Court of Appeal in Northern Ireland Decisions

CARF3071 25 October 1999

IN HER MAJESTY'S COURT OF APPEAL IN NORTHERN IRELAND _____ THE QUEEN -v- CLIFFORD GEORGE McKEOWN _____

CARSWELL LCJ

This appeal against conviction and sentence is brought by the appellant Clifford George McKeown, who was convicted on 2 March 1998 on six counts of robbery and possession of firearms by Girvan J sitting without a jury at Belfast Crown Court. On 22 April 1998 the judge sentenced the appellant to a total of nineteen years' imprisonment. His appeal to this court centred round the exercise by the judge of the discretion conferred upon him by section 12(3) of the Northern Ireland (Emergency Provisions) Act 1996 (the 1996 Act) to refuse to admit in evidence confession statements made in circumstances where breaches had taken place of the provisions of the Codes of Practice made by the Secretary of State under section 61 of the Northern Ireland (Emergency Provisions) Act 1991 (and now in force by virtue of the equivalent provisions in the 1996 Act).

The appellant was charged on eight counts of the indictment with the following offences:

Count 1 ? armed robbery of Aghalee Post Office on 26 September 1996;

Count 2 ? having a firearm with intent on the same date;

Count 3 ? armed robbery of Aghalee Post Office on 26 May 1994;

Count 4 ? having a firearm with intent on the same date;

Count 5 ? armed robbery at Centre Point Leisure Complex, Lurgan on 1 July 1996;

Count 6 ? having a firearm with intent on the same date;

Count 7 ? armed robbery at Trummery Farm Foods on 30 August 1996;

Count 8 ? having a firearm with intent on the same date.

The learned judge convicted the appellant on counts 1 to 6, but acquitted him on Counts 7 and 8. The sole evidence linking the appellant with the offences specified in Counts 3 to 8 consisted of admissions made by him in interview. In respect of Counts 1 and 2 (the Aghalee 1996 robbery) the Crown relied also on certain circumstantial evidence in addition to admissions made by the appellant.

The judge set out in convenient form in his judgment the facts proved in relation to each robbery, and we gratefully adopt his summary:

"THE 1994 AGHALEE ROBBERY

Aghalee Post Office is part of a larger shop premises located in the centre of Aghalee. A Spar grocery shop is run in connection with the Post Office business which is located at the rear of the premises. On the morning of 26 May 1994 shortly after the Post Office opened for business a consignment of cash arrived at the Post Office premises. While an assistant was receiving the cash a masked man appeared through the front door. He appeared to be holding a gun and he proceeded through the shop premises to the door of the Post Office part of the premises. He proceeded to require the Post Office assistant to fill a black holdall with the money. A second masked gunman was also present in the shop premises. The robbers ran out of the premises with the bag filled with the stolen money. Since the gunmen were masked no adequate description could be obtained in respect of their facial appearances. The robbers appear to have made their escape either in a car or on a lightweight motor bike. No relevant fingerprint evidence was obtained. On that occasion some £12,000 in cash was stolen. There was no forensic or other evidence implicating the defendant in the 1994 robbery apart from the disputed admissions alleged to have been made by the defendant in later police interviews ...

THE CENTRE POINT ROBBERY

Early in the morning of 1 July 1994 at around 7.30 am a masked gunman carrying a brown handled double barrelled sawn-off shotgun entered the premises at Centre Point Leisure Complex in Lurgan with another masked man. They proceeded to hold up the staff who were on the premises and forced a member of staff to open the safe and to put the money in the safe in a black bag. The robbers made good their escape in a Volvo motor car belonging to one of the members of staff. There was no forensic evidence against the defendant or other evidence implicating him apart from the disputed admission statements made by him in later police interviews ...

THE TRUMMERY ROBBERY

Shortly after 9.00 pm on 30 August 1996 the manager of Trummery Farm Foods while making his way towards his car parked at the side of the office building at 12 Meadow Row, Moira was approached by a man dressed in a policeman's uniform. Shortly afterwards the man produced a handgun and stuck it to the manager's head and forced him into the office. A second masked man with a black ski mask was also involved. The man originally dressed as the policeman put on a black ski mask also. At that time they stole £8,000 to £10,000 in cash from the safe which the manager had been forced to open. There was no forensic evidence implicating the accused and the descriptions of those involved in the robbery did not easily match the physical dimensions of the defendant. Apart from the disputed admissions made at a later police interview there was no direct evidence against the defendant.

THE 1996 AGHALEE ROBBERY

On 26 September 1996 around 10.20 am the shop manager in the Spar grocery business connected to the Post Office while working in the rear of the Post Office premises saw a white car approaching the front door. The passenger door opened and a man about 6 feet tall and wearing a balaclava mask and carrying a long gun entered the premises. The masked man shouted to the persons in the shop to get down. The shutters were pulled down over the front windows. Another smaller masked person entered the premises. The front glass in the Post Office itself was smashed. The postmaster activated the alarm and the robbers escaped taking a couple of cheques and a small amount of cash amounting to £805.79.

Shortly prior to the robbery a woman driver who had been travelling along Brankinstown Road, Aghalee turned into Hollow Road. She became aware of two vehicles in front of her. She turned into a house near the end of Hollow Road and the two cars travelled on towards Orken Lane. One was a large bright red saloon car and the other was a white Ford car. The witness while leaving a dispatch at the house where she had called noted the same two cars travelling back down Hollow Road. When the witness left the house and was driving back onto the Hollow Road turning into Orken Lane she noted the two cars coming back up Hollow Road the white Ford still in front of the red car. At all times she noted two people in the red car and one person in the white car. The witness began to become suspicious of the two cars. She turned right into Orken Lane and she knew that there was a private lane on her right which would bring her back onto Hollow Road and behind the cars so she turned right down the lane. When she got back into Hollow Road she could see the white Ford car was now sitting empty at an angle in the middle of the Hollow Road/Orken Lane junction. The red car had gone.

Fingerprint evidence at the Post Office itself was negative. Glass samples were taken from the broken window at the Post Office by PC Cathcart.

At 11.50 am on 26 September 1996 PC Rush observed a red Audi 80 car registration number JDZ 3841 being driven along the Brownstown Road into Rectory Park in Portadown. The witness recognised the driver as Stephen Lynas and the front seat passenger was the defendant. There was a male in the rear whom the witness could not identify. Later at 1.42 pm he stopped the vehicle at the junction of Greenview Gardens in West Street, Portadown. The driver of the vehicle was Stephen Lynas and the front seat passenger in the vehicle at this time was a person known to the witness as Marlow Moore. The car was removed to Gough Barracks for forensic examination. Tapings from the Audi car revealed that a total of 26 glass fragments of freshly broken appearance concentrated mainly in the front nearside and rear offside seats were recovered. Twelve of these fragments were further analysed. Ten were indistinguishable in terms of refractive index from the control glass samples taken from the glass screen smashed at Aghalee Post Office. Two of the fragments were further analysed and were indistinguishable in terms of thermal history and chemical composition from the control sample.

On 30 September 1996 at Orken Lane a twelve-bore calibre sawn-off over and under model ZH301 shotgun was found together with a cylinder charged realistic looking black plastic soft air gun modelled on CZ75 in good condition and designed to discharge plastic pellets at low velocity were found. Glass fragments on these were matched with glass from the broken Post Office screen. I am satisfied that these two weapons were used at the robbery."

The appellant was arrested on 14 October 1996 and taken to Gough Barracks, Armagh, where he was interviewed on sixteen occasions between 2.14 pm on 14 October and 4.37 pm on 16 October. The crime in respect of which the interviews were mainly directed was the murder of Michael McGoldrick on 7 July 1996, in which the police suspected that the appellant was involved, together with other activities connected with the Ulster Volunteer Force in the Lurgan area. In the course of the interviewing process the appellant made detailed oral statements of admission of complicity in several armed robberies. On each occasion the statements were made after the conclusion of the formal interview, when the appellant chatted to the detectives in informal mode and divulged quite freely many details of these robberies in which he had taken part. The judge held, we think correctly, that on each of these occasions the interview proper had come to an end. The case made on behalf of the appellant was that the circumstances in which the admissions were obtained from him were such that the judge ought to have exercised the discretion conferred upon him by section 12(3) of the 1996 Act, which provides as follows:

"It is hereby declared that, in the case of any statement made by the accused and not obtained by so subjecting him as mentioned in subsection (2)(b), the court in any such proceedings as are mentioned in subsection (1) has a discretion to do one of the things mentioned in subsection (2)(i) to (iii) if it appears to the court that it is appropriate to do so in order to avoid unfairness to the accused or otherwise in the interests of justice."

The material action which the judge was asked to take was that specified in section 12(2)(i), viz to exclude the statements.

The learned judge found that the procedure adopted by the detectives in a number of the interviews involved breaches of the Codes of Practice, but for the reasons which he set out in his written judgment he declined to exercise his discretion to exclude the statements. Before we consider the events in the interviews it is convenient to set out the material provisions of the Codes. Section 61(1) of the Northern Ireland (Emergency Provisions) Act 1991 requires the Secretary of State to make codes of practice in connection with the detention, treatment, questioning and identification of persons detained under the Prevention of Terrorism (Temporary Provisions) Act 1989. Section 61(8) provides:

"In all criminal and civil proceedings any such code shall be admissible in evidence; and if any provision of such a code appears to the court or tribunal conducting the proceedings to be relevant to any question arising in the proceedings it shall be taken into account in determining that question."

The Secretary of State duly made codes of practice, which came into force at the beginning of 1994. They were subsequently revised and Code I of the revised codes applied at the material time to the detention, treatment and questioning of persons detained under the 1989 Act.

Cautioning is dealt with in paragraph 10 of Code I. The basic rule is contained in paragraph 10.1:

"When there are grounds to suspect a person of an offence, and he is to be questioned regarding his involvement or suspected involvement in that offence and if his answers or his silence (ie. failure or refusal to answer a question, or to answer satisfactorily) may be given in evidence to a court, he must be cautioned:

(i) before any questions are put to him about the offence; or

(ii) before any further questions are put to him if it is his answers to previous questions that provide the grounds for suspicion.

This applies whether or not a person is under arrest."

The caution must be repeated if questioning is interrupted and re-started, as provided for by paragraph 10.3:

"When there is a break in questioning under caution the interviewing officer must ensure that the person being questioned is aware that he remains under caution. If there is any doubt the caution should be given again in full when the interview resumes."

The definition of an interview is contained in paragraph 11.1:

"An interview is the questioning of a person regarding;

(a) his involvement, or suspected involvement in the commission, preparation or instigation of acts of terrorism connected with the affairs of Northern Ireland, and/or

(b) possible offences under sections 2,8,9,10 or 11 PTA, and/or

(c) his being subject to an exclusion order.

Any such interview is required to be carried out under caution by virtue of paragraph 10.1(a) of this code of practice."

Paragraphs 11.3, 11.5 and 11.6 then prescribe the action to be taken in various circumstances:

"11.3 A written record should be made of any comments made by a suspected person, 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. Where practicable a person shall be given the opportunity to read that record and to sign it as correct or to indicate the respects in which he considers it inaccurate. Any refusal to sign should be recorded.

11.5 At the beginning of an interview carried out in a police station or office the interviewing officer, after cautioning a suspect, shall put to him any significant statement or silence which occurred before the start of the interview, and ask him whether he confirms or denies that earlier statement or silence and whether he wishes to add anything.

11.6 A 'significant' statement or silence is one which appears capable of being used in evidence at any trial for the offence about which the suspect is being interviewed. In particular, any mitigation or defence made by the suspect, as well as any direct admission of guilt, or failure or refusal to answer a question which might give rise to an inference under articles 3,5 or 6 of the Criminal Evidence (Northern Ireland) Order 1988 is a 'significant' statement or silence."

Paragraphs 11.11 to 11.19 then specify in detail the way in which interview records must be dealt with.

The judge held a voir dire in order to determine the admissibility of the statements and received considerable evidence from the detectives and the appellant, which he has set out in detail in his judgment. We need not repeat in extenso his discussion of the evidence, but propose to summarise his findings of fact and conclusions in respect of each interview material to the determination of the appeal.

We digress to mention that we agree with the judge's view expressed at page 17 of his judgment that the procedure on a voir dire in a case such as the present requires consideration. Where the defendant wishes to allege that he made the challenged statement by reason of one of the matters set out in section 12(1) of the 1996 Act, it is for him to establish prima facie evidence, as this court held in R v Thompson [1977] NI 74 at 80-1. Where, on the other hand, the issue is whether the court should exercise its discretion under section 12(3), the same considerations do not necessarily apply. As Hodgson J observed in R v Keenan [1990] 2 QB 54 at 64, where it appears from the witness statements that there were breaches of the Codes, it is ordinarily incumbent upon the prosecution to call evidence to explain the circumstances. The defendant in such a case is not bound to prove anything to set up a case for the exercise of the judge's discretion and it is not incumbent on him to give evidence first to set up a case for exclusion of the statements. If he seeks to do so, however, he should be permitted to follow that course.

If it is in issue whether the defendant did in fact make the statements attributed to him, this, as the judge correctly held, is a matter for the main trial. Where, however, the evidence on the voir dire has covered this issue the parties will commonly agree that that evidence should be deemed also to have been given on the main trial in a non-jury case, in order to avoid unnecessary repetition, and so unlike the present case it will be before the court.

Interview 1

This interview commenced at 2.14 pm on 14 October 1996 and was conducted by Detective Sergeant McKay and Detective Constable Doig. The appellant had been arrested along with other persons and the police had formed the intention to concentrate their interviews with the appellant on the McGoldrick murder. They informed the appellant that they believed that he was involved in this murder and other terrorist activities carried out by or on behalf of the Mid-Ulster UVF. He was cautioned in accordance with the terms of Article 3 of the Criminal Evidence (Northern Ireland) Order 1988. He declined to answer questions about the murder, although he talked freely on other topics.

The record of the interview states that it concluded at 4.16 pm, when the notes were read over to the appellant and signed by him as a correct record. After he had signed the notes he asked for and was given a cigarette. He commenced a free flowing conversation with the police officers, in the course of which he volunteered remarks which tended to show that he had been involved in the Centre Point robbery and had received part of the proceeds. During this conversation neither detective took any notes. They wrote out the content of the conversation some time after the appellant had been taken back to his cell. The note was not shown or read over to the appellant and he had not opportunity to see it or challenge its accuracy.

The judge found that the appellant was suspected of having taken part in the Centre Point robbery, to the knowledge of DC Doig, as well as in the Aghalee Post Office and Trummery Farm Foods robberies. The formal interview was mainly directed, however, as planned, to the McGoldrick murder. The judge also found that there was no preconceived plan between the interviewing officers or with their superiors to adopt a strategy of luring the appellant into making admissions in informal conversation after the conclusion of the interview. He held that in this, as in subsequent, interviews once the questioning stopped and the appellant signed the notes there was a break in questioning within the meaning of paragraph 10.3 of Code I. He found that the interview then continued in the subsequent conversation and held that the appellant should have been cautioned when he commenced to incriminate himself in respect of the Centre Point robbery. He also held that there had been various breaches of the recording provisions of Code I. We consider that he was correct in regarding the conversation as an interview, a term which normally will cover any discussion or talk between a suspect and a police officer, whoever instigates it: see R v Matthews (1990) 91 Cr App R 43 at 48, per Morland J.

DS McKay was concerned to know what course to take in the light of these unusual circumstances and he and DC Doig consulted Detective Inspector Gilmore. A special meeting was held about 4.45 pm that afternoon, attended by the four officers assigned to interview the appellant and by senior detectives. When the meeting had been given an account of what had happened, it was decided that the conversation following the conclusion of the formal interview should be recorded on a separate piece of paper, which should be stamped and certified by the supervising sergeant and Detective Inspector Gilmore. Detective Chief Inspector Bogle directed that if the appellant repeated this behaviour any admissions should be recorded in the interview booklet itself after he had left the interview room, and the record should then be duly certified and stamped. The obligation to caution the appellant was raised, but the judge found as a fact that there was no express direction given that he should not be cautioned if he started to implicate himself in other possible offences in post-interview informal conversations.

Interview 2

This interview, which commenced at 4.53 pm on 14 October, was conducted by Detective Sergeant Lynas and Detective Constable McIntosh. They informed the appellant that they were inquiring into the McGoldrick murder and cautioned him. No reference was made to the Centre Point robbery or to what the appellant had said about it in his conversation with DS McKay and DC Doig. The appellant made no reply to any questions relating to the murder. He signed the notes at the conclusion of the formal interview. Then the same pattern developed as in Interview 1. The appellant sat smoking and talking quite freely and openly about the Centre Point robbery and what he had done with his share of the proceeds. No record was made of this conversation until after the appellant had left the interview room. He was not cautioned after he had earlier signed the notes, nor was he shown or read the note of the conversation until a later date.

Interview 3

In this interview, which commenced at 9.31 pm on 14 October, the appellant was told that the detectives were inquiring into the McGoldrick murder and the Centre Point robbery, although no questions were actually directed to the appellant about the robbery. He was properly cautioned, but no reference was made to his earlier admissions about Centre Point. The interview terminated when the appellant's solicitor arrived to see him, and no opportunity for informal conversation arose.

Interview 4

This interview, which commenced at 10 am on 15 October, was conducted by DS Lynas and DC McIntosh. The appellant was informed that the officers were inquiring into the McGoldrick murder and the Centre Point robbery, and that these were carried out by the UVF. He was duly cautioned at the outset of the interview, but no reference was made to his previous significant statements about Centre Point. He did not make any admissions during the formal interview and he signed the notes at the end. He then launched once again into informal conversation, in the course of which he made detailed admissions about his part in the 1994 Aghalee Post Office robbery. No caution was administered before or during this conversation. The notes were again written up after the appellant had left the room. The judge held that there had on this occasion also been a break in questioning and that the interviewers were in breach of the Code in failing to caution him then.

Interviews 5 and 6

In Interview 5 the detectives told the appellant that their inquiries related to the McGoldrick murder and his membership of the UVF, and in Interview 6 that they were inquiring into the Centre Point robber, the McGoldrick murder and the appellant's membership of the UVF. He was duly cautioned in each interview. He made no admissions and did not have any supplementary conversation.

Interview 7

Interview 7, which commenced at 4.44 pm on 15 October, was conducted by DS McKay and DC Doig. They told the appellant that their inquiries related to the McGoldrick murder and the appellant's UVF activities. He was duly cautioned. He made no admissions during the formal interview and signed the notes at its termination. Once again he stayed on in the interview room, smoking and talking freely to the officers about the Centre Point robbery. They put a number of questions to him about the robbery and he made substantial admissions. He was not cautioned before or during this conversation. The notes of the conversation were made after the appellant had left the interview room and were not shown or read over to him.

Interview 8

In Interview 8 the interviewers informed the appellant that they were inquiring into the McGoldrick murder and the Centre Point robbery and cautioned him. They did not put to him any of the significant remarks about the robbery which he had earlier made. When asked direct questions about this robbery the appellant replied that he had nothing to say. No supplementary conversation took place.

Interviews 9 and 10

In these interviews the appellant was told that the interviewers were inquiring into the McGoldrick murder and his UVF activities. He was duly cautioned. He made no admissions and no supplementary conversation took place in either interview.

Interview 11

This interview, which commenced at 2.37 pm on 16 October, was conducted by DS McKay and DC Doig. They told the appellant that their inquiries were into the McGoldrick murder and his UVF membership. He was duly cautioned. During the formal interview he made no admissions. At its conclusion he himself wrote the certificate into the record, saying that he knew as much about the procedure as the police did. He then had a smoke and engaged in a casual conversation with the officers, in the course of which he made incriminating admissions about his part in the 1996 Aghalee Post Office robbery and referred to his involvement in the 1994 Aghalee robbery. He also made some reference to the Trummery Farm Foods robbery. As before, he was not cautioned before or during the conversation and the notes were only made after the appellant had left the room, and they were not shown or read to him.

Interviews 12, 13 and 14

No supplementary conversations took place during any of these interviews, no admissions were made by the appellant and the requirements of Code I were observed.

Interview 15

This interview, which commenced at 10.14 am on 17 October, was conducted by DC Doig and DC Woods. At the outset they told the appellant that their inquiries related to the McGoldrick murder and his membership of the UVF and he was duly cautioned. The appellant made no admissions during the formal part of the interview and at its conclusion he signed the notes. Following this he again entered into a supplementary informal conversation with the officers, in the course of which he made a number of admissions. This time it did not follow the usual course. The sequence of events was set out by the judge at pages 15 and 16 of his judgment:

"1. As on previous occasions following the signing of the interview notes the defendant allegedly became involved in a conversation with the interviewing officers which was not recorded at the time.

2. A knock came to the door and Detective Constable Doig was called to the telephone leaving the defendant with Detective Constable Woods for somewhat less than a minute in the room.

3. Detective Constable Doig returned and [the appellant] was informed that the admissions regarding robberies and events that had taken place during previous interviews had been recorded and that he was now being cautioned as regards them. An Article 3 caution was then administered.

4. The defendant said that he wished to make a written statement about what was being alleged against him and Detective Constable Woods went to get a statement form at 11.55 am.

5. The interviewers wrote out a record of what had allegedly been said by the defendant in the period between the signing of the notes and the knock at the door. The notes alleged that the defendant had said that the security guard, Walker, at Centre Point had brought the shotgun used in the robbery in before the robbery and a mobile phone and that there were 3 teams involved in the robbery he being the first, Walker the second and the other number 3. He allegedly said that he and Winters had planned to use Walker's motor cycle to make their getaway but it was too wet and they decided to use the Volvo car. The notes written out recording that alleged conversation were put to the defendant who signed them stating that he wished to state that he totally denied any of the matters alleged and wished to make a formal complaint against the policeman's behaviour to Detective Inspector Gilmore.

6. The defendant in the written statement he wrote out at the time emphatically denied that he had made admissions. He said that everything which Detective Constable Doig had written down in relation to the Centre Point robberies was first and foremost mentioned by him. In relation to the Centre Point robbery a man had already been charged with it so in his opinion the police had already got all the details which they were now trying to stitch him up with. He stated that in his opinion Doig, McIntosh, Lynas and McKay had decided amongst themselves that because they were getting nowhere in this murder inquiry they had decided to stitch him up on this matter. He alleged that Detective Constable Doig was the main culprit."

As the judge records later in his judgment, the appellant was very angry at the turn of events. He denied all the admissions attributed to him and averred that they had been fabricated by the detectives. He subsequently made a formal complaint against them. The interviewers made a record of the conversation in the appellant's presence and put their record to him. He signed the record, while denying that it was correct.

Interview 16

In this interview DS Lynas and DC McIntosh read over to the appellant the notes of the supplementary conversations held in Interviews 1, 2, 4, 7 and 11 and asked for his comments. He replied that they were fabrications.

The appellant gave evidence in the voir dire, to the effect that the admissions attributed to him were entirely false, that any remarks which he may have made on any of the topics concerned (none of which was incriminating) were made before the notes were signed and that no post-signing supplementary conversations were held. The judge considered the appellant's evidence in detail in his judgment and dismissed it in a number of instances as unbelievable. It appears from the terms of his judgment that where there was a factual conflict he rejected the appellant's evidence, accepting the "essential veracity of the police evidence on the voir dire."

The learned judge went on to consider in detail the issue of breaches of the Code and the exercise of his exclusionary discretion under section 12(3) of the 1996 Act. He held that there had been breaches of a number of provisions of Code 1. In respect of all but those related to the obligation to re-caution under paragraph 10.3, he held that the appellant had not been prejudiced and that he would not exclude the statements on the ground of those breaches. In the light of our conclusions on the breaches of paragraph 10.3, which formed the main subject of the judge's consideration, we do not find it necessary to express an opinion on the effect which should be attributed to the other breaches.

The judge held that on the occasions when the interviewing detectives allowed the appellant to carry on an informal supplementary conversation after the interview notes had been signed they were obliged by paragraph 10.3 to caution him again, and that their failure to do so constituted a breach of paragraph 10.3 on each of those occasions. We agree with that conclusion.

The judge went on to set out in detail a number of factors which should be borne in mind when considering the effect of the breach of paragraph 10.3. For present purposes the most material factors are those which he set out under heads 1 to 4 at pages 41-2 of his judgment:

"1. The defendant was a self-confident and at times arrogant individual who was clearly very much alive to and aware of his rights, is well experienced in interviewing techniques and was familiar with the police procedures.

2. After the signing of the notes if the Crown evidence is factually correct (and on this it will be necessary ultimately to make definitive findings of fact) the defendant initiated the conversation about the Centre Point robbery. His statement was voluntary and the decision to refer to it was entirely self-induced at that stage and not brought about by the result of any police investigation, interrogation or hard questioning.

3. Although the defendant was or had been a suspect in respect of the Centre Point robbery to the knowledge of Detective Constable Doig, in his interview the police had been entirely concentrating their interrogation on the question of the McGoldrick murder. Nothing said or done by the police up to that point had indicated that at that stage they were interested in or expecting the defendant to provide answers in relation to questions in respect of the Centre Point robbery.

4. Once the defendant started to incriminate himself in respect of the Centre Point robbery the police should have cautioned him again before any questions were put to him from the time he started to make comments implicating himself in that robbery. However, because of the defendant's own conduct the police were placed in a difficulty of the defendant's own making. The duty to caution at this stage on a careful analysis of Clause 10 of the Codes can be demonstrated to exist. In the rapid development of events at the time the fact that the police officers concerned did not caution the defendant is understandable."

At pages 46-7 of his judgment the judge then detailed his reasons for declining to exclude the statements:

"? the Court must take account of the fact that the defendant was aware of his rights and would have known that he was under no obligation to say anything which might incriminate him, that he was not someone liable to be overborne by being brow beaten or pressed by police questioning and was not in the course of this or any interview that his own initial conduct had created for the police a dilemma whether they should effectively close the door on further voluntary and unsolicited comments which would assist in the investigation into serious crimes (which would have been the case if he had been cautioned and/or referred to earlier admissions) or whether they should allow matters to proceed in such a way that the defendant was free to talk or not as he felt fit without being under any pressure to do so and thereby provide material which would be put to him at a later stage but before his release. ? Provided that the defendant was given (as he was in this case) an opportunity before the end of his period of detention to challenge the record then any unfairness arising from failure to mention the earlier admissions would lie in the fact that it would have alerted him to the fact that his comments were being noted and he would not have talked unguardedly in the way in which he did. That is not in my view in the circumstances of this case an unfairness which in justice would require the exclusion of the evidence. It is significant that the interviews at which he was formally cautioned about the Centre Point robbery and asked questions the answers to which were being noted he did not give any incriminatory answers. When not cautioned and when notes did not appear to being made he did make self-incriminatory comments. In the circumstances it is possible to infer a pattern of conduct on the part of the defendant that showed that he was very much alive to the police procedures. The conduct of the police was categorised by the defence as being in the nature of a trick or deception of the defendant. Looked at overall, and bearing in mind the dilemma in which the police found themselves as a result of the self-induced conduct of the defendant. I do not consider that their conduct could in all the circumstances be so categorised. As Lord Scarman in R v Sang [1980] AC points out:

'The test of unfairness is not that of a game: it is whether in the light of the considerations to which I have referred the evidence if admitted would undermine the justice of the trial ? the conviction of the guilty is a public interest as is the acquittal of the innocent. In a just society both are needed.'

I anxiously considered the question whether the evidence relating to what was said at the conclusion of the second interview should be excluded in the interests of justice or to avoid unfairness to the accused. In the unusual set of circumstances in this case I consider that the evidence should not be excluded even though there were breaches of the Codes.

I also carefully considered the events in respect of interviews 4,7,11 and 15 and for similar reasons I conclude that the evidence in respect of the allegedly incriminatory remarks made therein should not be excluded even though there were similar breaches of the Codes."

In considering this appeal we bear in mind that we are dealing with the exercise of a trial judge's discretion, which should not be upset unless there are proper grounds for doing so. As MacDermott J pointed out in R v Cowan [1987] NI 338 at 351, the proper approach is to examine the exercise of the judge's discretion and to consider whether he has exercised it within its proper limits. Those limits were articulated by Lowry LCJ in R v O'Halloran [1979] NI 45 at 47:

"An appellate court's approach to the exercise of a judicial discretion must always be to look for indications that the judge misconceived the facts, misstated the law or took into or left out of account something which he ought to have disregarded or regarded, as the case may be."

We think that these principles should be read subject to the qualification that even though none of the criteria may be strictly satisfied, if the appellate court comes to the conclusion that the judge's decision will result in injustice being done, it has both the power and the duty to remedy it. This was so stated by Lord Atkin in Evans v Bartlam [1937] AC 473 at 481 in the context of the review of a judge's discretion to set aside a default judgment in a civil action. It has regularly been stated in criminal appeals that an exercise of discretion will not be upset unless the judge has gone wrong in one of the ways to which we have referred (see the cases referred to in Archbold, 1999 ed, paras 7-99 to 7-100). In respect of such a fundamental matter as the exclusion of statements, however, we consider that this residual ground for reversing the exercise of a judge's discretion exists in appeals from decisions in criminal trials, although it should be exercised with circumspection where none of the conditions specified in R v O'Halloran has been established. In this respect we agree with the approach of the Court of Appeal in R v McCann (1991) 92 Cr App R 239 at 251 in the context of a decision not to discharge a jury.

In approaching the issue we bear in mind the remarks of Saville J in R v Walsh (1990) 91 Cr App R 161 at 153 which seem to us to be apposite, even though the analogue in Northern Ireland of PACE Section 78 does not apply to terrorist trials:

"The main object of section 58 of the Act and indeed of the Codes of Practice is to achieve fairness - to an accused or suspected person so as, among other things, to preserve and protect his legal rights; but also fairness for the Crown and its officers so that again, among other things, there might be reduced the incidence or effectiveness of unfounded allegations of malpractice.

To our minds it follows that if there are significant and substantial breaches of section 58 or the provisions of the Code, then prima facie at least the standards of fairness set by Parliament have not been met. So far as a defendant is concerned, it seems to us also to follow that to admit evidence against him which has been obtained in circumstances where these standards have not been met, cannot but have an adverse effect on the fairness of the proceedings. This does not mean, of course, that in every case of a significant or substantial breach of section 58 or the Code of Practice the evidence concerned will automatically be excluded. Section 78 does not so provide. The task of the court is not merely to consider whether there would be an adverse effect on the fairness of the proceedings, but such an adverse effect that justice requires the evidence to be excluded."

It is quite apparent that the appellant thought that he could speak "off the record" once the formal parts of the interviews were completed. It is notable that he did not on any occasion make admissions about any crime for which he had been cautioned at the commencement of the formal interview. In so thinking he was deluding himself, for any admission made in any circumstances is capable of being proved in evidence. The criminal law has, however, fashioned a shield for the prevention of unfairness to suspects being held in custody, by restricting the admission in evidence of statements made in certain circumstances. One of the principles upon which the restrictive rules are based is that the suspect must be made aware that he is not obliged to say anything but can if he chooses remain silent about the matters in relation to which he is being interviewed. This is to be achieved by the formalised procedure of the administration of cautions phrased in a prescribed manner.

The significant factor which weighs heavily with us is that if the appellant had been cautioned before he commenced to make admissions in the supplementary conversations it is unlikely that he would have made any. The judge so recognised at page 46 of his judgment, but nevertheless decided to admit the statements because the appellant was very familiar with police procedure and the situation in which he made the admissions was self-induced. We do not consider that this is a sufficient reason for declining to exclude the statements. When the court considers that there is a reasonable doubt whether a suspect would have made the statements in question if the provisions of the Code relating to caution had been observed, they should not in our opinion be admitted except perhaps in rare and unusual circumstances. The circumstances of the present case do not in our judgment suffice to justify admission of the statements.

It may be said that the judge misdirected himself in failing to direct himself in this manner. Equally it may be said that to allow his discretionary ruling to admit the statements to stand would result in injustice being done, and on either ground we should be prepared to reverse his ruling. We accordingly conclude that the learned judge should not have admitted the appellant's statements made in the supplementary conversations following Interviews 1, 2, 4, 7, 11 and 15. In respect of counts 3 to 6 his statements formed the only evidence linking him with the commission of the offences and the conviction on those counts must accordingly be quashed. It was submitted on behalf of the Crown that the other evidence in relation to the Aghalee Post Office robbery in 1996, the basis of counts 1 and 2, was sufficient to found a conviction without the appellant's admissions. We are unable to accept that submission, as we take the view that the evidence about the appellant having been seen in the red Audi car at 11.50, some one and a half hours after the robbery, while it gives rise to substantial suspicion, is not sufficient to found a conviction for participation in the robbery.

We accordingly allow the appellant's appeal and quash the conviction on all counts.

IN HER MAJESTY'S COURT OF APPEAL IN NORTHERN IRELAND ________ THE QUEEN -v- CLIFFORD GEORGE McKEOWN ________ J U D G M E N T O F CARSWELL LCJ ________