No. 2003/05307/B1

Neutral Citation Number: [2004] EWCA Crim 599
IN THE COURT OF APPEAL
CRIMINAL  DIVISION

Royal Courts of Justice
The Strand
London
WC2A 2LL

Wednesday  25  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

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PAUL  JAMES  NOTTLE

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Computer Aided Transcription by
Smith Bernal, 190 Fleet Street, London EC4
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MR R QUAIFE appeared on behalf of THE APPELLANT
MISS EMMA J BIRT appeared on behalf of THE CROWN
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J U D G M E N T

Wednesday 25 February 2004
	LORD JUSTICE BUXTON: I will ask Mr Justice Simon to give the judgment of the court.
	MR JUSTICE SIMON: 
1.	On 29 August 2003, in the Crown Court at Truro, before Mr Recorder Fitton and a jury, the appellant was convicted of four counts of criminal damage. On 17 October he was sentenced to a total of twelve months' imprisonment suspended for two years, and ordered to pay £600 towards the costs of the prosecution. He appeals against those convictions with the leave of the single judge.
2.	The facts giving rise to the charges were these. During the night of 2/3 November 2002, 83 cars were damaged at a garage compound near St Austell, Cornwall, belonging to the Hawkins family. The words “Fuck you Jutin” had been scratched on some of the cars.
3.	The son of the owner was Justin Hawkins. He was a builder who had employed the appellant and given the appellant a cheque for £150 for his wages. For reasons which are obscure, Justin Hawkins had then stopped the cheque.
4.	The appellant had been out in the St Austell area that night. The prosecution case was that he had damaged the cars because of a grievance over the cheque. The case against the appellant was circumstantial. The appellant had a motive for damaging the cars and an opportunity. But the most potent piece of evidence derived from what had emerged when the appellant had attended a police interview at Newquay Police Station on 5 November 2002, accompanied by his solicitor. The interviewing officer said this:
“On four of the cars was some writing. I want you to write it for me. It does not matter the style of the writing, how it is spelt, just make it as you see fit. The words are: 'Fuck you, Justin'.”
	The officer said that he wanted it written out twelve times. The appellant then wrote out the words “Fuck you Jutin” (J-U-T-I-N). He later admitted during the course of the interview that he spelt the word “Justin” J-U-T-I-N.
5.	The handwriting was sent to the forensic science service with a request for an answer to the question whether the writing of the person who had scratched the words “Fuck you Jutin” on the vehicles was the same as the sample of writing given by the appellant in interview. The answer from the forensic science service was that no comparison could be made since the writing on the paint work could not properly be compared with the writing on the paper.
6.	In the light of this answer it was conceded by the prosecution that it would be unfair for the jury to be shown the words written out by the appellant in interview since the jury might have tried to carry out their own comparison with the writing on the cars. However, the prosecution contended that the fact that the appellant had admitted that he had misspelt “Justin” as “Jutin” was strongly probative of the appellant's guilt.
7.	The defence applied to exclude this evidence under section 76(2), or alternatively section 78 of the Police and Criminal Evidence Act 1984. Section 76(2) is in the following terms:
“If in any proceedings where the prosecution proposes go 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) by oppression by the person who made it; 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, notwithstanding that it may be true, was not obtained as aforesaid.”
	Under section 82 of the 1984 Act, “confession” includes “any statement wholly or partly adverse to the person who made it”.
8.	We should also refer in this context to the terms of section 76(4)(b) which provides:
“The fact that a confession is wholly or partly excluded in pursuance of this section shall not affect the admissibility in evidence where the confession is relevant as showing that the accused speaks, writes or expresses himself in a particular way of so much of the confession as is necessary to show that he does.”
	Section 78 contains the power to exclude evidence if the admission of the evidence had such an adverse effect on the fairness of the proceedings that the court ought not to admit it.
9.	Following a voir dire the Recorder rejected the appellant's application. He ruled that:
	(1) When asking the appellant to write out the expression “Fuck you Justin”, the police officer was asking for handwriting samples for the purpose of comparison (page 6H).
	(2) What he got was not what he was expecting (page 7C).
	(3) The failure of the officer to tell the appellant that the name on the car was spelt J-U-T-I-N was not a material deception, if it was a deception at all (page 7E).
	(4) The admission as to the spelling was not obtained in circumstances which rendered it unfair for the prosecution to rely on it (page 7G). The police were not obliged to lay out on paper every piece of evidence they had; the test was whether or not the solicitor was enabled properly to advise his client (page 9A). There was no evidence from the solicitor that he was not able to do so (page 8C).
	(5) The Recorder held that there was no breach of the Police and Criminal Evidence Act 1984 (page 9D), and no trick or unfairness which rendered the evidence otherwise liable to be excluded (page 9G).
10.	Before this court Mr Quaife submits that the Recorder was in error. He submits that the evidence should have been excluded for two reasons: first, because the assurances had been given by the interviewing officer in the terms we have described, that the spelling did not matter; and secondly, because there was a material non-disclosure pre-interview of the fact of the peculiarity of the spelling on the cars.
11.	It is convenient to proceed in stages. In our view, the provisions of section 76 do not assist the appellant. Assuming, as we do, that there was a confession, there was no oppression or anything done which made such confession unreliable. In our view, Miss Birt is correct in her written submissions that the interviewing officer was doing little more than putting the appellant at ease before he provided the sample writing. This is supported by the Recorder's specific finding that the way in which the appellant spelt “Justin” was not what he expected. But even if that were wrong, no assurances were given that what the appellant said in interview would not be used. Putting it in terms of the statutory test, nothing was said or done which was likely in the circumstances existing at the time to render what was said in interview unreliable. It follows that in our view section 76(2)(b) does not apply.
12.	In any event, event if what was said otherwise was to be excluded under section 76, the words could be relied upon to show how the appellant spelt “Justin” under the provisions of section 76(4)(b). This provision embodies the principles stated in argument by Lush J in R v Voisin [1918] 1 KB 531. In that case the defendant was charged with the murder of a woman, part of whose body was found in a parcel together with a handwritten note bearing the legend “Bladie Belgiam”. The defendant, who had not been cautioned, was asked by the police to write the words “Bloody Belgian”, which he did, misspelling them in exactly the same way as the writer of the note. The handwriting was admitted in evidence. The court held that it did not make any difference to the admissibility of the handwriting whether it was written voluntarily or under compulsion.
13.	We turn to consider to effect of section 78 and the wider consideration of the fairness of the proceedings. In our view, this issue was effectively resolved by the Recorder who, having reviewed the relevant material, found that there was no trick or unfairness which led to the oral admission of how the appellant spelt “Justin”. The misspelling on the cars made it inevitable that the interviewing officer would ask the appellant how he spelt “Justin”, even without the handwriting test. When the officer said, “It does not matter how you spell it”, he was plainly not giving a binding assurance that the prosecution would not rely on later evidence given in the course of the interview as to how the appellant spelt the name “Justin”.
14.	The Recorder was also correct, in our view, to find that the police were not obliged to disclose every piece of evidence that they had. The purpose of the pre-interview disclosure derives from the realisation by the police that, without proper disclosure, solicitors cannot properly advise their clients. They voluntarily provide disclosure in order to counter an argument at trial that no adverse inferences should be drawn under section 34 of the Criminal Justice and Public Order Act 1994 from the suspect's failure to answer questions. There are, we understand, no rules or established procedure about this disclosure. The quality and quantity of disclosure will depend on the case. The officer must assess the risk of giving inadequate disclosure, namely that no adverse inferences will be drawn.
15.	In R v Roble [1997] Crim LR 449, Rose LJ, giving the judgment of this court, gave examples of where a solicitor's advice to remain silent may be readily understood. He said:
“Good reason may well arise if, for example, 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.”
16.	In our view, there was no error or unfairness to the appellant in the admission of the evidence given in interview as to how he spelt the name “Justin”. Indeed, it would have been surprising if the evidence had been excluded from consideration by the jury. 
17.	For these reasons the appeal must be dismissed.
18.	LORD JUSTICE BUXTON: The appeal is therefore dismissed. Thank you both for your attendance.