Case No. 2002/04095/B4

Neutral Citation Number: [2004] EWCA Crim 597
IN THE COURT OF APPEAL
CRIMINAL  DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL

Date: Thursday  26  February  2004
B e f o r e:

LORD  JUSTICE  BUXTON

MR  JUSTICE  SIMON

and

HIS  HONOUR  JUDGE  TILLING
(Acting as a Judge of the Court of Appeal Criminal Division)

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R E G I N A

- v -

JOHN  JOSEPH  FARRELL

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MR R SPENCER QC appeared on behalf of THE APPELLANT

MR N P MOORE appeared on behalf of THE CROWN
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J U D G M E N T

LORD JUSTICE BUXTON: 
1.	This is an appeal brought by leave of the full court arising out of the conviction of the appellant, Mr John Joseph Farrell, on two counts, one of robbery and one of attempted robbery, in respect of which he was sentenced to concurrent terms of ten years' imprisonment.
2.	The appellant complains of a particular matter that arose in the course of the trial which related to the admissibility of an interview conducted with him by police officers. That matter was explored in detail on a voire dire before the trial judge who had the benefit, as we have had, of detailed and helpful submissions from Mr Robin Spencer QC. 
3.	The appellant originally faced three counts. Count 2 was withdrawn from the jury at the close of the prosecution case. Count 1 concerned the robbery of a sub‑post office in Bracknell by two men in disguise who threatened counter staff in a violent way. It occurred on 24 April 2001. It was alleged that the appellant was one of the two robbers. They went off in a gold Montego motor car. Such a motor car was found abandoned two days after the robbery. Inside the vehicle was a newspaper which, it was alleged, one of the robbers had used to try to conceal the knife that he carried at the time of the offence. That newspaper had the appellant's fingerprints on it, and also the fingerprints of his alleged associate, Gary Dunne. Dunne has never been brought to trial. He has never been located by the police. Keys to the vehicle were handed in to the police by a lady who was the appellant's girlfriend at the time of the offence. She claimed to have found the keys at her flat. 
4.	Count 3 concerned the evening of 13 June 2001 when there was an attempt to rob a filling station at Iver Heath. Threats were made to the employees, but the offence was interrupted by a member of the public. The robbers fled empty‑handed, abandoning as they did a blue Ford Focus motor car. That motor car was eventually discovered to be on false registration plates. “V” plates were on it rather than the “X” plates which legally related to that vehicle. That matter will be of some importance in connection with the complaint made on appeal. The car had been hired by the appellant in March 2001. He had paid a hire firm a substantial sum in respect of it. He was the only person insured to drive it. Inside the vehicle the police discovered a sledgehammer in which pieces of glass were embedded, the appellant's mobile telephone, a set of keys for his flat in London, a pair of his spectacles and a bottle on which was found his DNA. Fingerprints and DNA in respect of other persons were also found in the car. 
5.	It will be seen that the case against the appellant did not depend on identification, but was circumstantial. The prosecution's allegation at trial was that he had committed the robberies in association with Dunne. In particular the prosecution relied on the connection between the appellant and the getaway vehicles, and on certain lies that he had told during his police interview ‑‑ a matter again to which we shall have to return. 
6.	The broad thrust of the defence was that other persons, allegedly prolific robbers in the area, had committed these offences, as it was admitted they had committed other similar offences, and that in respect of count 1 two of these persons had had access to the car; and in respect of count 3, that it was Dunne to whom the appellant had lent the car in the course of that evening. The defence on count 3 was alibi. 
7.	We should briefly mention a matter that was originally before the court. Complaint was made of the judge's failure to withdraw the counts from the jury at the end of the prosecution case, more particularly in relation to count 1, because of the possibility that the facts pointed to a person other than the appellant. The judge did not make such a ruling, but he was pressed in the course of submissions by Mr Spencer with R v Moore (CA, unreported, 20.8.92). It is not necessary to go into the detail of that case or the point that arose in it, because the implications of Moore have been reconsidered (on the initiative of Mr Spencer) in R v Jamieson and McDonagh [2003] EWCA Crim 3755, where the Vice‑President, Rose LJ, made it clear that the guidance that was at one time thought to be available from Moore should not in future be followed. Mr Spencer very properly drew our attention to that authority and thereupon withdrew his complaint about the judge's failure to withdraw the case from the jury. We mention this point only because we consider it valuable to re‑emphasise in another judgment of this court that in this area it is Jamieson and McDonagh that must now be followed. Moore should not be further cited. 
8.	We turn to the matter in issue. The complaint made before us, as it was made before the trial judge, was as to the admission before the jury of an interview conducted by the police with the appellant in the company of his solicitor, a Miss Glover. The interview complained of was conducted by Detective Constable Bradford. In the interview that was sought to be excluded, the appellant made no admission of any of the offences, but he said a number of things which it is now accepted were lies. In particular he claimed in interview to have lent the car to some people called Whitlock and not to Gary Dunne. The prosecution were able to establish that that was not correct; it was not the Whitlocks to whom the car had been lent. 
9.	Those lies were relied on as part of the prosecution case at trial. In due course the judge gave a Lucas direction in respect of them. We cannot know what effect those lies had on the jury's deliberations, but Mr Spencer perfectly fairly says that in a case where circumstantial evidence was all that the prosecution had to go on, which was met by a detailed and circumstantial denial, the appellant's credibility must have weighed importantly with the jury. In those circumstances the fact that he had told lies that merited a Lucas direction might have had more effect than otherwise. 
10.	The complaint is that the record of the interview should not have been admitted and therefore, had that complaint prevailed, the lies would not have been told. The complaint arises in this way. It has become the practice, more particularly since the decision of this court in R v Roble [1997] Crim LR 449, for the police authorities to give, voluntarily and non‑statutorily, written disclosure before they interview a suspect, especially a suspect who has the advantage of representation by a solicitor. This practice has developed in response to the judgment in R v Roble, when this court addressed the questions that arise under section 34 when a “no comment” interview is given on the advice of a solicitor. In that case Rose LJ pointed out that, although there may be many cases where the basis for advice to give a “no comment” interview remains unclear, there may be circumstances where
“The interviewing officer has disclosed to a solicitor little or nothing of the nature of the case against the defendant so that the solicitor cannot usefully advise his client.” 
	It is in order to meet that difficulty, as we understand it, that pre‑interview disclosure is given. However, granted that that practice has grown up, by the same token those advising defendants understandably tend to rely on, or be influenced by, that which is said to them. 
11.	In the present case the interviewing officer indicated to the appellant and to his solicitor that he wished to interview the appellant in respect of the attempt to rob the filling station at Iver Heath (count 3). He did not tell the appellant or the solicitor, as was the case, that in addition the police were interested in questioning the appellant in respect not only of what became counts 1 and 2 on the indictment, but also in respect of a range of other incidents (eleven in all), for most of which the appellant was not prosecuted, and some of which, we are told, have resulted in convictions of other persons. 
12.	Before the interview started, the interviewing officer gave a typed document to the appellant and his solicitor. It first, it set out the circumstances of the offence and continued: 
“(2) The offenders left behind their vehicle a blue Ford Focus registration X96 HTF. 
(3) The vehicle X96 HTF was hired from BTC in Wokingham by John Farrell on the 13th March 2001. 
No other person has been arrested in connection with this offence.” 
	The officer then added in manuscript, before handing the document to Miss Glover: 
“(4) John Farrell's fingerprints found on X96 HTF. 
(5) John Farrell's DNA found in H96 HTF. 
(6) Fingerprints plus DNA from another person found in X96 HTF.” 
	There was then discussion between the officer and Miss Glover, one aspect of which we shall have to return to later, but which so far as the disclosure document was concerned, ended with the officer adding two matters to the list: 
“(7) Money owed for the hire car. 
(8) House search completed; shared flat; stun gun found and a drugs wrap in flat.” 
13.	The interview proceeded. Miss Glover did not give advice that the appellant should not answer the questions. In the course of the interview the appellant gave certain answers that are now accepted to have been untrue. Towards the end of the interview, having pressed the appellant with matters such as his fingerprints and DNA being in the car, the officer then revealed, but only then, that there were false numberplates on the car. Exchanges took place in respect of that, in the course of which there was some discussion, unrecorded, with the solicitor. The appellant denied that he had put false plates on the car. It was suggested to him that his fingerprints might have been on those numberplates. There is no suggestion that the officers in that respect sought to mislead the appellant, who continued to deny that he had anything to do with the plates. When pressed, the appellant perfectly properly said that he wished to consult his solicitor, which he did. It was at that stage, and that stage only, that, in the interview, the interviewing officer announced that he was going to arrest the appellant for an offence of armed robbery in which the Ford Focus car with the false numberplates had been used. That was the robbery that formed the subject of count 2, which the judge withdrew from the jury at half time. 
14.	Limited disclosure was given in respect of that alleged offence. It related merely to the acts that took place. Miss Glover then advised the appellant that he should not say anything else until they had had a consultation, which they did. In due course, after further information had been given to the solicitor and to the appellant about the range of matters about which the police wanted to speak to the appellant, he was advised by the solicitor to make no further comment about any of the matters. He did not do so. 
15.	The complaint that is made in respect of these events is twofold. First, that the police misled the appellant and his solicitor by not revealing before the interview began that there had been false numberplates on the Ford Focus car. Secondly, they were further misled by not being told that further matters were to be investigated. It is said that it was unfair, first of all, to give the limited disclosure in respect of the car; and secondly, unfair for the police not to put all their cards on the table at the beginning so that the solicitor knew the full range of that of which the appellant was to be accused. 
16.	The solicitor's evidence in a voire dire was not that she would necessarily have been influenced in the advice that she gave by the number of charges that the appellant faced, but that if at the start of the process she had been given, as she said she should have been, all the disclosure about all the offences that she was eventually given, she would have advised the appellant from the start to give a “no comment” interview. What she would have said in respect of the numberplates is not clear, but it should be noted, as we have seen, that once the matter of the false plates was raised in the first interview the appellant and/or his solicitor decided not to co‑operate further. 
17.	It was argued that the unfairness involved should cause the trial judge to exclude the interviews, exercising his discretion under section 78 of the Police and Criminal Evidence Act 1984. Evidence was called from the interviewing officer. So far as the decision not to reveal the full range of offences was concerned, his evidence was clear in an exchange with the judge at page 25 of the transcript. The judge said: 
“You were obviously concerned that if you disclosed all the offences that you understood you could question him about, you thought he was involved with, if you disclosed all that right at the start, you might get a no comment interview from the start? 
A. Yes, your Honour. 
Q. That is what you thought, is it not? 
A. It did go through my mind, yes. 
Q. Yes, so that is why you only disclosed the one for which he had been arrested? 
A. Yes.” 
	The officer explained that that is how he had planned his interview. He said that that was effectively his tactic not to reveal that there were further matters. He said that he feared that if he did so, the appellant would answer “no comment” in relation to the robbery at Slough. 
18.	There was a dispute between the officer and the solicitor as to what had been said with regard to further matters. The solicitor's note appeared positively to record that no further questions were going to be asked. The judge found that neither of them could recall the exact words that passed between them. The solicitor understood that the officer had said something like “Nothing more”, when asked by her whether there would be questions about other offences. Mr Bradford's response was more in terms of, “That is all I want to interview him about at this point.” The judge was however satisfied that the appellant and his solicitor thought that there were going to be no questions about further offences. 
19.	Mr Spencer argues before us, as he argued before the judge, that this case, although plainly not as serious as the earlier case, falls within the ambit of the decision of this court in R v Mason 86 Cr App R 349. That was a case where there was deliberate deceit by the police of a solicitor, in that they wrongly and mendaciously told him that there was evidence in the form of fingerprints against his client. That caused his client to make admissions in the interview. This court said that it would not countenance that form of deceit or trickery, and that that was enough to render the admissions inadmissible. 
20.	The question for us, which we understand has not been addressed in detail in any authority that we have been shown, is how far that principle goes. These questions are decided under section 78 of the Police and Criminal Evidence Act. It is very much a matter, in our view, for the trial judge who hears these applications both to form his impression of the seriousness of what has occurred in the light of the explanations and account given of it and, secondly, to form a view of whether that seriousness requires him to act under section 78. It is also important to make clear that in our view it is not this court's function, and we do not intend to do so, to lay down what should and what should not be disclosed in detail before an interview starts. But we find it necessary to make some comments on what occurred in this case.
21.	The trial judge was clear that different issues arose in respect of, first of all, the non‑disclosure of the false plates, and, secondly, the non‑disclosure of the intention to question about other matters. So far as the false plates were concerned, the judge said this at page 4 of his ruling: 
“I find that he [the interviewing officer] did not mention that deliberately but that there was no deception in a pejorative sense so far as that matter is concerned. There is no duty, I find, upon an officer to disclose every fact known to the police before interview. Miss Glover frankly said that she could not say if she had known by disclosure that there was a false plate involved whether she would advise the defendant to make no comment; but, on the other hand, had she known of all the other allegations and further disclosure she would have so advised him. There is no duty on an investigating officer on the one hand to disclose every fact that he knows from the police enquiries. 
I find that in respect of the first interview he had disclosed the salient features about the allegations under count 3 to Miss Glover. That was a fair and reasonable disclosure in my judgment. Shortly after the false plates had been mentioned, indeed the interview was suspended for the defendant to consult with his solicitor. I do not find there is any prejudice to the defendant, and nothing unfair as a result of holding that information about the false plates back.” 
22.	We will return at the end of this judgment to the question of prejudice. We address ourselves at the moment to the question of unfairness and the implications of it. In our view the account of the offence that was set out in the pre‑interview disclosure document made it plain beyond peradventure to the appellant and those advising him that he had a serious case to answer so far as the robbery at Iver Heath was concerned. We do not say that the information concerning the false plates in the context of that robbery added nothing ‑‑ of course it added a good deal ‑‑ but it certainly was not necessary to focus the minds of the appellant and his solicitor on the predicament in which he found himself. Were it to be otherwise it seems to us that judges would be placed in an impossible position of assessing how much pre‑interview disclosure in respect of the offence the police must give. There are two aspects of that. First of all, it is a matter of judgement as to what should be disclosed and what should not; and secondly, we are not prepared to accept that it is necessarily wrong or misleading for the police to hold back some part of their case before they interview a suspect. Taken to its logical conclusion, the suggestion (which was not made by Mr Spencer, but might be the logical conclusion of his argument) that everything the police know has to be disclosed would, in our view, threaten seriously to handicap legitimate police enquiries. We therefore do not accept that it was wrong or unfair for the police to give the information that they gave in respect of the service station, or alternatively not to give the information about the false plates. We respectfully agree with the view the judge took of it, which we have set out. 
23.	The judge then turned to the question, which he accepted was the more serious issue of the further offences. He accepted that it was a tactic not to disclose the other allegations. At page 7 of his ruling, having said that he did not consider that the case was anything like Mason, the judge said:
“The decision not to disclose the other allegations or offences was a tactic. I am satisfied that there was no deliberate misleading of Miss Glover either. He was no doubt content for her to think that there were no other offences. That was part of his tactic.” 
	More generally with regard to that it is perhaps right to set out the judge's further ruling which is criticised before us by Mr Spencer. He said: 
“I am not satisfied on the evidence I have heard that there was a deliberate deception by the officer, but I am satisfied that the defendant and his solicitor were clearly not aware that there were no other offences to be the subject of questions. The officer, it seems to me, because of his knowledge of the case did not want the defendant or his legal representative to know of these further allegations. I am not satisfied, as I say, that he acted with impropriety. I am not satisfied that it would be right to label his behaviour as trickery. I find there may have been a misunderstanding. I accept that the solicitor wrote down nothing more. That suggests clearly her belief was that there was nothing more to be asked about further offences. That must have come from what conversation she had with the officer. Quite as to why she came to that conclusion, I am not satisfied it was by a deliberate deception, but I have to consider at the same time whether or not as a result of what happened there has been prejudice or a breach of the defendant's rights. 
So far as the officer not mentioning more than one offence at the first interview, I do not find there is any prejudice caused to him as a result of answering questions about that one allegation. It may be that he would not have said anything, but had he not said anything, then at his trial there would have to be a direction as to adverse inferences unless there was some other evidence to avoid such a direction being given.” 
24.	Although he does not expressly say so, the judge made a distinction between active lying intending to induce a confession on the one hand, which was what happened in Mason, and omission or failure to state the whole case in advance, which is what happened in this case. Although we would not wish to lay down any binding rule, that seems to us to be a useful guide. Mason is a very strong case in which this court said that the trial judge had only one option open to him in assessing the circumstances. This is not that sort of case. In our judgement, it was here for the trial judge to decide whether the conduct of the officer went beyond that permissible to the extent that he should exercise his discretion under section 78. 
25.	Mr Spencer asks us to disagree with the judge's finding that 
“I am not satisfied, as I say, that he acted with impropriety. I am not satisfied it would be right to label his behaviour as trickery.” 
	Two criticisms are made of that. The first is that the judge placed the burden of proof upon the defendant rather than upon the officer. We do not think he made any such decision. We think that he rightly approached it looking at the facts as a whole and deciding whether he could find (although he used the word “satisfied”) that there had been impropriety ‑‑ a matter that is as much a matter of judgement as it is a matter of fact. We do not consider that it was right to say that the officer acted with impropriety in this case. Other people might have dealt with the matter differently, but he explained that he was anxious to avoid a “no comment” interview and it was not necessary, in our judgement, in the context of interviewing the appellant about the offence at Iver Heath (which was what he was doing) to set out the whole of the further allegations that might be made. Secondly, we agree with the judge that it would not be right to label the officer's behaviour as “trickery”. He kept his counsel, but we do not think that he tricked the solicitor in the sense that appropriately causes that word to be used. But in any event it is not our judgement that matters, but whether the judge fell within the ambit of his discretion and judgement in forming the view that he did of the constable's behaviour. We are not satisfied that he exceeded the proper ambit of his discretion. 
26.	Further complaint is made about what the judge said about the problem of drawing adverse inferences under section 34, should Miss Glover's advice have been that there should be no comment. Mr Spencer suggested to us, as he suggested to the judge, that the introduction of that consideration forced the judge to a difficult or impossible balance between the two sorts of prejudice; prejudice arising from the content of the interview; and prejudice arising from not having given an interview at all. We do not consider that the judge approached the matter in so technical a way. What he said, and in our judgement he was entitled to say, was that it is not possible simply to say, as the argument before him might have been thought to be, that it is necessarily prejudicial to a defendant to be deprived, as the appellant claimed he had been deprived, of the opportunity to give a “no comment” interview. That was no doubt the case before section 34 came into operation; but it certainly does not follow that it is necessarily prejudicial that a person has been deprived of the opportunity of being advised by a solicitor to say nothing. We consider that that is all that the judge was saying. 
27.	As to whether there was prejudice in this case, that point does not in our judgement arise in view of the judge's ruling on the matters with which we have so far dealt. However, the prejudice in this case is not that the appellant made admissions that he would otherwise not have done, much less that he was led into making those admissions, as Mr Mason was, by being untruthfully told that the police had cast-iron evidence against him. What the appellant in this case did in the course of the interview was to tell certain lies -- lies that were not in any way adduced from him by reason of the matter of non‑disclosure of which complaint is now made. The appellant obviously realised on the disclosure given that he faced a very serious case. It may have been that that caused him to lie. Although Mr Spencer rightly said that prejudice is not necessarily to be limited to making admissions, had we formed a view other than that which we do on the matters already dealt with in this judgment, we would at the very least have had a good deal of difficulty in accepting that it was relevant prejudice simply that a person had given an interview when otherwise he might not have, irrespective of what he said; and secondly, in the interview he did not make admissions but told lies -- admittedly lies used against him in the trial -- but not lies that had any logical connection with the non‑disclosure of which complaint is made. 
28.	We have gone into this matter in some detail, not only out of deference to Mr Spencer's extremely helpful submissions, but also because it is an area which we understand this court has not previously entered. But we end by saying again that we do not seek to lay down rules for pre‑interview disclosure. It is very much a matter for the judge to decide whether there has been relevant misleading of a defendant; but judges may wish to consider whether it is appropriate to make such findings in cases which, like this case, do not contain any suggestion by the police made to a solicitor or his client that the case against the defendant is significantly stronger than in fact it is. 
29.	For those reasons, therefore, we dismiss this appeal.