ISSUE 5 2008 - Sweet & Maxwell

384 Case & Comment [2008]
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 to show him their notebooks
and invite him to adopt the same procedure. The justices were of the opinion
that the appellant’s words, part of his alleged conduct in committing the offence,
were caught by para.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. They accordingly decided they should exclude the evidence as unfair under
s.78. The prosecution offered no evidence and the justices dismissed the charge.
The prosecution appealed by way of case stated. On appeal the prosecution argued
that Pt 11 of Code C applied 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.
Held, allowing the appeal, there was no basis as a matter of interpretation for
extending para.11.13 of Code C beyond its confines of protecting a suspect against
fabrication by a police officer of self-incriminatory statements after the alleged
commission of the offence and not as part of it. The provisions of Code C Pt
11, were not directed at what a suspect was alleged to have said as part of his
conduct constituting the offence, but at what he was 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 were a necessary or possible constituent of the
offence, in whole or in part, would engage Pt 11 of Code C, quite independently
of and before any possibility of an interview, or ‘‘unsolicited comments outside an
interview’’ could arise. Those offences would include the public order offences to
be found in ss.1–5 of the 1986 Act, and those involving the stirring-up of racial
hatred in ss.17–22 of the Act. In the instant case, the respondent had had the
opportunity when charged to contradict what was alleged against him. He had seen
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. The case would be remitted to the justices.
[Reported by Dilys Tausz, Barrister]
Talbir Singh for the claimant.
R. de Mello and D. Bazini for the defendant.
Commentary. As Auld L.J. notes, the purpose of Pt 11 of Code C is to
militate against ‘‘verballing’’, the manufacture of self-incriminating statements and
their attribution to an accused. This purpose is to be realised by the keeping of
appropriate records of a suspect’s relevant actions and words. The significance of
proper record-keeping is illustrated by a variety of decisions, including Keenan [1990]
2 Q.B. 54, Canale [1990] Crim. L.R. 329, and Delaney (1988) 88 Cr. App. R. 338. In
Keenan, Hodgson J. (at 69–70) suggested that where an appropriately serious breach
of the Codes in relation to verballing took place, it would often be appropriate to
exclude the evidence in question. He noted (at 70):
‘‘If the rest of the evidence is strong, then it may make no difference to the
eventual result if [the judge] excludes the evidence. In cases where the rest of the
evidence is weak or non-existent, that is just the situation where the temptation
to do what the provisions are aimed to prevent is greatest, and the protection of
the rules is most needed.’’
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