Shabadine Peart v. The Queen (Jamaica)  UKPC 5 (14 February 2006)
Privy Council Appeal No 5 of 2005
Shabadine Peart Appellant
The Queen Respondent
THE COURT OF APPEAL OF
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JUDGMENT OF THE LORDS OF THE JUDICIAL
COMMITTEE OF THE PRIVY COUNCIL
Delivered the 14th February 2006
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Present at the hearing:-
Lord Rodger of Earlsferry
Sir Swinton Thomas
[Delivered by Lord Carswell]
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"It is only in exceptional cases that questions relating to the offence should be put to the accused person after he has been charged or informed that he may be prosecuted. Such questions may be put where they are necessary for the purpose of preventing or minimising harm or loss to some other person or to the public or for clearing up an ambiguity in a previous answer or statement." ...See Practice Note (Judge's Rules)  1 WLR 152, 154.)
The appellant was taken to the CIB office, where Detective Inspector Wright and Detective Woman Corporal Campbell conducted an interview. DI Wright asked him if he had any objection to being asked the questions, to which he said he had not. DI Wright then wrote out a caution, which the appellant signed and dated, then asked him a total of 63 questions. The questions and answers were each recorded in writing by DI Wright and read over to the appellant, who initialled each. The questions and answers were witnessed by Detective Woman Corporal Campbell and certified by DI Wright.
"Q.1. What is your name?
A.1. Shabadine Alphanso Peart.
Q.2. Where do you live?
A.2. Number 135 Torrington Park housing scheme, Kingston 5.
Q.3. With whom do you live?
A.3. My mother Ida Graham.
Q.4. What is your age?
A.4. 18 years.
Q.5. When were you born?
A.5. The 4 April, 1981.
Q.6. Where were you born?
A.6. Kingston Public Hospital.
Q.7. Where was the first place you lived after birth?
A.7. Number 103 Upper West Street, Kingston.
Q.8. Where did you live next?
A.8. At my present address.
Q.9. Where did you attend school?
A.9. Saint Annie's Primary and Secondary School,
Bond Street, Kingston.
Q.10. Did you attend any other school?
A.10. No, sir.
Q.11. What did you do if anything for a living after leaving school?
A.11. I got employment as a porter at the Kingston Public Hospital from that time up until now.
Q.12. Do you work at any other job?
A.12. Yes. Sometime I help Mr. Henry to fix fridge at his shop off Lyndhurst Road. I do not remember the address.
Q.13. Do you know Joycie Boy?
A.13. Yes, mi know him.
Q.14. For how long do you know him?
A.14. Mi know him from youth. Him born and grow a Hannah Town with mi.
Q.15. What does he do for a living?
A.15. Him do sanitation work at K.P.H.
Q.16. Which school did Joycie Boy attended?
A.16. Chetolah Park Primary School.
Q.17. Is he your friend?
A.17. Yes, my best friend.
Q.18. Where does he live?
A.18. Torrington Park. I do not know his lot number.
Q.19. Can he drive or ride a motor cycle?
Q.20. By what other name is he known?
A.20. Delroy Morgan.
Q.21. Do you know the name of his mother?
A.21. Miss Joyce, Joycie.
A.22. Where does she live?
A.22. At the back of Torrington Park scheme with Delroy.
Q.23. When was the last time you saw Delroy Joycie Boy?
A.23. Friday morning in Torrington Park going to work.
Q.24. Did you saw him Friday evening?
Q.25. Where did you saw him?
A.25. Number 2, Lower Ivy Road, Kingston 5.
Q.26. About what time did you saw him?
A.26. About after 7.00 in the evening.
Q.27. Do you have a girlfriend?
A.27. Yes, by the name of Debbie.
Q.28. Where does she live?
A.28. Upper Ivy Road. I don't know the address.
Q.29. Does she live alone?
A.29. Yes, she has her own room.
Q.30. Do you know anybody else that lives in the yard that Debbie lives in?
A.30. Yes, Nadine, just Nadine.
Q.31. Where is this yard situated?
A.31. Just beside a little old lady shop on the left hand going up Ivy Road. There are two other shops on the opposite side of that shop. The house is painted white with iron rusted gate, with rusty zinc. There is only one house in the yard and she lives in the back room.
Q.32. When was the last time you saw Debbie before coming into police custody?
A.32. Deep down in a the Friday evening before the police pick mi up, mi check her up a her yard.
Q.33. Was she alone when you checked her?
Q.34. Have you seen her since?
A.34. Yes, she come look for me in custody at the Cross Road police station, she and Nadine.
Q.35. Did you saw her any time Friday evening or night?
A.35. No, sir.
Q.36. How long now are Nadine and yourself friends?
A.36. About seven months now. She is my main girlfriend.
Q.37. Did you see any of your other girlfriend that Friday?
Q.38. Does Debbie work for a living?
A.38. Yes, sometimes she go to the country and sell slippers and so on.
Q.39. Did she went to the country on Friday last?
Q.40. Do you know Dennis who lives at number 2 Lower Ivy Road?
Q.41 Have you ever visited number two …? Have you ever visited number two Lower Ivy Road?
A.41. No. No.
Q.42. Have you ever walked on Lower Ivy Road?
A.42. Yes, when mi go check Debbie and give her money and go over back.
Q.43. Do you have any friends on Lower Ivy Road?
Q.44. Do you know anyone by the name of Dennis?
A.44. Yes, a big fat man live over the site weh do wood work.
Q.45. Do you know anybody else by the name of Dennis?
Q.46. Do you know a man by the name of Pye Q?
A.46. No, I know no one by that name.
Q.47. Do you know an area don by the name of Pye Q who runs things at Torrington Park where you live?
Q.48. Who employed you at K.P.H.?
A.48. Mr Williams. I do not know where he lives.
Q.49. Do you know Nadine's cousins [Nadine Cousins?]?
Q.50. Do you know Mial?
Q.51. Do you know Claudette Newell?
Q.52. Were you taken to the Admiral Town police station by the police last Friday night, the 14 of May, 1999?
Q.53. Why were you taken there?
A.53. A don't know. Dem just see mi and mi girlfriend sit down, way down Lower Ivy Road on a stone.
Q.54. Did you saw a woman making a complaint against you at the Admiral Town police station?
Q.55. Do you know that woman?
A.55. No, the first mi see her.
Q.56. Did you spoke to her?
A.56. No, mi never talk to her.
Q.57. Did you say anything to the police about hitting the lady at the Admiral Town police station that Friday night?
Q.58. Can you drive or ride a motor cycle?
Q.59. Where were you on Friday the 14 May, 1999, between 7.00 pm to 8.00 pm?
A.59. Right which part the police, the Cross Roads police pick mi up on Lower Ivy Road. Before them pick mi up mi see a police car come down there and go weh back and mi also see a TV news van with a brown policeman in it come down deh and drive away. My girlfriend Debbie was with me.
Q.60. Where were you immediately before you visited Debbie that evening?
A.60. I was over the Torrington Park Scheme at the Councillor, Patrick Tucker's bar, talking to him.
Q.61. Did you kill Delroy Parchment?
A.61. No, mi don't know who name so.
Q.62. Do you know who killed him?
A.62. I don't know.
Q.63. Do you know why he was killed?
A.63. I don't know him."
"Anything, any other evidence I can get, evidence cannot be too much as far as I am concerned."
He agreed that he had not said at the committal proceedings that the appellant had asked to speak to him. When he was asked why he had asked questions instead of letting the appellant tell his story, the following exchange took place (Record 2/63-4):
"A. In his own – in his best interest and in the interest of justice it is always best for me to do what is necessary.
Q. You agree that his Question and Answer form is not the most usual way to take a confession statement, the narrative is the common form usually, you agree with that?
A. Yes, madam.
Q. Okay. And you agree that it is usually when there are issues arising out of the narrative that you go on to the Question and Answer, you agree?
A. Yes, yes.
Q. What made this case so different then?
A. Perhaps it is my practice, how I do things."
DI Wright stated in cross-examination in the main trial (Record 2/316-8) that the appellant had started to talk to him in the interview, then when he had heard enough he commenced to ask him questions. The appellant himself said in evidence in the main trial (Record 3/32-3) that before the questions and answers he gave the inspector information about his girlfriends Tavon and Debbie and about their friend Nadine.
"I still have residual power to say, notwithstanding the finding that voluntariness prevailed throughout the entire session, I should still exclude it. I do not think that I will do so on this occasion, and I rule that the questions and answers are admissible in evidence."
"However, even if the circumstances were not exceptional the judge's discretion to admit the statement in the interest of justice should not be disturbed. The Judges' Rules are not rules of law but rules of practice for the guidance of the police. A statement made not in accordance with the Rules, is not in law inadmissible if it is a voluntary statement. However, the court may in the exercise of its discretion refuse to admit a statement if the court finds that it was made in breach of the rules.
The learned judge after hearing full submissions from counsel ruled in favour of admitting the document containing the questions and answers. The document does not contain a confession. In fact most of the answers were innocuous. Some of the questions relate to another man. It is fair to say that the relevance of the statements to the prosecution is only in so far as they are inconsistent with the defence evidence.
In my view it cannot be said that the learned judge acted unreasonably in deciding to admit the questions and answers. There was no miscarriage of justice arising from the technical breach of Rule 3 of the Judges' Rules."
"Neither Judge, magistrate, nor juryman can interrogate an accused person … Much less then ought a constable to do so."
The Judges' Rules were first published in 1912 in order to give guidance to police forces concerning the procedure which they should adopt and which would be acceptable to the judges, since a degree of diversity had developed between different forces concerning the permissible limits of questioning suspects and judicial attitudes tended to vary. The classic description of the status of the Rules is that contained in the judgment of the court given by AT Lawrence J in R v Voisin  1 KB 531, 539-40:
"In 1912 the judges, at the request of the Home Secretary, drew up some rules as guidance for police officers. These rules have not the force of law; they are administrative directions the observance of which the police authorities should enforce upon their subordinates as tending to the fair administration of justice. It is important that they should do so, for statements obtained from prisoners, contrary to the spirit of these rules, may be rejected as evidence by the judge presiding at the trial."
"The inquiry that is conducted by the police divides itself naturally into two parts which are recognizably different, although it is difficult to say at just what point the first part ends and the second begins. In the earlier part the object of the inquiry is to ascertain the guilty party and in the latter part it is to prove the case against him. The distinction between the two periods is in effect the distinction between suspicion and accusation. The moment at which the suspect becomes the accused marks the change."
Once the suspect has been charged, the efforts of the police interviewers are directed to establishing his guilt. He is under a greater disadvantage at that stage, in that he may feel under greater compulsion to answer questions, notwithstanding a caution. These factors may tend to produce a feeling of pressure upon the accused to speak where he might otherwise have remained silent and to result in unreliable statements from him when seeking to tell exculpatory lies to get himself out of trouble. The most cogent expression of this risk is contained in the dissenting judgment of Pigot CB in R v Johnston (1864) 15 ICLR 60 at 121:
"The danger is that an innocent person, suddenly arrested, and questioned by one having the power to detain or set free, will (when subjected to interrogatories, which may be administered in the mildest or may be administered in the harshest way, and to persons of the strongest and boldest or of the most feeble and nervous natures) make statements not consistent with truth, in order to escape from the pressure of the moment … The process of questioning impresses on the greater part of mankind the belief that silence will be taken as an assent to what the questions imply. The very necessity which that impression suggests, of answering the question in some way, deprives the prisoner of his free agency, and impels him to answer from the fear of the consequences of declining to do so. Daily experience shows that witnesses, having deposed the strict truth, become on a severe or artful cross-examination involved in contradictions and excuses destructive of their credit and of their direct testimony. A prisoner is still more liable to make statements of that character under the pressure of interrogatories urged by the person who holds him in custody; and thus truth, the object of the evidence of admissions so elicited, is defeated by the very method ostensibly used to attain it. This relative position of the parties does not, therefore, tend to truth as the result of the inquiry."
But the basic fundamental reason for the prohibition is the principle that to interrogate the prisoner at this stage tends to be unfair as requiring him possibly to incriminate himself.
"Its acceptance would exalt the Judges' Rules into rules of law. That they do not purport to be, and there is abundant authority for saying that they are nothing of the kind. Their non-observance may, and at times does, lead to the exclusion of an alleged confession; but ultimately all turns on the judge's decision whether, breach or no breach, it has been shown to have been made voluntarily."
"…. there is discretion to exclude evidence which the accused has been induced to produce voluntarily if the method of inducement was unfair."
The same sentiment was expressed by Lord Devlin (The Criminal Prosecution in England, pp 38-9):
"The essence of the thing is that a judge must be satisfied that some unfair or oppressive use has been made of police power. If he is so satisfied, he will reject the evidence notwithstanding that there is no rule which specifically prohibits it; if he is not so satisfied, he will admit the evidence even though there may have been some technical breach of one of the Rules. It must never be forgotten that the Judges' Rules were made for the guidance of the police and not for the circumscription of the judicial power."
(i) The Judges' Rules are administrative directions, not rules of law, but possess considerable importance as embodying the standard of fairness which ought to be observed.
(ii) The judicial power is not limited or circumscribed by the Judges' Rules. A court may allow a prisoner's statement to be admitted notwithstanding a breach of the Judges' Rules; conversely, the court may refuse to admit it even if the terms of the Judges' Rules have been followed.
(iii) If a prisoner has been charged, the Judges' Rules require that he should not be questioned in the absence of exceptional circumstances. The court may nevertheless admit a statement made in response to such questioning, even if there are no exceptional circumstances, if it regards it as right to do so, but would need to be satisfied that it was fair to admit it. The increased vulnerability of the prisoner's position after being charged and the pressure to speak, with the risk of self-incrimination or causing prejudice to his case, militate against admitting such a statement.
(iv) The criterion for admission of a statement is fairness. The voluntary nature of the statement is the major factor in determining fairness. If it is not voluntary, it will not be admitted. If it is voluntary, that constitutes a strong reason in favour of admitting it, notwithstanding a breach of the Judges' Rules; but the court may rule that it would be unfair to do so even if the statement was voluntary.