significant statements described in paragraph 11.4 will always be relevant to the offence and must be recorded. When a suspect agrees to read records of interviews and other comments and sign them as correct, they should be asked to endorse the record with e.g. 'I agree that this is a correct record of what was said' and add their signature. If the suspect does not agree with the record, the interviewer should record the details of any disagreement and ask the suspect to read these details and sign them to the effect that they accurately reflect their disagreement. Any refusal to sign should be recorded."

10. So there in the Code, in Part 11.13 and the note, is what should apply in cases, not only when a suspect has been interviewed in a conventional sense about an offence in the past which he is alleged to have committed, but where he volunteers comments to a police officer in an analogous situation.
11. Before the justices at the close of the prosecution case, it was argued on Lawrence's behalf, first, that there had been a breach of the "verbal" provisions of PACE, Code C, in particular, Part 11.13, with the consequence that for the justices to admit evidence of what Lawrence had allegedly said to the officers at the scene would have such an adverse effect on the fairness of the proceedings that the justices should, in the exercise of their power under section 78, exclude it. Secondly, it was maintained that it was unfair of the police not to interview Lawrence so as to give him an opportunity to deny, which he did, the language attributed to him, or not to offer him any other opportunity, as indicated by note 11E, to show him their notebooks and invite him to adopt the same procedure.
12. The prosecutor's response to the point before the justices was twofold. First, the mischief at which Part 11 -- indeed Code C as a whole -- was aimed was "verballing" by police officers of persons in custody, that is of falsely attributing to them self-incriminating statements. Secondly, there was, in any event, no unfairness to Lawrence here, since the language attributed to him had been put to him when charged and he had denied the offence, and the fact that he had not been given another earlier opportunity by way of interview or otherwise to deny use of that language would not prejudice him at trial, where he could give his denials in evidence or challenge the prosecution case when it called its evidence.
13. The justices, having considered Part 11.13 and note 11E, were of the opinion that Lawrence's words, part of his alleged conduct in committing the offence, were caught by paragraph 11.13 because, in the absence of an interview, he had had no opportunity at an early stage before trial to comment on the words attributed to him. Denying the matter at the point of charge, they said, was not sufficient to overcome that prejudice, and, therefore, they should exclude the evidence as unfair under section 78.
14. The prosecutor, left with the prospect of only being able to call evidence of what Lawrence physically did when confronted by the police but not what he said, offered no evidence and the justices dismissed the charge.
15. The question for the court in the case stated is in these terms:

"... did we err in law when we excluded evidence of the words spoken by the respondent, words which were said to have formed part of the charge he faced under section 5 Public Order Act 1986, on the basis that such words fell within the scope of code C paragraph 11.13 of the Police and Criminal Evidence Act 1984 Codes of practice."

16. Mr Talbir Singh, for the Director of Public Prosecutions, submitted that the answer to the justices' question is "yes, they did err in excluding the evidence of what Lawrence said ... ". He submitted that Code C, Part 11 applies to statements not themselves constituting an offence or part of it, but made subsequently by a person suspected of it to a police officer on or during arrest, after arrest, en route to a police station or whilst in detention in police custody. He added that Code C, Part 11 is, as a whole, in its terms and intent, aimed to protect suspects after commission of an offence of which they are suspected from false attribution to them by police officers of self-incriminatory statements normally, though not necessarily, in the context of an interview.
17. Mr R. de Mello, for Lawrence, has submitted that the words uttered by him on which the prosecution in part based their case were caught by Code C, Part 11, whether or not as part of an interview. First, he pointed out, rightly so far as it goes, that Part 11.13, on which the justices relied to exclude the evidence, includes in the general protection given by Part 11 to statements allegedly made in interview (and I quote in repetition of paragraph 13):

"... any comments made by a suspect, including unsolicited comments which are outside the context of an interview but which might be relevant to the offence ..."

18. Secondly, Mr de Mello pointed out, also by reference to the terms of Part 11.13, paragraph 11.4 and note 11E, the obligation of a police officer to note any such comments that are relevant to the alleged offence and to give the suspect subsequently an opportunity to read it and confirm or deny its accuracy -- an exercise, he submitted, that should have been conducted here in relation to the officer's notes made in their notebooks.
19. Thirdly, he submitted that the mere fact that the alleged words spoken incriminate the suspect or are relevant to whether he has committed the offence or go to the heart of the offence -- any of those things -- does not take them outside the protection of Part 11 -- again, correct, so far as it goes. He went on by way of illumination, as he put it, of the meaning of Part 11.13 to identify several points of unfairness which, he said, were a feature of the procedure adopted here (or not adopted) which put Lawrence in significant prejudice in not being in a position to contradict the evidence and the case against him until the point of trial. The contemplation of Part 11.13, he submitted, was that, if applicable, he should have had that opportunity much earlier.
20. I have mentioned the heading of Code C, which I repeat, "Code of practice for the detention, treatment and questioning of persons". It is not, in this part of the Code, a Code of Practice for dealing with persons in the course of committing the offence of which they are subsequently charged. Part 11 is headed "Interviews - general". That is the context of the whole Part. In broadly logical order, it follows, in its various paragraphs, the progress through the system from the point of apprehension and detention to final questioning, of charging and bail and so forth. It starts with custody records in Part 2; initial action in Part 3; detention of property in Part 4; right not to be held incommunicado in Part 5; right to legal advice in Part 6; I jump paragraph Part 7, which makes specific provision for Commonwealth citizens and foreign nationals; conditions of detention in Part 8; care and treatment of detained persons in Part 9; cautions in Part 10; and then in Part 11, interviews - general; and Part 12, interviews in police stations, and so on.
21. In my view, Mr Singh is correct in his submission that the provisions of Code C, Part 11, are not directed at what a suspect is alleged to have said as part of his conduct constituting the offence, but what he is alleged to have said of a self-incriminatory nature on or after arrest for it. Otherwise, all offences of a public order nature in which words spoken are a necessary or possible constituent of the offence, in whole or in part, would engage Part 11 of Code C, quite independently of and before any possibility of an interview, or "unsolicited comments outside an interview" could arise. I have in mind the collection of public order offences to be found in sections 1 to 5 of the 1986 Act, and those involving the stirring-up of racial hatred in sections 17 to 22 of the Act. Or take as another example the offence of sedition. Say a public rally, in respect of which the suspect may or may not be subsequently interviewed, or in respect of which, in interview, he remains silent. Are the words nevertheless, allegedly constituting the offence itself or part of it, to be excluded under Code C, Part 11.13 under the extended meaning there provided of an interview? Clearly not. If they were, it is hard to see why, as my Lord has pointed out, it should not also apply to acts as well as words constituting an offence charged.
22. All the authorities on which Mr de Mello relied to the contrary in his skeleton argument, and some of which he touched on today, were instances of alleged self-incriminatory remarks made by the suspect after the event constituting the alleged offence: R v Allen [2001] EWCA Crim 1607 concerned an exchange after arrest, when the suspect was in custody; Batley v Hampshire Justices QBD 20 February 1998 concerned the alleged commission of an offence of serving liquor after hours, not involving any spoken words, and a statement allegedly made in answer to a question from a police officer who entered the premises and asked what had been going on; and R v Longmuir 28 February 1995 CA (unreported) concerned a suspect charged with robbery and an alleged statement made by him on arrest over a month after the alleged offence.
23. As I have indicated, Mr de Mello sought, if necessary, to overcome the significance of the distinction between alleged self-incriminatory words of a suspect after the alleged offence with words allegedly constituting the offence by resort to general notions of fairness underlying section 78 and its supporting Code C. He suggested, as I have mentioned, that a person charged with a suspected offence under section 5 and who is not interviewed may not have an opportunity to contradict statements attributed to him until trial, and then only by going into the witness box.
24. That argument, if valid and relevant to the point of interpretation of Code C, would, as I have said, be equally applicable to acts as well as words constituting the alleged offence. No such unfairness arises, whether or not capable of affecting the interpretation of Part 11.13. Lawrence had an opportunity when charged to contradict what was alleged against him. He saw the witness statements of the officers in good time before the hearing, and would have had an opportunity at trial to challenge their evidence if the justices had given him an opportunity to do so.
25. There is accordingly, in my view, no basis as a matter of interpretation for extending Code C, Part 11.13 beyond its confines of protecting a suspect against fabrication by a police officer of self-incriminatory statements of a suspect after the alleged commission of the offence and not as part of it.
26. I should add two points. The first -- because the points have been addressed in the skeleton arguments -- is that we are not here concerned with the exercise of the justices' judgment under section 78 as to the unfairness to Lawrence on the incorrect premise that Code C Part 11.13 governed it. The second is that, in a case such as this where there is a section 78 challenge to evidence of statements made by an accused, whether as part of a formal interview or otherwise, it is normally desirable in the interests of justice for the court to hear the evidence sought to be excluded and to have canvassed in questioning any circumstances which it is said would render its admission unfair. Where, on such an application in summary proceedings, justices resolve to exclude it, they should then consider, after seeking the views of the parties, whether the substantive hearing -- if there still is one -- should be conducted by a differently constituted bench.
27. I would therefore answer the question posed by the magistrates "yes". I would allow the appeal, and I would direct remission of the case to the justices to hear the case.
28. MR JUSTICE COLLINS: I agree.
29. MR DE MELLO: My Lord, there is one problem, which is that the application made by the appellants, that is the Crown Prosecution Service, as I understand it from the claim form at section 7, they sought a ruling, in effect a declaratory ruling rather than a remittal. It was always, as I understand it, that the prosecution would not proceed with the trial following your Lordship's ruling.
30. LORD JUSTICE AULD: Mr Singh will tell us.
31. MR SINGH: I was unaware until that document was brought to my attention that those who instruct me were simply asking for a ruling.
32. MR JUSTICE COLLINS: Yes, it is section 7 of the form.
33. MR SINGH: Yes, section 7.
34. MR JUSTICE COLLINS: The applicant is unable to ask the Appeal Court to make any order other than to make a ruling on whether it considers that there was an error of law. So you are not asking for it to be remitted?
35. MR SINGH: It does not seem so.
36. MR JUSTICE COLLINS: You either are or are not.
37. MR SINGH: I am only bound by what my instructions are, and I was under the impression that I was being instructed to ask for a remission.
38. LORD JUSTICE AULD: Would you like to take instructions so that you are sure what you are asking for?
39. MR SINGH: Yes, it will not take more than a matter of five minutes.
40. LORD JUSTICE AULD: Would you mind doing that by telephone?
41. MR SINGH: I do not mind doing that at all.
42. LORD JUSTICE AULD: You do not have an instructing solicitor here at all, I take it?
43. MR SINGH: No.
44. LORD JUSTICE AULD: There is nothing else you would like to say, Mr de Mello?
45. MR DE MELLO: Nothing else. Only may I have the normal order for public funding or whatever it is?
46. LORD JUSTICE AULD: Yes. We will retire. I hope you can obtain instructions pretty smartly, Mr Singh.

(Short Adjournment)

47. LORD JUSTICE AULD: Yes, Mr Singh?
48. MR SINGH: Thank you for the time.
49. LORD JUSTICE AULD: What are you instructions?
50. MR SINGH: I confirm that my instructions are that it is not the intention of the prosecution to continue to prosecute this case once it is remitted back to the Magistrates' Court.
51. LORD JUSTICE AULD: So you seek declaratory relief in the form of?
52. MR JUSTICE COLLINS: Really just the answer to the question.
53. LORD JUSTICE AULD: Just the answer to the question. It is paragraph 15, is it not?
54. MR SINGH: Yes.
55. LORD JUSTICE AULD: That meets your purpose, does it?
56. MR SINGH: Yes.
57. LORD JUSTICE AULD: Very well. No other consequential applications?
58. MR SINGH: No, my Lord.
59. LORD JUSTICE AULD: We are grateful to both of you for your assistance.