ISSUE 5 2008 - Sweet & Maxwell

Crim. L.R. Code C of Codes of Practice to PACE 383
Case and Comment
Editor: Professor David Ormerod, LL.B.
Commentaries by Professor David Ormerod, LL.B., Professor Andrew Ashworth,
Q.C., D.C.L., F.B.A., Andrew J. Roberts, LL.B., M.Phil., N. W. Taylor, LL.B,
M.Phil., B.J. Fitzpatrick, B.A., Neil Kibble, LL.B., LL.M.
Sentencing Cases and Commentaries by D. A. Thomas, Q.C., LL.D.
Code C of Codes of Practice to PACE
Whether requirement for written record to be made of comments made by defendant outside
context of interview where statements made during commission of public order offence
Causing harassment alarm or distress; Exclusionary discretion; PACE codes
of practice; Police interviews; Police records; Statements; Unfair evidence
DPP v Lawrence
Divisional Court: Auld L.J. and Collins J.: July 16, 2007; [2007] EWHC 2154
(Admin).
Police officers stopped a car containing the appellant and others. The officers,
on speaking to them, formed the opinion that they had grounds to search them for
drugs. The appellant allegedly then became aggressive and abusive and repeatedly
told the police officers to ‘‘fuck off’’. 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. It was not clear
whether the appellant said anything when charged with an offence of disorderly
conduct contrary to s.5 of the Public Order Act 1986 other than that he denied the
charge. It was common ground that he was not interviewed before or after being
charged. In due course, as a result of informal advance prosecution disclosure, the
appellant was notified before trial of the police officers’ 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 the appellant’s advocate intended
to apply under s.78 of the Police and Criminal Evidence Act 1984 (PACE) to
exclude evidence from the officers as to what the appellant 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 Pt 11,
which was headed ‘‘Code of practice for the detention, treatment and questioning
of persons’’, and more particularly, para.11.13. Part 11 of Code C, of which
para.11.13 formed a part, was directed at the stage at which a person detained by
the police was interviewed about the offence he was alleged to have committed, or
at the stage when there was or might have been an exchange between such a person
and a police officer about that alleged offence. He argued that there had been a
breach of the ‘‘verbal’’ provisions of Pt 11.13 with the consequence that for the
justices to admit evidence of what the appellant 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 s.78, exclude it. Secondly,
it was maintained that it was unfair of the police not to interview the appellant
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