Beeres v Crown Prosecution Service (West Midlands) [2014] EWHC 283 (Admin)

[2014] EWHC 283 (Admin)Case No CO/11930/2013
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Birmingham Civil Justice Centre, 33 Bull Street, Birmingham, B4 6DSDate 13/02/2014
Before
MR JUSTICE GREEN
Between
Anita Maureen BeeresAppellantCrown Prosecution Service West MidlandsRespondent
Claire Langevad (instructed by Drew Jones) for AppellantNathan Rasiah (instructed by Crown Prosecution Service) for RespondentHearing Hearing dates: 29 th January 2014
JudgmentMr Justice Green :
[1]This case concerns the circumstances when a confession obtained at a police station should be excluded pursuant to sections 76 and/or 78 of the Police and Criminal Evidence Act 1984 (“PACE 1984”) and Code C thereof which concerns the detention, treatment and questioning of persons by police officers. In particular it concerns the requirement to advise a detainee of their right to legal advice, and of the approach officers should take when interviewing a person who might be sleep deprived and/or drunk. The point has particular resonance on the facts of this case because the decisive evidence relied upon by the prosecution at trial to advance its case was the confession in issue; if it should have been ruled to be inadmissible the prosecution would have foundered. (2). The Facts and the Case Stated[2]The facts may be summarised as follows. On 18th March 2013 the Appellant was convicted at Coventry Magistrates’ Court of an offence of assault by beating on 9th December 2012 of her partner John Leeson, contrary to section 39 Criminal Justice Act 1988. The case of the Crown was that during an argument between the Appellant and Mr Leeson at the Appellant’s home address, the Appellant picked up a baseball bat and struck Mr Leeson unlawfully causing him injury. Mr Leeson did not, however, make a complaint or give evidence in the course of the Appellant’s subsequent trial. The only evidence came from the police officer who attended the scene and arrested the Appellant, and the officers who subsequently interviewed the Appellant at the police station. There was no forensic evidence adduced in the course of the trial and there was, as noted, no statement from the injured party. The sole evidence proposed by the Crown to be put before the Court concerned(i) a confession that the Appellant made when interviewed under caution, and(ii) evidence relating to an alleged admission made when she was arrested.[3]The gist of the Appellant’s case is that when she was interviewed at the police station she was not given proper advice as to the availability of a “duty solicitor”; and that, in any event, the fact of her interview whilst drunk and/or sleep deprived made her confession in the course of the interview unreliable and its admission into evidence unfair. It was argued before the Judge that by virtue of these facts and matters evidence of her admissions ought to be excluded pursuant to sections 76 and/or 78 PACE 1984. The Appellant therefore applied at an early stage in the trial to exclude both(a) the alleged admissions made to police officers at the scene of the incident prior to arrest and(b) the confession made in interview.[4]In order to determine the application the Judge conducted a voir dire. He heard evidence including from the two custody sergeants and the two interviewing officers. He also heard evidence from the Appellant herself. Having heard the evidence he excluded the evidence from the arresting officer of the alleged admission to the assault made at the scene. However, he rejected the application to exclude the confession evidence in interview pursuant to sections 76 and/or 78 PACE 1984.[5]The Appellant was subsequently convicted but applied to the Judge to state a case to the High Court testing the correctness of his decision to admit the confession evidence. The Judge acceded to this application.[6]The Magistrate (DDJ Bennett) has accordingly stated a case for the decision of the High Court. In paragraphs 6(a) and (d) of the Case the Judge has identified the two main issues and he has set out certain questions in relation to those issues. I set out paragraph 6 in full below:
“6 – The application to exclude the evidence of the interview was based on alleged breaches of the Code of Practice, Code C, governing detention and interview of suspects. (a)(i) It was submitted that the “right to legal advice.” contained in Code C:3:1 was inappropriately given in accordance with Code C:6:1 and that therefore the interview evidence should be excluded. An agreed transcript of the booking in procedure at the Police Station is attached, together with a copy of an agreed transcript of the start of the appellant’s interview under caution. PS Wilkinson conceded in evidence that he did not make reference to the words “Duty Solicitors Scheme” when giving the appellant her right to legal advice. The case of R v Vernon 1988 CLR445 was cited, but no transcript of the case was provided to the Court. No complaint was made by the appellant in her evidence that she did not understand or appreciate her entitlement to free legal advice. (ii) I determined that there was no breach of Code C:6:1 on the evidence : The appellant had been told - she had the right to legal advice - that advice would be free of charge and “cost nothing” - that the legal advice would be independent of the Police - that the advice could be on the phone or in person - that the right was an ongoing one and could be exercised at any time - the right to legal advice was reiterated in similar detail at the point of interview by the interviewing Officers I decided that the failure to use the expression “Duty Solicitors Scheme” was not fatal to the proper obligation under Code C:6:1 and that the appellant was in a position to properly exercise an informed choice about her entitlement. Was I correct to do so? If not, should the interview have been excluded on the basis? (b) It was secondly submitted that there was a breach of Code C:12:1 in that less than 8 hours continuous rest was permitted after detention at the Police Station had been authorised. The evidence from the custody record was that: - detention was authorised at 04.07 - the interview commenced at 09.55 - fingerprints were taken between 05.26 and 05.42 In evidence, the appellant said that she had consumed 5 pints of lager prior to arrest and maintained she was “quite drunk”
. Her evidence was inconsistent with the CCTV evidence of her being booked into the Police Station (which was viewed) and the observations of the Police Officers. In addition, six hours had elapsed since the appellant’s arrival at the Police Station and her interview. I discounted alcohol as being a significant factor in her fitness to be interviewed. Further, the interview evidence revealed the appellant made coherent, appropriate and logical answers to question put and there was no evidence that her understanding of the interview process was compromised. As to Code C:12:2, the 8 hour rest period is said to be allowed “in any period of 24 hours”. This appellant had only been in custody for some six hours at the point of interview. Of that time, the custody record showed a maximum period of continuous rest of just under three hours. I took the view that consistent with the Police’s duty to investigate expeditiously, they were entitled to interview when they did and that the right to eight hours uninterrupted rest did not apply in these circumstances, given the limited period during which the appellant was detained. Even if that were incorrect, it seemed to me that the exception at C:12:2 (a) ii applied, in that not interrupting the appellant would delay unnecessarily her release from custody. Was I correct to so find? If not, should the interview have been excluded on this basis?” (a)(i) It was submitted that the “right to legal advice.” contained in Code C:3:1 was inappropriately given in accordance with Code C:6:1 and that therefore the interview evidence should be excluded. An agreed transcript of the booking in procedure at the Police Station is attached, together with a copy of an agreed transcript of the start of the appellant’s interview under caution. PS Wilkinson conceded in evidence that he did not make reference to the words “Duty Solicitors Scheme” when giving the appellant her right to legal advice. The case of R v Vernon 1988 CLR445 was cited, but no transcript of the case was provided to the Court. No complaint was made by the appellant in her evidence that she did not understand or appreciate her entitlement to free legal advice. (ii) I determined that there was no breach of Code C:6:1 on the evidence : The appellant had been told - she had the right to legal advice - that advice would be free of charge and “cost nothing” - that the legal advice would be independent of the Police - that the advice could be on the phone or in person - that the right was an ongoing one and could be exercised at any time - the right to legal advice was reiterated in similar detail at the point of interview by the interviewing Officers I decided that the failure to use the expression “Duty Solicitors Scheme” was not fatal to the proper obligation under Code C:6:1 and that the appellant was in a position to properly exercise an informed choice about her entitlement. Was I correct to do so? If not, should the interview have been excluded on the basis? (b) It was secondly submitted that there was a breach of Code C:12:1 in that less than 8 hours continuous rest was permitted after detention at the Police Station had been authorised. The evidence from the custody record was that: - detention was authorised at 04.07 - the interview commenced at 09.55 - fingerprints were taken between 05.26 and 05.42 In evidence, the appellant said that she had consumed 5 pints of lager prior to arrest and maintained she was “quite drunk”. Her evidence was inconsistent with the CCTV evidence of her being booked into the Police Station (which was viewed) and the observations of the Police Officers. In addition, six hours had elapsed since the appellant’s arrival at the Police Station and her interview. I discounted alcohol as being a significant factor in her fitness to be interviewed. Further, the interview evidence revealed the appellant made coherent, appropriate and logical answers to question put and there was no evidence that her understanding of the interview process was compromised. As to Code C:12:2, the 8 hour rest period is said to be allowed “in any period of 24 hours”. This appellant had only been in custody for some six hours at the point of interview. Of that time, the custody record showed a maximum period of continuous rest of just under three hours. I took the view that consistent with the Police’s duty to investigate expeditiously, they were entitled to interview when they did and that the right to eight hours uninterrupted rest did not apply in these circumstances, given the limited period during which the appellant was detained. Even if that were incorrect, it seemed to me that the exception at C:12:2 (a) ii applied, in that not interrupting the appellant would delay unnecessarily her release from custody. Was I correct to so find? If not, should the interview have been excluded on this basis?”[7]I propose to deal with the issue of legal advice and intoxication/sleep deprivation separately though I accept that they form part of a composite submission that the Appellant was unfit to be interviewed. If I find one or other grounds to be made out then I will consider whether standing alone that ground is sufficient to justify allowing the appeal. I deal only with the issues referred to in the Case Stated as amplified orally by Ms Langevad for the Appellant. She had not appeared in the Court below and abandoned (rightly) a number of points in the Appellant’s written submissions (which she had not drafted) and to which I make no reference. (3). The Law: Sections 76 and 78 PACE 1984 and the common law[8]Before considering the grounds arising I propose to set out certain propositions of law which are relevant to the assessment of the issues.[9]The Court has wide powers to exclude confession evidence under sections 76 and 78 PACE 1984 and under common law (as to which see e.g. per Lord Griffiths in Scott v R [1989] AC 1242 at 1256 (PC)). Section 76 focuses upon the reliability of a confession by virtue of the facts leading up to its making. It has a particular structure to it involving a series of pre-conditions and changes to the burden and standard of proof. However, irrespective of whether the conditions in the section are met, a Court will also examine the facts to see whether admission of a confession is “fair” under section 78 PACE and common law. Section 76 PACE 1984, in its material part, provides that: “(1) In any proceedings a confession made by an accused person may be given in evidence against him insofar as it is relevant to any matter in issue in proceedings and is not excluded by the Court in pursuance of this section. (2) If, in any proceedings where the prosecution proposes to give in evidence a confession made by an accused person, it is represented to the court that the confession was or may have been obtained –(a) … or(b) in consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in consequence thereof, The Court shall not allow the confession to be given in evidence against him except insofar as the prosecution proves to the Court beyond reasonable doubt that the confession was not obtained as aforesaid”. (b) in consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in consequence thereof,[10]Section 76 PACE has been considered upon many occasions by the Courts. I set out below a summary of the principal points of law of particular relevance to the present case: i) A confession is, prima facie, admissible if “relevant” to a matter in issue in the proceedings. In the present case the confession was the only evidence relied upon by the Crown in order to found the conviction. The earlier admission (at the scene of the incident and upon arrest) having been excluded, had no confession been made in the course of the police interview the CPS would have had no material upon which to mount any prosecution at all. It seems to me that where the confession is the sole evidence relied upon by the Crown a Court will need to be especially vigilant to ensure that it is reliable and/or fair. ii) Under section 76 for the reliability of a confession to be challenged all that is required is a “representation” to the Court that the confession meets the conditions in section 76(2)(b). According to the editors of Archbold (2013) at paragraph 15-331:
“A statement by responsible counsel, upon the basis of documents or a proof of evidence in his possession at the time of speaking, that a confession was or may have been obtained by oppression or in consequence of anything said or done which, in the circumstances at the time, was likely to render it unreliable is a “representation” for the purposes of section 76(2); the comment by Russell LJ in R v Liverpool Juvenile Court, ex p R [1988] QB 1, 86 Cr. App. R. 1 CA, to the effect that “representation” is not the same as and does not include cross-examination was not followed by any consideration of what it did include; and where such a representation was made, the Judge of his own motion (see s.76 (3)) should have required the prosecution to prove it in a voir dire that the confession was not so obtained, even though neither counsel had asked for a voir dire: R v Dhorajiwala [2010] 2 Cr. App. R. 21 CA”
. No issue in the present cases arises as to the adequacy of the “representation” because the Judge treated the representation made as valid and thereafter conducted a voir dire. It seems to me that Parliament did not intend to impose a high burden upon a Defendant seeking to challenge a confession. Provided the representation is not mere assertion and is based upon some credible, more than insignificant or trifling, evidence then the rebuttable presumption against admission of the confession evidence is triggered, i.e. the confession is inadmissible unless the prosecution establishes beyond reasonable doubt that the confession has not been obtained in a way that contravenes section 76. This conclusion is justified by: (a) the importance of the rights of the detainee being protected; and (b) the deliberate and relatively low key use of the word “representation” in Section 76. iii) The representation need not demonstrate that the confession “was” unreliable; all that need be advanced is that the confession “may have been” unreliable. Section 76 is concerned to protect against a risk of unreliability. iv) It follows from (iii) above that the test for the Court is not whether the confession was reliable per se. The Court is concerned not with the intrinsic quality of the confession as evidence but with the manner in which it came into being and as to the risk of it being unreliable. This is evident from section 76(2) which states that a confession may be excluded “notwithstanding that it may be true”. v) The focus of the analysis is the position that pertained at the time of the impugned confession; cf “in the circumstances existing at the time” in section 76. The Court therefore cannot examine the confession in the light of other evidence which might arise in the course of the trial insofar as that evidence does not bear upon the conditions prevailing at the time: See in this regard the criticism by the Divisional Court of a judge who having heard an application at an early point gave reasons much later, after all the evidence was heard, and sought to justify his decision upon the basis of evidence arising in the trial which could not have influenced the decision he had taken earlier: R v Gill et ors [2004] EWCA Crim 3245 at paragraphs [68]-[71]. vi) The words in section 76(2)(b) “anything said or done” include acts and omissions i.e. failures to do something: Gill (ibid) paragraph [68(2)]. The distinction between acts and omissions will in any event frequently be artificial. For example, an officer who inadequately advises a detainee of his or her rights may well be acting culpably because his actions (the commissions) simply did not go far enough (the omission). Indeed, that is the gist of the complaint about legal advice in the present case. In such a case the reliability of the confession is in issue because the “anything said or done” was an incomplete or partial statement or action. vii) Culpability on the part of the police is not a sine qua non to exclusion of a confession: e.g. Gill paragraphs [61], [68(3)]. For example, as in Gill, the police might not at the point in time of the interview actually know that a detainee suffers from some form of mental incapacity. The absence of culpability on the part of the police is not determinative since a confession may prove to be unreliable notwithstanding. Evidence as to unreliability might emerge later (for instance subsequent medical evidence as to incapacity) but it will be relevant evidence because it pertains to the circumstances prevailing at the time of the confession. viii) The assessment under section 76 PACE will take into account whether there has been adherence to the Codes to PACE. A failure to adhere to a requirement in PACE is not mere “rigmarole”. In R v Charles [2009] EWHC 3521 paragraph [10] (Admin) the Court stated:
“These provisions are not a mere rigmarole to be recited like a mantra and then ignored. The provisions of the Police and Criminal Evidence Act and the Code relating to caution, are designed to protect a detainee. They are important protections. They impose significant disciplines upon the police as to how they are to behave. If they can secure a serious conviction in breach of those provisions that is an important matter which undermines the protection of a detainee in the police station” ix) However, not every breach of PACE or the Code will lead to the exclusion of the evidence in consequence thereof: R v Charles (ibid) paragraph [10]; Gill (ibid) paragraph [72]. If there has been a breach the Court will consider whether it was a material breach i.e. whether had the breach not occurred it would have made a difference: Gill (ibid) paragraph [73] and [68(4)]. x) Finally, the position under section 78 PACE 1984 which concerns fairness will not normally differ from that based upon the application to the same facts of section 76 PACE: see Gill paragraph [68(5)] where the Court concluded that on the facts of the case no difference between sections 76 and 78 PACE 1984 arose. Mr Rasiah accepted, however, that section 78 could in principle exert a broader protective sweep than section 76 and therefore that it acted as an override protection for a detainee. He gave by way of example the hypothetical case of a detainee who was woefully deprived of adequate legal advice but in circumstances where it could not be said that an interview without legal representation was “likely to render any confession unreliable”
. He said that section 78 PACE might nonetheless intervene to exclude the confession in order to reflect the fact that section 78 incorporates broader Article 6 (ECHR) type considerations and a Court might reflect the seriousness of the violation in an order excluding the confession. It seems to me that in principle this is correct: section 78 PACE and the common law will enable a Court to examine a case, including one also engaging section 76, from a perspective of overall fairness. Hence in principle a tailpiece to any section 76 application as to reliability will be a “fairness” appraisal. The fact that there may be substantial overlap and that a section 76 analysis might normally indicate the result of a fairness test does not mean that the two tests are always or necessarily identical and that section 76 precludes the operation of section 78 PACE. (4). The right to legal advice[11]I turn now to consider the complaints made by the Appellant. I start by considering the importance of the right in general terms, I then consider the provisions of Code C to PACE on legal advice and I then consider the grounds raised by the Appellant and my consideration of those grounds.

(i) The importance of the right to legal advice

[12]The right to consult a solicitor is recognised as a fundamental right and it is a right that the Courts guard jealously and for good reason. A person in custody awaiting interview or being interviewed is in a vulnerable position. Their very words may be subject both then and later in Court to close scrutiny and inferences adverse to the interviewee drawn. A person being interviewed has a right to remain silent. At worst, if that right is exercised, negative inference may be drawn from that silence. Nonetheless the right to silence may result in no confession being tendered. And in a case such as the present if the Appellant had been advised to give a no comment interview there is the real prospect that no prosecution would have ensued. The decision to answer questions or remain silent is hence a complex one with potentially far reaching consequences. (ii) The provisions of PACE[13]Section 58 PACE 1984 states:
“(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”
. Other parts of section 58 stipulate that requests for legal advice must be recorded in the custody record and that requests should be granted as soon as is practicable. The section limits the circumstances where compliance with a request may be delayed. In R v Samuel [1988] QB 61587 Cr. App. R. 232, CA the right of access to legal advice was described as “one of the most important and fundamental rights of a citizen” (at pp. 630, 245).[14]Code C to PACE 1984 governs detention, treatment and questioning of persons by police officers. It makes provision for the securing of legal advice to detainees. Paragraph 3.1, so far as relevant, provides as follows: “3.1 When a person is brought to a police station under arrest or arrested at the station having gone there voluntarily, the custody officer must make sure the person is told clearly about the following continuing rights which may be exercised at any stage during the period in custody: i) … ii) The right to consult privately with a solicitor and that free independent advice is available…”. i) … ii) The right to consult privately with a solicitor and that free independent advice is available…”.[15]Paragraph 6.1 elaborates making it clear that the right may be exercised face to face, or over the telephone: “Unless Annex B applies, all detainees must be informed that they may at any time consult and communicate privately with a solicitor, whether in person, in writing or by telephone, and that free independent legal advice is available: see paragraph 3.1 Notes 1L, 6B and 6J”.[16]Note 1L states that:
“the custody officer must remind the appropriate adult and detainee about the right to legal advice and record any reason for waiving it in accordance with section 6.”
[17]Note 6B provides, so far as relevant:
“A detainee has a right to free legal advice and to be represented by a solicitor”
. The Note also states:
“when a detainee asks for free legal advice, the Defence Solicitor Call Centre (DSCC) must be informed of the request”
. The Note goes on to explain the circumstances in which the right to free legal advice of a detainee will be limited to telephone advice provided by CDS Direct. It also states the following: “When free advice is not limited to telephone advice, a detainee can ask for free advice from a solicitor they know or if they do not know a solicitor or the solicitor they know cannot be contacted, from the Duty Solicitor”.[18]Section 6 also addresses the circumstances when access to legal advice may be delayed, and the circumstances when a juvenile or a person who is mentally disordered or otherwise mentally vulnerable should be assisted in obtaining legal advice from an appropriate adult. It provides in paragraph 6.6 that a detainee who wants legal advice may not be interviewed or continue to be interviewed until they have received such advice save in certain limited circumstances set out.[19]“Solicitor” is defined in the Code (paragraph 6.12) as: “- A solicitor who holds a current practising certificate; - An accredited or probationary representative included on the register of representatives maintained by the Legal Services Commission”.[20]In relation to the requirement to give advice before an interview and a re-interview, paragraph 11.2 provides: “11.2 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”.[21]Paragraph 6.5 describes the two stage process pursuant to which a detainee must, first, be advised of the right to consult a solicitor in person and, secondly, must be advised that in the event that they waive the right to consult a solicitor in person that they nonetheless have the right to seek advice from a solicitor over the telephone. It states: “If the detainee has the right to speak to a solicitor in person but declines to exercise the right the officer should point out that the right includes the right to speak with a solicitor on the telephone. If the detainee continues to waiver this right, or a detainee whose right to free legal advice is limited to telephone advice from the Criminal Defence Service (CDS) Direct…declines to exercise that right, the officer should ask them why and then the reason should be recorded on the custody record or the interview record as appropriate. Reminders of the right to legal advise must be given as in…of this Code…Once it is clear a detainee does not want to speak to a solicitor in person or by telephone they should cease to be asked their reason”. (iii) Appellant’s submissions: The importance of the right means that PACE must be strictly construed / the failure to provide advice in two stages.[22]I turn now to consider the Appellant’s submissions in relation to legal advice. Ms Langevad, for the Appellant, articulated the point in the following way. She accepted that there was no arguable point to be made about the phrase “duty” merely as an adjunct to solicitor (see below). She contended: that the right to legal advice was a fundamental right; that there had been a breach of the Code; that strictness was required in this important area and in particular in this case because the confession was the sole and decisive evidence relied upon; that had the Appellant been properly advised she might have obtained legal advice and in consequence given a “no comment” interview, which would have led to the CPS having no evidence. The breach of the Code identified was the failure to adhere to section 6.5 of Code C viz the failure of the officer to advise the Appellant in stages as to her rights, first, to face to face advice from a solicitor and then, if she had declined that, her right to telephone advice. Further it was said that this two stage process had to be repeated in interview.[23]I do not accept this submission. The Judge found as fact (as recorded in paragraph [6] above), that the legal advice could be by way of the telephone or in person, that it was an ongoing right which could be exercised at any time, that the right to legal advice had been reiterated in similar detail in the course of the interview by the interview officers. I have reviewed the transcript of the booking in procedure (as did the Judge below) and of the introductory parts of the substantive interview. The officers advised the Appellant fully and carefully of her right to advice. In particular she was advised whilst she was being booked in that even if she did not want a solicitor there and then if she wanted one later, when she awoke, she could have one and “…we can sort it out”, i.e. the police would make the necessary arrangements. Before she was interviewed she repeatedly confirmed that she still did not wish to have a solicitor, and that she knew she could have one, free of charge and independent of the police. She specifically confirmed she was happy to proceed without a solicitor. And even after having given this confirmation the officers reiterated to her the ongoing right to such legal advice at any point in time. They said if “…you feel you prefer a solicitor please just let us know and we will turn the tapes off and we sort that out before we carry on”. When the Appellant confirmed her position once again the officer then reiterated saying: “it is important to know if you change your mind at any time it’s fine”.[24]In the light of these findings, both the pith and the substance of the relevant provisions of Code C were complied with. The Appellant had been made comprehensively aware that she could exercise her right either in person or by speaking to a solicitor over the phone. She was aware that the right was an ongoing one and could be exercised at any time. It will have or should have been apparent to her that even if she did not wish to consult a solicitor in person she could, at any point in time, including in the course of the interview, seek the advice of a solicitor over the phone. I accept the submission of Mr Rasiah that for all proper purposes the way in which the officers advised the Appellant of her legal rights was amply sufficient to make clear that she could receive face to face advice or telephone advice at her option. Further I do not read paragraph 11.2 of Code C as requiring the officer to repeat a two stage advice process. Rather, the officer must make clear that the crucial right to advice remains and is a real and available right. In these circumstances there is, in my judgment, nothing in the Appellant’s alleged objection. Accordingly, there was no breach of Code C. But if there was and a (highly) technical breach occurred the decision of the Appellant to give a confession was completely unrelated to the (technical) breach and hence no breach of section 76 arose. Further, there was no possible unfairness arising out of the manner in which the Appellant was interviewed within the context of section 78. (iv) The relevance of the word “duty” as in “duty solicitor”[25]It is suggested in the Case Stated that the Appellant had a further ground namely that the police officer failed to make reference to the words “Duty Solicitor’s Scheme” when advising the Appellant of her right to legal advice. Ms Langevad indicated to me that she did not pursue this point. I will address it briefly since it lies on the face of the Case Stated and it is fair to the DDJ that I should explain why I concur in his reasoning. Counsel in the court below cited and relied upon R v Vernon [1988] CLR 445 albeit as the Judge recorded, no transcript of the case was provided to the Court. This point is, in my judgment, unarguable. It is manifest from section 58 PACE 1984 and from the Code that the right of a detainee is to have access to a solicitor. The adjective “duty” adds nothing to this right. It is merely an indication that the solicitor in question participates in a particular scheme pursuant to which the solicitor makes him or herself available to advise detainees at a police station as part of a rota. It says nothing about the quality of the solicitor or the content or substance of the advice. In R v Vernon (supra) the defendant was arrested for assault upon a neighbour. She was taken to the police station where she signed the custody record requesting a solicitor as soon as was practicable. She nominated a firm of solicitors but due to the late hour (it was after midnight) they were unavailable. She then agreed to be interviewed in the absence of a solicitor and signed the custody record to that effect. She was then interviewed. In the course of cross-examination of the officer in charge of the case it was established that there had been a Duty Solicitor Scheme in operation at this police station at the relevant time but that the defendant had not been informed of the availability of such a solicitor. Further, it was established that she had been informed that if she failed to agree to be interviewed in the absence of her solicitor then the interview would be delayed. Furthermore, it was established that the officer in charge of the case had spoken to the Duty Solicitor on behalf of a co-defendant moments before he started the interview with the defendant and he knew that the Duty Solicitor was on his way to the police station. At the close of the prosecution case defence counsel submitted that the interview of the defendant should be ruled inadmissible at common law and pursuant to section 78 PACE 1984. The Judge conducted a voir dire. Evidence was heard from the custody officer and from the defendant. The Judge then held that as the defendant had never been informed of the existence of the Duty Solicitor scheme or that a solicitor was on the way to the police station her consent to be interviewed without a solicitor had been given under the misapprehension that if she withheld consent she would not be interviewed until the morning. The Judge was satisfied that had the defendant known of the Duty Solicitor scheme and that such a solicitor was on his way to the station she would have withheld her consent to be interviewed in the absence of a solicitor. He held further that there was a duty to inform her of the Duty Solicitor scheme and, in the circumstances, he excluded the interview. This was a case where the officers gave incomplete advice that gave a false and misleading impression. The case emphasises that the Courts will examine the substance of a complaint and the mere recitation to a detainee that a solicitor is available might, depending upon the circumstances, be insufficient. It is of interest that the application to exclude was premised upon sections 78 PACE 1984 and common law fairness, not section 76 reliability. In my view incomplete and partial advice as to the availability of legal advice can also fall within section 76 PACE 1984.[26]This judgment does not in any way assist the Appellant. It serves to underline the right of a detainee to the advice and assistance of a solicitor. It does not, however, ascribe to the words “duty” any particular forensic magic. In the present case the Appellant was advised of her right to consult a solicitor and she steadfastly refused. It is clear from my review of the transcript that the officers acted fairly and properly in the manner in which they advised repeatedly, the Appellant of her rights. Had she decided to exercise her right and seek legal advice then, but only then, would the police have been under a duty to advise her of the availability of particular solicitors, including those who practised as part of the Duty Solicitor scheme. The fundamental difference between the present case and the facts of R v Vernon is that in the latter case the detainee actively sought the assistance of a legal advisor and this right was denied to her by virtue of an omission on the part of the police to inform her of the ready availability of a solicitor.

(v) Conclusion

[27]The long and short of the present case is that the Appellant voluntarily chose to be interviewed without receiving advice and without the assistance of a solicitor during her interview. But critically, she was given clear and repeated offers of advice both in the form of a face to face consultation and in the form of access to telephone advice. I am bound to conclude that the Judge was plainly correct to find “…that the Appellant was in a position to properly exercise an informed choice about her entitlement”. There was no basis upon which the confession can remotely be said to be attributable to any failing by the officers to proffer advice as to the availability of legal advice. There is no possibility that any unfairness arose which would have justified the Judge excluding the confession under section 78.[28]Accordingly the appeal on this ground fails. (5). The effect of sleep deprivation and alcohol consumption[29]I turn now to the question of sleep deprivation and alcohol consumption. The Judge dealt with this in the Case Stated at paragraph 6(b). He treated sleep deprivation and alcohol consumption as two component parts of a single submission, namely that at the point in time at which the Appellant was interviewed she was, and should have been treated as, incapacitated. Accordingly, she should not have been interviewed at that point in time and, it followed, the confession she gave in interview was in fact unreliable under section 76 PACE 1984 or “unfair” under section 78 PACE 1984. I address this by first setting out the grounds of the appeal, then by setting out the relevant principles from PACE, I then consider the implications of the fact that Annex G of Code C requires officers to assess a detainee’s state of wellbeing and to consider all relevant facts, and I then conclude by assessing the grounds in relation to drunkenness and sleep deprivation. This latter part of my judgment includes an assessment of how the High Court (jurisdictionally upon an appeal by way of Case Stated) should consider challenges based upon facts (see paragraph [37] below).

(i) The Appellant’s grounds

[30]The Appellant deals with these points in the application as follows: “10. At 04.02 hrs there is an entry on the custody record which states, “PIC is a raised risk due to alcohol consumption and will be roused until 07.00. At 05.42 hrs Miss Beeres is finally placed in a cell for the night. At 07.03 hrs there is the first recording of Miss Beeres being asleep. At 08.34 hrs she is brought out of her cell to speak about the welfare of her children. She is visited again at 08.07 hrs and 09.21 hrs.11. In total Miss Beeres enjoyed at most 1 hour and 31 minutes sleep between the hours of 07.03 hrs and 08.34 hrs and the maximum total of 2 hours 52 minutes continuous rest between the hours of 05.42 hrs and 08.34 hrs.12. Given this fact, coupled with her high level of intoxication, the custody sergeant should have had regard to paragraph C-2 and considered that an interview would be inappropriate at the time of the morning. Her replies might have been considered unreliable in subsequent court proceedings.13. The defendant’s custody record does not record the level of intoxication, however, Miss Beeres stated in evidence that she had consumed five pints of Carling Black Label lager, and a bottle of wine. It is submitted that intoxication on this scale should have triggered the PACE safeguard outline at paragraph [9] above”.[31]The basis upon which this ground is advanced is, essentially, two-fold. First, she was not given an adequate opportunity to sleep prior to her interview. Secondly, that she was in any event “quite drunk” (this being her evidence during the voir dire, as recorded in the Case Stated). (ii) The relevant provisions of PACE: Annex G to Code C[32]Annex G to Code C of PACE 1984 governs the fitness of detainees to be interviewed. It starts from the elementary and important position that a detainee should not interviewed if not in a physically or mentally fit state to be so questioned. Paragraph 1 states that the Annex contains “general guidance to help police officers and healthcare professionals assess whether a detainee might be at risk in an interview”.[33]Paragraph 2(b) of Annex G states: “A detainee may be at risk in an interview if it is considered that:(a) …(b) Anything the detainee says in the interview about their involvement or suspected involvement in the offence about which they are being interviewed might be considered unreliable in subsequent court proceedings because of their physical or mental state”. (a) … (b) Anything the detainee says in the interview about their involvement or suspected involvement in the offence about which they are being interviewed might be considered unreliable in subsequent court proceedings because of their physical or mental state”.[34]Paragraph 3 provides as follows: “In assessing whether the detainee should be interviewed, the following must be considered:(a) how the detainee’s physical or mental state might affect their ability to understand the nature and purpose of the interview, to comprehend what is being asked and to appreciate the significance of any answers given and make rational decisions about whether they want to say anything;(b) The extent to which the detainee’s replies may be affected by their physical or mental condition rather than representing a rational and accurate explanation of their involvement in the offence;(c) How the nature of the interview, which could include particularly probing questions, might affect the detainee”. (a) how the detainee’s physical or mental state might affect their ability to understand the nature and purpose of the interview, to comprehend what is being asked and to appreciate the significance of any answers given and make rational decisions about whether they want to say anything; (b) The extent to which the detainee’s replies may be affected by their physical or mental condition rather than representing a rational and accurate explanation of their involvement in the offence; (c) How the nature of the interview, which could include particularly probing questions, might affect the detainee”.[35]These provisions appear to be focused primarily on physical or mental disability but could, in my view, equally be used in relation to alcoholic incapacity or sleep deprivation. In principle if a detainee is materially influenced by alcohol then there is an obvious risk that answers given may not be rational or logical. Equally, a detainee who is sleep deprived may be under a similar disability in the course of an interview. It is necessary to remember that the issue here is risk; if the ability of a detainee to perform properly in interview may be impaired for alcohol or sleep related reasons then the evidence that they do give “may” be unreliable. (iii) The importance of officers conducting an assessment and considering all of the facts[36]However, it is also important to recognise that paragraph 3 of Annex G of Code C (set out above in paragraph [34]) ascribes to the officers in issue a judgment call to make. The officers must assess the detainee to determine whether they should be interviewed. In this assessment various factors must be “considered”. The exercise is one of assessment involving a consideration of various identified matters. In other words a judgment call must be made as to the fitness of the detainee to be interviewed. This is a important point in the context of the present case because the Appellant’s argument, boiled down to its bare essentials, is that if one takes certain facts (which it is said are not controversial – see paragraph [30] above) then applying the precautionary risk based test in section 76 to those facts the only lawful outcome is that the officers should have concluded that there was a risk that the confession was unreliable and the Magistrate erred for not so holding; and this holds true even if the officers fully cognisant of those facts nonetheless formed the conclusion that the person detained was in actual fact fit to be interviewed. As a matter of law I do not accept this analysis. Annex G requires the officers to conduct an assessment as described above. For instance a person might well claim to be drunk or exhausted at the police station in order to avoid being interviewed. Alternatively, a person detained at 03.00am might well not have had any sleep but might be totally alert and able to answer questions. If the officers conclude that in actual fact a detainee is perfectly coherent and competent to be interviewed that is a judgment call which the officers are entitled to make.

(v) Alcoholic incapacity

[37]I turn now to consider the Appellant’s specific submissions and start with the issue of alcohol. I have already addressed the point in paragraph [36] that Annex G is not a mechanical process whereby if certain ostensible facts exist or are asserted the officers must thereafter refrain from conducting an interview. I have concluded that the process is a more dynamic one involving a serious judgment to be made about a detainee’s actual condition which links conclusions about physical condition to the person’s ability to be interviewed fairly and reliability. In the present case the Judge formed his own view as to whether, at the relevant time, that assessment and that consideration of various factors by the officers, was a proper one. In this case he held (see paragraph [6] above) that the officers were “entitled to interview when they did”. It is apparent from the facts recorded in the Case Stated that in arriving at this conclusion the Judge formed a clear view as to the Appellant’s mental and physical condition at the time. He rejected the Appellant’s evidence that she was “quite drunk”. In forming his conclusion as to her overall condition he took into account a number of facts and matters. He compared the Appellant’s evidence with that from the CCTV. He noted the observations of the police officers at the time (from whom he received oral evidence during the voir dire). He took into account the number of hours which had elapsed between her arrival at the police station and the interview. He analysed for himself the interview transcript to see whether the Appellant exhibited coherence, appropriateness and logic in the answers she gave. And he took into account other evidence which suggested that the Appellant’s understanding of the interview process was not impaired. These were findings of fact that the Judge was entitled to make in coming to the conclusion that the officers not only acted properly but also came to a proper conclusion (ie one they were “entitled” to arrive at). It is not open to me – certainly in a case such as the present – to go beyond the findings in the absence of clear evidence of legal or jurisdictional errors or some other indication that the Judge acted outside of his legitimate fact finding discretion having heard from all the relevant witnesses. Under section 111 Magistrates Court Act 1980 the jurisdiction of the High Court on a Case Stated is to express an opinion on whether the decision in question is “wrong in law or is in excess of jurisdiction”. Prima facie, this precludes challenges to findings of fact. The High Court on the appeal will treat the facts found below and as stated in the Case to be correct. There may be exceptional circumstances where a fact stated is so utterly perverse or irrational that it might amount to an error of law. For instance the Magistrate might find as fact that the Appellant said in interview “I did it” when in fact the transcript records: “I didn’t do it”. It is not necessary for me in this case to rule on the circumstances when irrational fact-finding counts as an error or law.[38]Ms Langevad did not submit that any facts as found met this threshold. She submitted, in substance, that viewed objectively the following facts and matters, which she suggested should not be controversial, meant that in law sections 76 and/or 78 PACE were met: i) Prior to interview the Appellant had very limited sleep. ii) The interview was in the early hours of the morning. iii) The custody record refers to the Appellant having consumed alcohol. iv) Extra vigilance was required of the Magistrate before admitting the evidence because it was the sole evidence against the Appellant. v) Section 76 was concerned with the risk of unreliability and that risk arose on these facts.[39]The Appellant does not seek to challenge the assessment made by the officers at the time which was that notwithstanding these alleged features, the Appellant was in actual fact (as assessed) perfectly fit to be interviewed; nor does the Appellant challenge the Judge’s assessment of those facts.[40]For the purpose of this appeal I must take as my starting point the Judge’s contrary findings and his assessment of the propriety of the way in which the police assessed the Appellant’s fitness to be interviewed, which he drew from all of the evidence before him, which are summarised at paragraph [36] above. These findings record that there was simply no evidence that the Appellant was in any way drunk or affected by alcohol when she was interviewed and that the officer’s assessment was a proper one. And since nothing in the Appellant’s grounds casts doubt upon these I am bound to accept them. Having accepted them I also find that upon the basis of these findings there was no breach of Annex G of Code C. In essence the Judge formed a proper conclusion about the officer’s assessment of the Appellant’s sobriety in relation to the interview. (vi) Sleep deprivation[41]I turn now to the allegation of sleep deprivation. Specifically with regard to sleep deprivation Code C paragraph 12.2 provides: “Except as below, in any period of 24 hours a detainee must be allowed a continuous period of at least 8 hours for rest, free from questioning, travel or any interruption in connection with the investigation concerned”.[42]Various exceptions to this requirement are also set out in paragraph 12.2. In my view the Judge was correct to conclude that this provision applies to longer term detainees who are detained for longer than 24 hours.[43]The implication of the Appellant’s argument to the contrary is that every overnight detainee must be detained a minimum of 8 hours before interview so that they can rest or sleep. This is, in my view, quite illogical. Paragraph 1.1 of Code C states, as a fundamental principle:
“All persons in custody must be dealt with expeditiously, and released as soon as the need for detention no longer applies”
. This lays down a basic principle which is that the deprivation of an individual’s liberty should be for the shortest possible time period. The Appellant’s submission creates time constraints which artificially delay release. There is, in any event, no prejudice to a detainee in not applying the 8 hours rule. If they are in fact sleep deprived and unable to function in the course of an interview then Annex G will come to their rescue and an officer should not be staging the interview until such time as the detainee is properly rested. And if the officer proceeds regardless a Court can later hear evidence as to reliability or fairness and if necessary exclude the confession evidence upon the basis that the detainee was in fact exhausted at the time and not fit to be interviewed. In the present case the Judge heard evidence and formed the conclusion that the Appellant was coherent, appropriate and logical in interview. If a detainee is fairly assessed as being able to answer questions in a coherent, appropriate and logical manner then the sooner they are interviewed and released the better and the fact that they have not had 8 hours rest (in a cell which for many will not be conducive to rest) preceding interview is not dispositive.[44]The officers assessed the Appellant as perfectly able to answer questions. The Judge, following the voir dire, came to the same conclusion and has explained the factors which led him to that conclusion as set out in paragraphs [6] and [37] above which apply to the appellant’s overall state. There is, accordingly, no error of law or assessment evident in the Judge’s assessment in the present case.

Conclusion

[45]In conclusion the appeal is dismissed. Insofar as it is necessary in view of my reasons above to express an opinion on the questions posed in the Case Stated then I would do so in the following way: i) The Judge was correct to reject the submission that the Appellant had not properly or adequately been informed of her right to legal advice. ii) The Judge was correct to find that the officers were entitled to come to the conclusion that Appellant was in all respects fit to be interviewed. iii) The Judge was correct to find that accordingly the confession evidence of the Appellant was in all respects both reliable and fair and that neither section 76 nor section 78 PACE 1984 applied to exclude the confession.