Hughes v Director of Public Prosecutions [2010] EWHC 515 (Admin)

Case No CO/952/2009[2010] EWHC 515 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT
Date 12 October 2009
Sitting at:
Swansea Civil Justice Centre
Caravella House Quay West Quay Street Swansea Wales SA1 1SP
Before
MR JUSTICE SILBER
Between
L M HUGHESAppellantDIRECTOR OF PUBLIC PROSECUTIONSRespondent
(DAR Transcript ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424Official Shorthand Writers to the Court)
Mr N Sefton appeared for AppellantMs E Nixon appeared for Respondent
Judgment

I Introduction

[1]This is appeal by way of case stated against a decision of the justices for the area of West Glamorgan, sitting in the Swansea Magistrates’ Court on 4 July 2008, by which they convicted Lisa Marie Hughes (“the appellant”), of an offence of the aggravated taking of a motor vehicle without the owner’s consent contrary to the provisions of section 12A of the Theft Act 1988.[2]The information proffered against the appellant contended, first, that on 6 October 2007, she, knowing that a Rover Metro, motorcar index no. K738 AWN, had been taken without the consent of the owner or other lawful authority, allowed herself to be carried in or on the vehicle and, second, that after the vehicle had been unlawfully taken and before it was recovered, damage was caused to the vehicle on account of the way it had been driven. It was said in the information that the additional aggravating feature against the appellant was that damage was caused to property other than the Rover car, namely to a Vauxhall Combo van, to a Ford Fiesta motor car and to a Mercedes Benz motor vehicle.

II The Facts and the Issues

[3]The facts as found by the justices are set out in the case stated and they were that:
“(a) It was accepted that between the hours of 22:15 on the 5th October 2007 and 07:20 on the 6th October 2007 a blue Rover Metro index number K738 AWM was stolen from outside the owners’s address. At approximately 04.20 to 04.30 hrs witnesses awoke to a loud bang. One witness saw from the window a Rover metro abandoned, rolling backwards down the street, several youths were seen running from the vehicle. Another saw the vehicle abandoned with driver and passenger doors wide open. The third witness witnessed a male running away from the motor car, who then returned to pull a female from the vehicle, who was in a dazed state and unsteady on her feet. (b) We noted that at 04.30 hours PC Oliver and PC Harrall attended the scene of the road traffic collision, the Rover Metro’s was positioned in the middle of the carriageway and blocking the road, four vehicles in total were noted by the officer to have suffered extensive damage. While at the scene a member of the public approached the officers, shouting “a girl that was in the car is down the road”, pointing in a particular direction. PC Oliver remained at the scene and PC Harrall alone drove down the street. (c) We noted that the Rover Metro had obvious signs of being stolen, having been described as having the top of the drivers door bent outwards and upon looking into the vehicle the officer could see ignition damage, that the cowling was missing and wires were hanging down. (d) We noted that PC Harrall drove in the direction the witness had indicated and came upon a female who was in an intoxicated state some 300 yards down the road on some waste ground. (e) The officer approached the female and asked just two questions. The first was “Have you been in the metro that has just crashed?”
She was immediately cautioned before the response and the reply was ‘Yes but Umpa was driving.” The officer asked a second question ‘Who is Umpa?’ The reply was ‘Aled Evans he was with his brother Rowan Evans.’ He then arrested her, indicating that the arrest was necessary for the prompt and effective investigation of the offence and further cautioned her. No further questions were asked until her interview at 17.35, the following evening due to intoxication. (f) We were made aware of other evidence during the course of the trial which later may have placed her in or near the vehicle. We noted that while in the custody suite, Aled Evans shouted an unsolicited comment to Lisa Marie Hughes saying ‘You had to get caught you stupid bitch.’ We noted the crime investigator had found a right thumb print belonging to Lisa Hughes with 18 characteristics with ridge flow, on the outside back nearside window.”[4]Before the justices, it was contended by the appellant first that, following a decision to arrest, no questions should be asked of the appellant at the scene as otherwise an interview would have taken place and second that the Code of Practice was breached as an interview had taken. It was also submitted on behalf of the appellant that, because the appellant was intoxicated, the prosecution ought not to be allowed to rely on evidence obtained from responses to the questions which should be excluded under section 78 of the Police and Criminal Evidence Act 1984 (“the 1984 Act”).[5]The respondent prosecution contend, first, that no decision had been made to arrest the appellant at the time the questions were asked and indeed that at the time there was no suspicion that the appellant had committed an offence. Their second submission is that in asking the appellant questions, the officers were acting entirely properly in establishing who that person was. Third, it is contended that there was no adverse issue as to fairness, as no interview had taken place by the officer at the scene. It was further submitted by the prosecution respondent that, even if an interview had taken place, the officer recorded the answer and was of the opinion that the defendant understood the questions and replied accordingly.[6]The approach of the Magistrate was, according to paragraph 6(a) of the Case Stated, that:
“We found as a fact on the evidence presented to us the questions asked by the officer were not an interview as defined by the Codes of Practice and that, in accordance with the terms of Section 78 Police and Criminal Evidence Act, having regard to all the circumstances of the instant case, including the circumstances in which the evidence was obtained, we considered that the admission of the evidence would not, having regard to those circumstances have such an adverse effect on the fairness of the proceedings as to render it inadmissible. We therefore did not exclude the evidence obtained by the officer.”
[7]The issue for the opinion of this court was stated by the Magistrates to be whether:
“(a) the justices were right in law to hold there was no breach of Code C of the Police and Criminal Evidence Act 1984 in that no interview took place.; and (b) if the original interview between the officer and the respondent was an interview which was recorded in a statement, were the justices correct in subsequently admitting that evidence?”

III Issue A

[8]I start by considering the first question, which raises the issue of whether, as the respondent prosecution contend to be the case, the justices were right to hold that there was no breach of Code C, as no interview had taken place. Paragraph 10.1 of Code C provided that a person whom they have grounds to suspect of an offence must be cautioned before any questions about an offence are put to him and before either the suspect’s answers or silence may be given as evidence in a court on a prosecution.[9]Paragraph 11.1A of the Code provides that:
“An interview is the questioning of a person regarding their involvement or suspected involvement in a criminal offence or offences which, under paragraph 10.1, must be carried out under caution.”
[10]Paragraphs 11.7 and 11.11 of the Code provide that an accurate written record must be made at each interview and, unless it is impracticable, the person interviewed must be given the opportunity to read the interview record and to sign it as correct or indicate the respects in which he or she considers it to be inaccurate.[11]The case for the appellant is that the questioning by the police officer of the appellant constituted an interview and so Code C, paragraph 11, had to be complied with. On the factual issues, the thrust of the case for the appellant is that, when the police officers arrived at the scene of the road traffic accident, it was noted that the vehicle suspected to have caused the damage to several other parked vehicles had damage to the top of the door and that there was damage to the ignition with the cowling being missing and wires hanging down. According to the appellant’s counsel, it is noteworthy that when the independent witness said the female had left the vehicle and had gone in a particular direction, Police Constable Harrall drove in that direction which the witness indicated and then came upon the female, who was in an intoxicated state. She is the appellant.[12]On that basis, it is contended on behalf of the appellant that the officer must by that stage have had reasonable grounds to suspect the appellant had committed an offence, which meant that he was entitled to arrest her under section 24(3)(b) of the 1984 Act, especially as the justices found that the Rover car “had obvious signs of being stolen”, which was the suspicion borne out by the officer asking the female if she had been in the Metro that had just crashed.[13]The issue is therefore whether the questioning constituted “an interview”. The appellant contends that it did, but that is disputed by the respondent, who contends that this was merely a conversation.[14]In my view, the answer depends on the width which is to be given to the meaning of the word “interview”, which has to be considered in the context of paragraph 11.1A of Code C which provides that :
“…the questioning of a person regarding their involvement or suspected involvement in a criminal offence or offences, which, under paragraph 10.1, must be carried out under a caution.”
[15]There have been a number of clear judicial statements explaining that the words “interview” should not be too narrowly defined or limited. The approach has been adopted by Bingham LJ, as he then was, giving the judgment of the Court of Appeal Criminal Division in R v Calvin Lloyd Absolam [1989] 88 Cr.App.R 332 at 336, where he said that:
“It is of course plain that this was not in any formal sense a conventional interview, but equally in our judgment it is plain that it was an interview within the purview of the Code, in that it was a series of questions directed by the police to a suspect with a view to obtaining admissions on which proceedings could be founded.”
The significance of that, according to Miss Elaine Nixon, who appears on behalf of the respondent, is that the word “interview” includes the questioning of a suspect for the purpose of obtaining admissions.[16]In R v Matthews [1990] 91 Cr. App R 43, the Court of Appeal Criminal Division gave further guidance on the meaning of the word “interview” in the context of the Code. It is said at page 47 -48 by Morland J, giving the judgment of the court: “In our judgment it is not within the spirit of the Act or the code that 'interview' should be given a restricted meaning. Normally any discussion or talk between a suspect or prisoner and a police officer about an alleged crime will amount to an 'interview', whether instigated by the suspect, or prisoner or a police officer…"[17]It is also noteworthy that in the case of R v Wayne Ward [1994] 98 Cr.App.R 337, it was held that an interview took place when an appellant, who was charged with dangerous driving and taking a motor vehicle without authority, was asked why he was hiding to which he replied “I don’t want to get caught.” He was then arrested for taking a conveyance without authority, to which he said, according to the officers, “Yes, mate, I just lost it”. Although that was disputed, one of the officers then said to the appellant, “Do you mean that you were driving?” and according to the officer said, “Yes mate, I took a (inaudible) driving before.”[18]The critical feature in each of these cases appears to be that the person concerned has to be at least a suspect or somebody who has been charged. Miss Nixon contends that this point is demonstrated by the decision of Gibbs J in R (Darren Sean Ridehalgh) v DPP [2005] EWHC 1100 (Admin) who was dealing with a case where a police officer was noted to be smelling of alcohol and who was then questioned by a senior officers who said to the police officer:
“‘You smell heavily of intoxicating liquor, have you been drinking?’ The appellant answered, ‘Not this morning but I did last night.’ The inspector asked the appellant, ‘Have you driven here today?’ The appellant replied, ‘Yes.’”
[19]There was some further conversation, but the issue was whether that amounted to an interview. The case for the appellant that it was an interview, which required a caution before the appellant was invited to answer the question. That was disputed by the prosecution, and the view of the decision of the Magistrates was that: “The question was merely preliminary and was analogous to the police stopping a driver and asking whether he had been drinking, prior to administering a caution and proceeding to require a breath test." 20. The Magistrates concluded that this did not amount to an interview and Gibbs J said: “…the justices were entitled to reach the opinion that they did for the reason that they gave. A decision about whether there were grounds to suspect in the particular circumstances of a given case is essentially one for the justices. Where police officers question people, in any circumstances in the course of possible investigations relating to the commission of a criminal offence, there inevitably comes a time when it begins to occur to them that an offence might have been committed. They need to make further enquiries to establish whether there are grounds for suspecting the particular person, the potential defendant, of committing the offence. If the stage comes when there are such grounds, then the duty to caution arises. He later concluded that: “…the magistrates were, in my judgment, fully justified in concluding that the conversation on those matters amounted simply to a conversation and not to an interview within the definition of the Code of Practice to which I have referred.[20]It is therefore necessary to see what the approach was of the Magistrates.

(d) :

“…we did consider the Codes of Practice and noted in particular the officer gave credible evidence, that he formed the suspicion after he spoke to her; it was in our opinion reasonable for the officer to ask the initial question as to a possible connection to the offence and the circumstances at that time.”
[21]It was later said that the Magistrates took the view that it was not unreasonable for the officer not to be entirely sure as to the status of the appellant at that particular time. In my view, that constituted a finding that, at the time when the questions were being asked, this was a conversation rather than questioning of a suspect. The fact that the Magistrates considered that the opinion of the officer that the appellant had not been a suspect at the time of the questioning meant that this was not an “interview”. That conclusion, in my view constitutes a sufficient ground for dismissing the appeal and Mr Nicholas Sefton, counsel for the appellant, accepts correctly in my view that if I were to come to that conclusion that would be determinative of this appeal. So the appeal has to be dismissed.

IV Issue B

[22]I still consider that it is appropriate to deal with the second question posed by the Magistrates, which was whether, if the original exchange between the officer and the respondent was an interview, which was recorded in the statement, the justices were then correct in subsequently admitting that evidence. It is said by Mr Sefton that the Magistrates would not have been justified in admitting it by looking at four factors, which have to be considered cumulatively. The first factor on which he relies is the right of the appellant to be reminded of her right to free and to receive independent legal advice prior to the commencement of the interview. He relies on two provisions to support that, the first being section 58 of the Police and Criminal Evidence Act 1984, which provides that:
“(1) A person arrested and held in custody in a police station or other premises shall be entitled, if he so requests, to consult a solicitor privately at any time.”
In my view that provision is of no assistance to the appellant because, at the time of the questioning, she had, first, not been arrested; second, not been held in custody and, third she had not requested to consult a solicitor.[23]The second basis upon which the appellant relies is paragraph 11.2 of Code C, which states that:
“Immediately prior to the commencement or re-commencement of any interview at a police station or other authorised place of detention, the interviewer should remind the suspect of their entitlement to free legal advice and that the interview can be delayed for legal advice to be obtained, unless one of the exceptions in paragraph 6.6 applies. It is the interviewer’s responsibility to make sure all reminders are recorded in the interview record.”
That provision, in my view, does not assist the appellant, because that provision only applies to an interview at a police station or other authorised place of detention. These conversations did not take place there but in the street.[24]The third objection is that the appellant was interviewed after the officer perceived her to be intoxicated, contrary to paragraph 11.18 of Code C. It is correct that this provision deals with vulnerable suspects and it states:
“The following persons may not be interviewed unless an officer of superintendent rank or above considers delay will lead to [certain] consequences…”
[25]The difficulty confronting the appellant about this is the finding of the Magistrates, recorded in paragraph 6(b), of the Case Stated which says of the police officer that:
“He further stated whilst he was aware she was intoxicated she understood his questions and volunteered the answers readily. … We believed the officer was giving us an honest and credible account of events and was not acting in bad faith.”
Further, it was said, in paragraph 16, that the Magistrates did find that the officer had given credible evidence. That is supported to some extent by the answers that she gave, which did not appear to be the statements of someone who was so intoxicated that they did not know what they were doing. To my mind that is the answer to that point, notwithstanding that there was a substantially lengthy period during which, once the appellant was in the police station, she was not asked any questions due to the state of her intoxication.[26]The next point that is taken on behalf of the appellant is that no written record was completed during the interview in accordance with Code C Paragraph 11.7(c), which provides that:
“Any written record must be made and completed during the interview, unless this would not be practicable or would interfere with the conduct of the interview, and must constitute either a verbatim record of what has been said or, failing this, an account of the interview which adequately and accurately summarises it.”
It is then provided at paragraph 11.8 that:
“If a written record is not made during the interview it must be made as soon as practicable after its completion.”
The Magistrates made a finding in respect of that when they said, in paragraph 6(f), that the officer did make a written record and formed the statement as soon as reasonably practicable within a reasonably short period of the arrest. That, again, was a finding open to them, and that shows that this criticism is not justified. account of the interview which adequately and accurately summarises it.”[27]The final point that is made is that there is no evidence that the caution was explained to the appellant, nor that it was understood. There is no suggestion made in the evidence that she did not understand it at all and so no finding on that point.[28]In my view, each of these points made on behalf of the appellant has to be rejected and therefore, even if, contrary to my conclusion, there was an interview in this case, there were no breaches of the Code in any event. I am quite satisfied that, applying section 78, this evidence of the questions should have been admitted.[29]So the Questions in the Case Stated, which were whether:(a) the justices were right in law to hold there was no breach of Code C of the Police and Criminal Evidence Act 1984 in that no interview took place.; and(b) if the original interview between the officer and the respondent was an interview which was recorded in a statement, were the justices correct in subsequently admitting that evidence?”, must be answered in the affirmative and the appeal must be dismissed. MR JUSTICE SILBER: Are there any applications for representation order? MR SEFTON: My Lord, that is correct, yes. MR JUSTICE SILBER: If I have power to make one, I make it. MR SEFTON: I am most grateful. MR JUSTICE SILBER: When we make them normally as a written document… but if there is need for a written document, if it could be sent to me I will happily fill that in. MR SEFTON: My Lord, I have a written document here, but I do not know whether it is the appropriate form to place before you. MR JUSTICE SILBER: No, that is not the one we get. No, we get a specific form to that effect and we sign. It is provided, but if you want to send it to me we will happily sign it. MISS NIXON: My Lord, there is an application on behalf of the respondent for costs in the sum of £750. MR JUSTICE SILBER: That cannot be resisted, can it? MR SEFTON: My Lord, I am in difficulties to resist other than the fact of the limited means of Miss Hughes as is contained within this document. MR JUSTICE SILBER: Well, if she has not got a certificate she is… you are entitled to it. MR SEFTON: Yes, that is the problem with this stage of course. MR JUSTICE SILBER: I mean, I think that must follow, does it not? MISS NIXON: Sorry, my Lord, I am sorry? MR JUSTICE SILBER: Well, she would only be entitled to protection against an order for costs if in fact she was legally aided, as there is not a certificate covering it. MR SEFTON: My Lord, that is why we made the application prior to (inaudible). MR JUSTICE SILBER: Well, I am not sure I can make a representation. The only representation orders that we grant are those where you have got legal assistance and then I can give order for legal representation for counsel in that case, but you need to have a certificate first for that. MR SEFTON: Yes. I need to make enquiries of those who instruct me whether they actually have the certificate. MR JUSTICE SILBER: Well, what I will do is I would give you liberty to apply in writing to me if the position turns out to be incorrect. You can’t resist that, can you? Because if it turns out that they actually had a… were protected, obviously I will reconsider it. MR SEFTON: Very well. MR JUSTICE SILBER: Can I just repeat what I said in the judgment, it has been a great pleasure to do this case. I think it is the first Administrative Court case heard in Swansea. MR SEFTON: Really? MR JUSTICE SILBER: So we shall all go in the Guinness Book of Records for that. Good. Thank you all very much.