Tietchem, R v [2018] EWCA Crim 880

Case No 2017/00073/B1

[2018] EWCA Crim 880

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Venue Royal Courts of Justice

Date Tuesday, 17 April 2018

Strand

London, WC2A 2LL

B e f o r e:

THE PRESIDENT OF QUEEN'S BENCH DIVISION

SIR BRIAN LEVESON

MR JUSTICE TURNER

MRS JUSTICE MAY DBE

Between

R E G I N ACrown

Between

BLANDINE TIETCHEM

Computer Aided Transcript of the Stenograph Notes of Epiq Europe Ltd 165 Street London EC4A 2DY, Tel No: 020 7404 1400 Email: rcj@epiqglobal.co.uk (Official Shorthand Writers to the Court)

Non-Counsel Application

J U D G M E N T

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[1]MR JUSTICE TURNER: On 7th December 2016, in the Crown Court at Leicester, the applicant was convicted, after trial, of assisting unlawful immigration to a Member State of the European Union. She was sentenced to a term of imprisonment of two years, which she has since served. This is a renewed application for leave to appeal against conviction following refusal by the single judge.

[2]The circumstances of the case can be summarised briefly. The case against the applicant, a Cameroon national, was that she had entered into a sham marriage with one Sandor Radi, an Hungarian national, in 2009, in order falsely to claim to be entitled to reside in the United Kingdom. The prosecution alleged that the applicant and her four co-defendants were participants in an illegal scheme, under which those wishing to obtain leave to reside in the United Kingdom were provided with forged documents and bogus spouses for this purpose.

[3]The reality was that the applicant had never married Radi, but was in fact in a relationship with a co-defendant, one Wilson Odume, by whom she had had a child. The applicant, in due course, applied for residence on behalf of the child. In reality, Radi had a family of his own, comprising a partner and a young daughter. When the police arrived at Radi's address to arrest him, they discovered that he and his family had fled back to Hungary.

[4]The defence was that the applicant's marriage to Radi was genuine. They were married in 2009, but the relationship deteriorated because of his work commitments. The applicant found fleeting solace in the arms and bed of Mr Odume, following which she conceived his child.

[5]The grounds of appeal focus upon the decision of the judge, in the face of opposition from the defence, to allow certain evidence of what the applicant said upon her arrest to go before the jury. The source of this evidence was one Jane Cochrane, an immigration officer, who attended at the applicant's address on the occasion of her arrest on 11th February 2015. In her witness statement, Miss Cochrane recorded that the applicant took a long time to answer the door, and when asked about this she said:

"We took so long to answer the door as we were hiding our phones, as you took them last time."

She then went on to record that the applicant later remarked:

[6]"I have only done this to make things better." The defence objected to the admissibility of this evidence.

[7]In respect of the first statement, complaint is made that the question and answer constituted an interview, which should have taken place in a formal setting and subject to all of the relevant safeguards provided under Code C of the Code of Practice for the detention, treatment and questioning of persons by police officers.

[8]In respect of the second statement, it is contended that it amounted to a confession, which ought to have been excluded pursuant to section 76(2)(b) of the Police and Criminal Evidence Act 1984.

[9]Finally, in respect of both statements, it was asserted that the judge wrongly declined to exclude them under the provisions of 78 of the 1984 Act.

[10]In refusing leave to appeal, the single

judge observed:

"The judge's decision to admit the disputed confession and 'verbals' cannot properly be impugned. It was made after full written and oral submissions on both sides. He had the relevant sections of the Code of Practice (and asserted breaches) well in mind, together with the terms of section 76 and 78 of the Police and Criminal Evidence Act 1984. The question of reliability was directly placed before him. He was entitled to find that the first utterance was a spontaneous remark - however the prosecution put its case and even if it was given in the context of a response to a question from the immigration officer (as to why it had taken so long to open the door). Even if it was not a spontaneous remark, the evidence could have been admitted properly on the same basis as the second remark. As to this, taken as a confession, the judge proceeded (in the applicant's favour) on the basis that there were breaches of Code C but that the evidence could nevertheless be fairly admitted. Among other things, whilst there was no contemporaneous note, the statement containing the evidence from the relevant immigration officer, made the day following arrest, stated in terms that it was made whilst events were still fresh in her mind. It clearly could be reliable evidence, a matter ultimately for the jury. The judge was entitled to take into account the context of the highly charged and difficult circumstances immediately presenting to the immigration officer, who said that she did not make any notes at the address because of the situation and then only returned to her office at 7 pm after a 15-hour day. It cannot be said that the judge was wrong to reach the decision that he did including in the circumstances, for example, where the applicant made 'no comment' in police interview (having provided a prepared statement). The evidence was then admitted. The breaches were then put fully to the immigration officer, who then accepted them. She was cross-examined fully before the jury, with the suggestion being made that she had concocted the disputed statements due to her frustration of the applicant's 'no comment' interview. The judge then gave full and accurate legal directions as to how to approach the disputed statements, and no criticism is made of them. There was a substantial and coherent case against the applicant. The conviction cannot be said to be unsafe."

[11]We agree with the observations of the single judge and, for the reasons she gave, conclude that there is no merit in this renewed application, which is therefore refused. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. 165 Fleet Street, London EC4A 2DY Tel No: 020 7404 1400 Email: rcj@epiqglobal.co.uk