Law Report: Undercover evidence and confession inadmissible: Regina v Bryce - Court of Appeal (Criminal Division)(Lord Taylor of Gosforth, Lord Chief Justice, Mr Justice Macpherson and Mr Justice Turner), 26 June 1992

Evidence of conversations between a suspect and an undercover police officer, and of a police interview at which cautions had not been given and which were not contemporaneously recorded, should have been excluded at the defendant's trial as having an adverse effect on the fairness of the trial since the possibility of the evidence being concocted had not been eliminated.

The Court of Appeal quashed the appellant's conviction of handling stolen goods.

At the appellant's trial it was submitted that prosecution evidence of two alleged conversations between the appellant and an undercover police officer and of a police interview with the appellant should be excluded.

The first conversation allegedly occurred when the undercover police officer made a telephone call to the appellant's mobile telephone inquiring about a convertible Saab. When the police officer asked how warm it was, the appellant answered: 'It is a couple of days old'. The conversation culminated in an appointment to meet in Smithfield Market.

The second alleged conversation was at Smithfield Market where the appellant arrived in the Saab with a passenger. The undercover police officer said that he asked how long the Saab had been nicked and the appellant replied two to three days.

After the appellant's arrest at Smithfield there was a short tape- recorded interview at the police station, during which the appellant replied 'no comment' to all questions. When the tape was switched off, it was alleged that the appellant said he would tell the officers what happened but he did not want it recorded, and that if it was he would not say anything. According to the officers the appellant then volunteered that he had bought the Saab, valued at pounds 23,000, for pounds 1,800.

The defence submitted that the telephone conversation and conversation at Smithfield should have been, but were not, conducted in accordance with the Police and Criminal Evidence Act 1984 and its Codes of Conduct, and that the police interview after the tape recorder was switched off was a fresh interview requiring a fresh caution which had not been given, and should have been contemporaneously recorded. The judge rejected those submissions and the evidence went before the jury.

The appellant gave evidence that his mobile telephone had been used by another man whom he had driven to Smithfield. The appellant denied the conversation at Smithfield and police interview.

Martin Thomas QC, and Justin Gau (Registrar of Criminal Appeals) for the appellant; Clive Nicholls QC, and David Medhurst (CPS) for the Crown.

LORD TAYLOR CJ, giving the judgment of the court, said that the issue of what evidence could be admitted of conversations between a suspect and an undercover police officer was recently addressed in R v Christou and another (The Independent, 22 May 1992). In rejecting the argument that the code under the 1984 Act applied to such conversations, the court said that it would be wrong for police officers to adopt or use an undercover pose or disguise to enable themselves to ask questions about an offence, uninhibited by the requirements of the code with the effect of circumventing it.

If the undercover police officer had asked a series of questions, such as 'What are you doing selling a motor car like that? What is wrong with it? Is it an import? Has it come from abroad?' that would clearly offend against the caveat stated in Christou.

Although the two questions in the separate conversations did not go as far and there was no extended interrogation, they did go directly to the critical issue of guilty knowledge. They were hotly disputed and there was no contemporary record.

In Christou, the questions from the undercover officers were recorded on tape and on film. The circumstances to be considered in that case in deciding whether the admission of evidence would have an adverse effect on the fairness of the trial and how adverse, were quite different from those in the present case. The film and sound record eliminated any question of concoction. Not so here. The questions asked were direct, the conversation was challenged and the appellant had no means of showing by a neutral, reliable record what was or was not said. The trial judge erred in admitting those answers.

Turning to the interview at the police station, if this interview was correctly admitted, the effect would be to set at nought the requirements of the 1984 Act and the code in regard to interviews. One of the main purposes of the code was to eliminate the possibility of an interview being concocted, or of a true interview being falsely alleged to have been concocted. If it were permissible for an officer simply to assert that, after a properly conducted interview produced a nil return, the suspect confessed off the record and for that confession to be admitted, then the safeguards of the code could readily be by-passed.

There would have to some highly exceptional circumstances, perhaps involving cogent corroboration, before such an interview could be admitted without it having such an adverse effect on the fairness of the trial that it ought to be excluded under section 78. Here the situation was a classic example of that suspicious sequence - a total denial or refusal to comment, followed by an alleged confession, followed in its turn by a refusal to sign the notes and a denial that the confession was made. The alleged interview should have been excluded.

Since the conversations and interview formed a major part of the prosecution case, the irregularities rendered the conviction unsafe and unsatisfactory.

Ying Hui Tan, Barrister