Article by Kabir Sondhi, pupil at 6 Kings Bench Walk
This article aims to explore the practical utility of the Court of Appeal's decision in the recent case of R v. King  EWCA Crim 805 (Pitchford LJ, Cox J & Burnett J, dated 27th April 2012), in which the Court was asked to decide a novel point relating to the admissibility of evidence obtained in breach of the provisions of the Police and Criminal Evidence Act 1984 (PACE).
The appellant appealed on the ground, inter alia, that a covert recording of an incriminating conversation between himself and a co-accused - made after arrest but before conveyance to a police station - should have been excluded on the basis that it had been obtained in breach of the police's duty under section 30 PACE to convey the appellant to a police station as soon as practicable after arrest.
The Court, whilst denying the appeal, acknowledged that a deliberate breach of the duty under section 30 is capable of rendering inadmissible evidence obtained as a result of that breach. The Court held that, although the policy behind section 30 is to bring a suspect within the protection of PACE Code C as soon as practicable, the mere fact of a breach of section 30 does not place evidence obtained during that breach into a separate category where unfairness is presumed - the fairness of its admissibility depends on the factual circumstances in which it was obtained.
Section 30 PACE sets out the following:
"(1) Subsection (1A) applies where a person is, at any place other than a police station -
(a) arrested by a constable for an offence, or
(b) taken into custody by a constable after being arrested for an offence by a person other than a constable.
(1A) The person must be taken by a constable to a police station as soon as practicable after the arrest.
(10) Nothing in subsection (1A) or in section 30A prevents a constable delaying taking a person to a police or releasing him on bail if the condition in subsection (10A) is satisfied.
(10A) The condition is that the presence of the person at a place (other than a police station) is necessary in order to carry out such investigations as it is reasonable to carry out immediately.
(11) Where there is any such delay the reasons for the delay must be recorded when the person first arrives at the police station or (as the case may be) is released on bail."
The appellant was convicted of various offences involving conspiracy to supply Class A and B drugs (as well as related firearms and proceeds of crime offences) after a trial at Canterbury Crown Court. He was sentenced to a total of 18 years imprisonment.
Undercover police had begun to purchase drugs from a supplier (MN) but did not know the identity of the overall source, although they suspected it to be the appellant. A senior officer had issued a written policy decision stating that, should MN visit the travellers' site where the appellant was the senior resident, a tactical team should enter and arrest persons at the scene. It went on to say that, should MN meet with an occupant of the site, "both arrested persons will be placed for a period of time together in a police vehicle with recording facilities... They will be left unsupervised and their presence and any conversation will be recorded." This policy decision was justified by reference to the decision in R v. Bailey and Smith  97 Cr App R 365 (in which covert surveillance of incriminating conversations between prisoners in a cell after arrest and interview was held to be admissible). However, the policy was silent as to the police's duties under section 30 PACE.
When MN visited the appellant, around 150 officers attended the site in convoy. The appellant and MN were arrested at 10:20am. Police detained both men on site for over an hour before placing them in the back of a patrol car fitted with recording equipment. During the six minutes they were together in the car, the appellant and MN were recorded making incriminating comments. They were then separated and the appellant was eventually conveyed to a police station.
At trial, counsel for the appellant applied to have the recorded conversation excluded under section 78 PACE on the basis that it was obtained under a breach of section 30. The trial judge ruled after a voir dire that there was no delay and added that, even if there had been a delay, it was minimal and there was no unfairness in the admission of the evidence.
The Court of Appeal was asked to consider the admissibility of evidence obtained under a breach of section 30 - an issue on which it had not previously been invited to rule.
Counsel for the appellant argued that a deliberate flouting of the duty under section 30 deprived the appellant of the protection of Code C during a period of particular vulnerability and, therefore, the evidence was inadmissible.
The Court held that: "the deliberate flouting of a statutory duty for the purpose only of creating an opportunity for a covert recording may, depending on the circumstances, result in the exclusion of evidence" (paragraph 26). It concluded, however, that in the instant case there was no unfairness in the proceedings occasioned by the admission of the evidence, pointing to the following material considerations:
i) During the period of an hour when the appellant and MN were under arrest and awaiting developments they remained under the supervision of police officers who did not engage them in conversation;
ii) The placement of the appellant and MN in the same police car provided no more than an opportunity for them to speak together in the belief that they were not being overheard;
iii) No trick or subterfuge was practised upon the accused so as to lead them to believe that they must make some response to their arrests; and
iv) The covert recording took place before interview under caution but that fact placed them at no greater disadvantage than if they had been covertly recorded in police custody after interview under caution.
Analysis & Practical Application
R v. King defines a novel category of impropriety in obtaining evidence that may render that evidence inadmissible - namely evidence obtained through a deliberate breach of section 30. However, as with other categories, exclusion on this basis is restricted to circumstances where the admission of the evidence would be unfair considering the circumstances in which it was obtained.
The decision will be of use to practitioners defending in analogous cases where investigating authorities exploit the circumstances of an arrest in order to obtain incriminating evidence. If an investigating authority has purposefully breached section 30 in order to obtain evidence, R v. King can now be used as good authority to persuade a court to exclude it.
On the other side, the case sets boundaries for investigating authorities seeking to obtain such evidence whilst maintaining its admissibility. This will be of significance to authorities dealing with serious and organised crime, where opportunities to obtain incriminating evidence against professionally savvy criminal operators may have to be manufactured.
Beyond that narrow class of cases, the decision in R v. King may have broader utility for practitioners in more everyday cases where evidence is obtained under a deliberate breach of section 30, albeit not a breach set up in order to obtain such evidence. Although, as mentioned above, the Court of Appeal held that a breach of section 30 does not necessarily render evidence unfair, it is submitted that an argument for exclusion under section 78 based on a breach of section 30 is stronger than an equivalent argument that simply cites breaches of individual PACE Code requirements.
The statutory discretion under section 78 to exclude evidence obtained in breach of lawful powers does not rely on the breach having been committed either in bad faith or willfully (see DPP v. McGladrigan  Crim LR 851; R v. Samuel (1988) 87 Cr App R 232; and R v. Foster  Crim LR 821). Where the evidence is obtained in breach of PACE Code requirements, it can be excluded under section 78 where those breaches are "significant and substantial" as a question of fact and degree (see R v. Quinn  Crim LR 581; R v. Walsh (1989) 91 Cr App R 161; and R v. Keenan (1990) 90 Cr App R 1).
It is submitted that there is a strong presumption that a breach of section 30 will "significant and substantial" as it is a "gateway" provision ensuring access to the protections afforded by PACE Code C, including the suspect's right to receive legal advice before making any statement; the suspect's right to be further cautioned; and the suspect's right to be detained in a cell on his own. Arguments for exclusion based on a breach of section 30 can be made more forceful if no record was made under section 30(11) of the reason for the delay in conveyance or if the detained person was not given the opportunity to comment on the covert recording during interview, compounding the original breach.
It is worth considering the practical application of the argument. Consider the following example:
The police receive an emergency call reporting an incident of domestic violence. A unit driving a specialist high-performance vehicle arrives first. Officers enter the address, and talk to the parties involved. They arrest a male suspect and lead him outside, where they lawfully arrest and caution him and place him in the back of their car. The suspect makes no reply to caution, although he is highly agitated and obviously angry that the police have been called. The officers, mindful that they are driving their station's only high-performance vehicle are keen to secure the attendance of a van to convey the suspect to the police station, in order to keep their specialist car out and operational. They therefore decide to wait for the van to arrive, which takes well over an hour. Meanwhile, an officer on foot patrol arrives to assist. He brings the complainant out of the house in order to take a statement. When he does so, the suspect, sitting in the police car with the arresting officers, shouts out of the open window: "Don't you fucking tell them what I done or I'll fuck you up proper next time you fucking bitch." The officers hear this and make a note, on which the prosecution intend to rely at a subsequent trial for common assault by beating.
The officers' notes are incriminating evidence and are of probative value, albeit that they are also prejudicial. It is submitted that this is the type of situation in which a slightly modified R v. King argument may be effective. The police have deliberately breached their duty under section 30 - they chose not to convey the suspect when they could reasonably have been expected to do so. Although the deliberate breach was not effected for the purpose of obtaining the incriminating evidence, the evidence has nonetheless been obtained as a direct result of the breach and should arguably be excluded.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.