England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2A 2LL
		15 December 2015

1. MRS JUSICE LANG: The Claimant seeks judicial review of the dismissal of his complaint against a police officer in the Hampshire Constabulary for his failure to comply with paragraph 11.13 of Code C of the Codes of Practice, issued pursuant to section 66 of the Police and Criminal Evidence Act 1984 ("PACE", in not recording his comments after being cautioned for a suspected driving offence.
2. The Claimant was granted permission by Deputy Judge Mr John Howell QC at an oral hearing, after permission was initially refused on the papers.
3. The facts
4. On 23 January 2013 the Claimant was stopped by Police Constable Greenhow of the Hampshire Constabulary because he was seen using his mobile phone when driving. When his licence details were checked at the scene, it emerged that his licence had expired. PC Greenhow completed a T60 mobile phone fixed penalty notice form and explained it to him. He told him he was being reported for using the mobile phone when driving and administered a caution in the standard terms:

i. "You do not have to say anything, but it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence."

5. PC Greenhow stated in his witness statement that he asked the Claimant if he had a reply to which the Claimant said "I don't think your three things are big enough", gesturing to the small box on the fixed penalty notice form available for recording replies.
6. PC Greenhow said that he wrote down the Claimant's words on the form, explained the fixed penalty notice to him again and read his reply back to him. The Claimant then said he wanted to give a longer reply and asked him to write it down in his notebook, but PC Greenhow said that he had already recorded his reply on the ticket. PC Greenhow then informed him that he was being reported for not having a valid driving licence and cautioned him again. On this occasion, the Claimant made no reply.
7. As the Claimant has never made a witness statement in these proceedings setting out his own account of what occurred, I accept the account given by PC Greenhow.
8. The Claimant was prosecuted and the charges were found proved in his absence. He failed to attend court on three occasions between August 2013 and September 2014 and no substantive defence was ever put forward. He was fined and his licence was endorsed.
9. On 21 January 2014, a year after the event, the Claimant filed a formal complaint against PC Greenhow complaining that there had been a breach of paragraph 11.13 of Code C. In his letter of complaint he said:

i. "PC 23218 alleged a mobile phone offence and so he wrote out ticket. However, when I denied the offence, he got a little upset. When I asked him to enter my full detailed reply in his notebook because his standard box on his standard form was too small and then allow me to check and sign as to its accuracy as per Code C paragraph 11.13 of PACE, he refused."

10. The complaint was investigated by Mr Nicholas Harris, who is a professional standards investigator employed by the Hampshire Constabulary. In his decision letter dated 1 May 2014, he did not uphold the complaint. He had been advised by Mr Dadd of the Hampshire Constabulary that since PC Greenhow was not conducting a formal interview, Code C paragraph 11.13 did not apply.
11. The Claimant appealed, but his appeal was not upheld. The decision letter from Detective Chief Inspector Dawson, an independent appeals officer in the professional standards department, set out an opinion from Mr Stephen Field of counsel. She then stated that she had sought advice from Mr Dadd, Hampshire Constabulary's PACE and custody adviser, who gave advice in the following terms:

i. "The point Mr Dadd was making was that section 11 of Code C related to 'interviews - general'. The whole of that section deals with different aspects of a formal interview and 11.13 deals with comments made that are ancillary to the interview but have a bearing on the case (very much in the same way as 'significant statements').

ii. His interpretation of this part of Code C is that it does not apply to an officer simply reporting a person for an offence when no interview takes place, particularly where the comment made after being reported has no practical bearing on the case. He appreciated that this is a matter of interpretation and that the barrister Mr Field has a different view. In Mr Dadd's view, the circumstances of the case that Mr Field refers to are totally different from the one we are looking at. It could be argued that it could be applied in principle, but in reality in practice it is so far removed from the circumstances of this case that it is neither helpful nor, in his view, particularly relevant. The case of Coelho does not make any comment as to the application of Code C 11.13 to replies made after caution."

12. The law
13. Paragraph 11.13 of Code C provides:

i. "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. See Note 11E."

14. Note 11E states:

i. "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."

15. Paragraph 11.4 and 11.4A of Code C provide:

i. "11.4. At the beginning of an interview the interviewer, after cautioning the suspect... shall put to them any significant statement or silence which occurred in the presence and hearing of a police officer or other police staff before the start of the interview and which have not been put to the suspect in the course of a previous interview... The interviewer shall ask the suspect whether they confirm or deny that earlier statement or silence and if they want to add anything.

ii. 11.4A. A significant statement is one which appears capable of being used in evidence against the suspect, in particular a direct admission of guilt. A significant silence is a failure or refusal to answer a question or answer satisfactorily when under caution, which might, allowing for the restriction on drawing adverse inferences from silence, see Annex C, give rise to an inference under the Criminal Justice and Public Order Act 1994, Part III."

16. In R v Coelho [2008] EWCA Crim 627 the Court of Appeal Criminal Division held there had breach of paragraph 11.13 when a police officer had a conversation in Portuguese with a suspect detained at the police station, but he did not make a record of it as originally stated to him in Portuguese, nor did he give the suspect a chance to read, correct and sign it. The conversation took place several hours after the formal interview and when the suspect was being brought up from the cells to be charged. The court referred to the case of R v Keenan [1990] 2 QB 54 in which the Court of Appeal emphasised the importance of compliance with the requirements to make a contemporaneous record of an interview to prevent verballing. Keenan was not concerned with the distinction between comments made inside and outside a formal interview.
17. It was common ground that, although a breach of the PACE code is not of itself a disciplinary offence, it may amount to "misconduct" under the Police (Conduct) Regulations 2012 depending on all the facts of the case.
18. Conclusions
19. In my judgment, it is plain from the express words of paragraph 11.13 that it is intended to apply to comments made "outside of the context of an interview". The Hampshire Constabulary erred in stating that it did not apply outside a formal interview. It does. The purpose of this provision is to ensure that informal comments are recorded and checked with the suspect to reduce the risk of verballing and later disputes in court about what was or was not said at the scene or outside of an interview.
20. The limitation on the scope of the requirement in paragraph 11.13 is that it only applies where "the comments might be relevant to the offence". So comments which are irrelevant need not be recorded. I do not accept that the duty only applies to incriminating comments. It also includes exculpatory comments. These may be of particular importance given the risk of adverse inferences if a matter is later relied on by way of defence, but was not mentioned.
21. I also consider that the phrase "comments which might be relevant to the offence" in paragraph 11.13 is wider in scope than the term "significant statements" in paragraph 11.4, as defined in 11.4A.
22. I do not consider that the requirement under paragraph 11.13 only arises where a caution has been given. In this case, PC Greenhow did administer a caution and then asked the Claimant if there was anything he wanted to say. It is irrelevant whether or not PC Greenhow was or was not required to administer a caution. He had chosen to do so, in the exercise of his discretion. In those circumstances, it would have been a breach of paragraph 11.13 not to record what the Claimant said if it was potentially relevant.
23. I am not convinced that the Claimant's comment could have been relevant to the offence. However, PC Greenhow did write down what the Claimant said and read it back to him, so he did comply with paragraph 11.13 to that extent. He appears not to have asked the Claimant to sign it to confirm its accuracy. That partial non-compliance was so trivial that, in my view, it could not have amounted to misconduct, as Mr Field rightly concedes.
24. When the Claimant then went on to say that he wanted to add to his original response and asked PC Greenhow to make a note of what he had said in his notebook, I accept it is arguable that PC Greenhow ought to have recorded this too because, as Mr Field submitted, it was an unsolicited comment which might have been relevant to an adverse inference at a later stage, if he had been asked why he did not explain his defence when cautioned at the scene. Just as, if the Claimant had gone on to make any substantive unsolicited comments about the circumstances of the offence, this too would arguably fall within paragraph 11.13.
25. However, Hampshire Constabulary did not consider whether or not these were "unsolicited comments" "which might be relevant to the offence" because they considered that paragraph 11.13 could not apply to this situation. In my view, this was an incorrect interpretation of the Code.
26. Assuming that the duty to record the comments did arise under paragraph 11.13, it may very well be that PC Greenhow's failure to do so was not sufficiently serious to amount to misconduct for the purposes of a disciplinary offence. That was a matter, in my view, for the Hampshire Constabulary to determine. Unfortunately, because the Hampshire Constabulary misdirected themselves on the meaning and extent of the Code, they did not properly consider the merits of the Claimant's complaint.
27. In those circumstances, I conclude that the claim for judicial review succeeds and the matter ought to be remitted to the Hampshire Constabulary for reconsideration.
28. MR JUSTICE LANG: How long do I have to wait for you?
29. MR FIELD: I am very grateful, my Lady. I do apologise.
30. My solicitor has just handed me the Claimant's costs schedule for the hearing of today's date. Apparently it was sent to the Defendants yesterday.
31. MR JUSTICE LANG: So you are applying for costs.
32. MR FIELD: I do apply for costs, please, my Lady.
33. MR JUSTICE LANG: Yes. I have just had a very brief look at your schedule and I nearly fell over.
34. MISS LEEK: My Lady, I wonder if I might have a copy of that. It did not make its way to us.
35. MR FIELD: It did go to my learned friend's instructing solicitor.
36. MR JUSTICE LANG: Right.
37. MISS LEEK: It did not make its way to me then.
38. MR JUSTICE LANG: No. I am afraid that sometimes happens. Do you want to just take a moment to have a look at it, Miss Leek?
39. Your solicitor also, I think, submitted a schedule which I have seen although I cannot immediately lay my hands on it. Yes. So we have a claim for £23,998.92 from the Claimant and --
40. MISS LEEK: Yes.
41. MR JUSTICE LANG: -- costs of £5,760 for the Defendant.
42. MISS LEEK: My Lady, the response to that might be obvious. (Pause)
43. My Lady, there is a claim here for 10 and a half hours in total, attendances on client. In my submission, that is completely disproportionate to --
44. MR JUSTICE LANG: Where are you?
45. MISS LEEK: 4 and a half hours. I am sorry. 4.3 hours on page 1, sorry --
46. MR JUSTICE LANG: This is Jones.
47. MISS LEEK: -- and 3.5 hours for the purposes of today's hearing. My Lady, given that there is no --
48. MR JUSTICE LANG: I am a bit confused by that.
49. MISS LEEK: There seems to be 4.3 hours for the hearing on 18 December and 3.5 hours for the purposes --
50. MR JUSTICE LANG: I see. So the first section is the permission application, the oral permission application. Yes.
51. MISS LEEK: My Lady, it is hard to see how there could have been 4.3 hours of attendances on the client when in fact there is not even a witness statement from the client, as your Ladyship pointed out.
52. My Lady, similarly, the perusal of documents and drafting. The grounds and skeletons appear to have been drafted by counsel. My Lady, in addition to that, there appears to be counsel's fees.
53. MR JUSTICE LANG: He is doing rather better than you are.
54. MISS LEEK: My Lady, certainly for a permission hearing that seems to be doing extremely well.
55. So far as today's hearing is concerned, my Lady, appearances at court. We have only been here for an hour and a half. Again, 3 and half hours attendance on the client. It is impossible to see what any purpose of that could have been since nothing appears to have changed between the permission hearing and now.
56. Again, my Lady, perusal of documents and drafting, 5.3 hours at £410 an hour when there are also counsel's fees. 3.8 hours of correspondence, letters, e-mails, telephone calls, once again, difficult to see what that could have been.
57. MR JUSTICE LANG: The travel 5.5 hours, at the bottom of the second page, from Chancery Lane.
58. MISS LEEK: My Lady, I am not clear where --
59. MR JUSTICE LANG: Rustem Guardian LLP, 5 Chancery Lane.
60. MISS LEEK: Yes, unclear how that could have arisen, unless, of course, that is from the solicitor's home which of course would not be --
61. MR JUSTICE LANG: No.
62. MR FIELD: I think the point --
63. MISS LEEK: My Lady --
64. MR JUSTICE LANG: Well, you will get your chance in a minute.
65. There are set rates, are there not, in the White Book as to solicitors? Perhaps we could find the page. Do you have a White Book with you?
66. MR FIELD: Could I take instructions, please? I am sorry, my Lady.
67. MISS LEEK: My Lady, I have made my points.
68. MR JUSTICE LANG: Yes. So you say excessive.
69. MISS LEEK: Completely.
70. MR JUSTICE LANG: You agree in principle that you are liable to pay.
71. MISS LEEK: My Lady, as much as I would like to oppose, I do not see I properly can.
72. MR JUSTICE LANG: No, costs follow the event.
73. Yes.
74. MR FIELD: My Lady, the only point I would make is I think there might be an element here where there has been perusal of documents and drafting twice that it is right that the pleadings and the drafting of skeletons and so on had been by counsel. It appears they have not been separated properly in terms of the fees that were discussed, but I submit that the drafting has been done. That might be something between counsel and solicitors as to where and who did that.
75. MR JUSTICE LANG: So your --
76. MR FIELD: I submit the figures are reasonable.
77. MRS JUSTICE LANG: Were you at the permission hearing?
78. MR FIELD: I was not, my Lady. It was a colleague.
79. MR JUSTICE LANG: No. So the £3,000 simply relates to the hearing of the permission hearing.
80. MR FIELD: It does. Obviously permission was refused, so there was work to be done. There was a persuasive exercise to make that oral renewal.
81. In terms of travel, it is right that my instructing solicitor formally is based at a London firm, but, of course, the clients are in Hampshire. That would justify, I would submit, the travel and the attendances on the client.
82. MR JUSTICE LANG: Sorry, it says "travel estimated for hearing". So I assumed that meant travel to the hearing.
83. MR FIELD: Could I just take instructions, please, my Lady? (Pause)
84. My instructing solicitor says he will waive the travel.
85. MR JUSTICE LANG: Sorry?
86. MR FIELD: He will waive the travel.
87. MR JUSTICE LANG: Right.
88. MR FIELD: In terms of attendances on client, it is right there is no formal witness statement, but my Lady has already seen, there is an account given in a letter. But moreover, the claim itself is supported by a statement of truth signed by the Claimant which whilst not formally articulating a witness statement, it adopts the surrounding facts and requires obviously careful consideration of what is actually being signed as an attestation of truth.
89. MR JUSTICE LANG: Okay.
90. Is there anything you wanted to add? You would prefer a summary assessment, I assume, just because a detailed assessment is so much --
91. MISS LEEK: My Lady, yes.
92. Can I just say this about the drafting? If one looks at the claim form, the vast majority of it, as your Ladyship will have noticed, is cut and pasted from the decision and the appeal. The only actual submission is on page 46 of the bundle and pages 47 to 49.
93. My Lady, it is really hard to see how perusal of documents and drafting could have taken two hours at £405 an hour plus counsel's fees of £3,000, plus 1.2 hours attendances on counsel and again, another 5.3 hours perusal of documents and drafting for the purpose of today's hearing at another £2,173.
94. My Lady, those are my only further observations.
95. MR JUSTICE LANG: All right. Thank you.
96. The Claimant has applied for the costs of the claim and I agree that as he has been successful that the Defendant should pay his costs. As this has been a short case, an hour and a half or so, it is appropriate for me to summarily assess the costs.
97. However, I am extremely concerned about the schedule which has been provided by the Claimant which shows a total claim for costs of £23,998.92 in relation to this hearing, an oral permission hearing in December 2014 and case preparation. This was a case in which both facts and law are within a very narrow compass. It seems to me that under almost all the headings, the claims for costs that the Claimant's solicitors have made are grossly excessive.
98. I am going to allow a claim for costs net of VAT in the sum of £12,000 and VAT on the £12,000 will be recoverable on top. It will be a matter for counsel, solicitor and client to decide between themselves how that sum of money is divided between them.
99. Is there anything else that I can deal with?
100. MR FIELD: No. Thank you, my Lady.
101. MRS JUSTICE LANG: Thank you very much.