Jersey Unreported Judgments

[2006]JRC112B

ROYAL COURT

(Samedi Division)

14^th August 2006

Before     :

M.C. St. J. Birt, Esq., Deputy Bailiff (sitting alone).

The Attorney General

-v-

Kenneth McIntyre

J.C. Gollop, Esq., Crown Advocate.

Advocate M. Pallot for the Defendant.

RULING 1

THE DEPUTY BAILIFF:

1.        I have before me an application by Mr Pallot to exclude certain evidence to be given by Customs Officer Turner about the comments made by the Defendant at Jersey Airport on the day in question. 

2.        I must begin by saying that it is quite unacceptable that this point has only been raised now.  We have taken two hours during the time set aside for the trial to hear argument on this.  There was a plea and directions hearing at which no indication by the defence was given of any issue over admissibility.  This is a matter which should have been raised then and should have been dealt with prior to the trial. 

3.        Turning to the merits the comments in respect of which the defence object fall into two categories; first there is a comment allegedly made prior to the drugs being found.  It is said that during the course of initial questioning by the Customs Officer she asked McIntyre if he used controlled drugs to which he allegedly replied that he had taken ecstasy, diazepam and cannabis whilst in India.  This is clearly a potentially damaging comment by him because the issue in the trial would appear to be whether he knew that diazepam was a controlled drug, the importation of which was prohibited, and that comment could be taken as an admission that he knew that it was.

4.        I heard evidence in a 'voire dire'.  In broad outline Customs Officer Turner said that she had questioned McIntyre.  She asked him where he had been, and he said he had been to India.  She then asked him if he had anything to declare.  He said he did not.  She asked him if he had any cigarettes or wine and he said "yes he had".  She then explained what the personal allowance was and he said he had something above that, namely a few more cigarettes in his bag.  It was as a result of that remark that the Customs Officer then asked the question about controlled drugs to which I have referred. He was then taken to the search area where he was asked further questions about who had packed the bags and so forth.  Then there was a search of his baggage at which time the diazepam was found.  Immediately after that the Customs Officer asked the defendant about the diazepam and he said that he had purchased the tablets over the counter in India and that they were for himself.  She then cautioned him.

5.        I would add that, from her note book, the timing of the caution is not entirely clear, but that is the evidence which she gave and that is, therefore, the evidence upon which I will act, no one having suggested that it was wrong.

6.        I am going to deal first with the latter evidence, namely what was said between the finding of the drugs and the administering of the caution; essentially an admission that he had purchased the tablets in India and that they were for his own use.  Initially, Mr Pallot did not object to this, but he now does.

7.        It is clear to me that, on the particular facts of this case, the caution should have been administered at the latest when the drugs were found, because at that stage, to use the language in Code C, the customs officer had evidence which would afford reasonable grounds for suspecting the commission of an offence, namely, the importation of the drugs.

8.        Mr Pallot has argued that the caution should have been administered earlier, once McIntyre admitted that he had got more cigarettes than the allowance.  The customs officer said in evidence that that was not normally regarded as an offence because it was an administrative matter dealt with simply by way of either letting persons go or charging them extra duty.  Furthermore, even if it was an offence, it was not the offence about which the subsequent questioning took place; that was about controlled drugs.  So I do not find there was any requirement on the customs officer to caution the defendant until the drugs were found. 

9.        However, it seems to me there was a breach of paragraph 10.2 of Code C in the failure to caution once the drugs were found.  I therefore have a discretion as to whether I should exclude the comments that were made by the defendant between when the caution should have been administered and when it was.  In my judgment, the comments should be excluded.  They amounted to an admission that the drugs were for himself.  It is, of course, not known for certain at this stage what course this trial will take, but the fact is that he said something which was potentially damaging to himself when he should have been cautioned that he did not need to do so.  In the circumstances I exclude that comment; namely the comment that he had purchased the tablets in India and that they were for his own use.

10.      I come then to the question asked of McIntyre as to whether he had used any controlled drugs, and his answer that he had, including diazepam.  Mr Pallot says that, regardless of whether a caution should have been administered by then, this is a provision which falls within paragraph 12.13 of Code C which provides as follows:

"A written record should also be made of any comments made by a suspected person, including unsolicited comments which are outside the context of an interview but which might be relevant to the offence.  Any such record must be timed and signed by the maker.  Where practicable the person shall be given the opportunity to read that record and to sign it as correct, or to indicate the respects in which he or she considers it inaccurate.  Any refusal to sign should be recorded."

11.      It is accepted by the customs officer that she did not show the defendant the entry in her notebook which deals with this particular aspect, nor did she invite him to sign it in order to indicate that he agreed it.  Indeed it is noteworthy that this particular passage appears out of context in her notebook.  The notes are set out in chronological format; recording the nature of the questions and answers both before and after the discovery of the drugs, but this passage, although referring to something apparently said before the drugs were discovered, appears right at the end.  The officer made it clear that this was something that she realised at the end should have been included and she added it accordingly.  It is not insignificant in my judgment that this comes as an apparent afterthought.

12.      Mr Gollop on the other hand argues that paragraph 12.13 only applies to comments made after a person has been cautioned.  It is to cover the classic instance of a person who is being interviewed going, perhaps, for a toilet break and making an alleged comment during that break in the interview.  It is in those circumstances, he submitted, that clearly a note should be made of what he is alleged to have said and that should be put to the suspect for his confirmation or denial at the earliest moment.  Somewhat surprisingly, neither side has been able to help me in any way with any authority in England as to whether paragraph 12.13, which is an exact copy of the relevant provision in England, applies to comments made before any interviews have begun or should have begun; in other words comments made prior to the need for a caution arising.  I must confess that I find that surprising.  Nevertheless, that is apparently the case. 

13.      There would appear to be one distinction between the Jersey position and the English position in that paragraph 11.4 of the English Code C states this:

"At the beginning of an interview the interviewer after cautioning the suspect shall put to them any significant statement or silence which occurred in the presence and hearing of a police officer or other police staff before the start of the interview and which have not been put to the suspect in the course of a previous interview.  The interviewer shall ask the suspect whether they confirm or deny that earlier statement or silence and if they want to add anything."

As I say that provision does not appear in our Code and Mr Gollop suggests that, if anything is to deal with pre-caution comments, it is that provision rather than the provision with which we are dealing.

14.      In the absence of any authority I think I must revert to first principles.  The whole purpose of Code C was to prevent endless disputes between the police - or customs in this case - and defendants as to what was said in answer to questions.  There was a vice known as 'verballing' where police would occasionally make things up.  Similarly there were endless disputes where, although it had in fact been said, the defendant denied it and because there was no contemporaneous record, much time was spent on arguing about what was or was not said.  The whole purpose of Code C was to eradicate that, either by tape recording or, where comments were made outside the formality of an interview, for the comments to be recorded and put as soon as practicable to the defendant, so that it was known at an early stage whether he admitted what he had said outside the interview or not.

15.      It seems to me that those principles are equally applicable to comments in a situation such as this where, prior to the need for a caution, a defendant makes remarks which later turn out to be damaging.  It is extremely important that it is clear whether he made them or not and that process is assisted if he is given an opportunity at an early stage to confirm them or deny them.  So I think, going back to first principles and applying the underlying policy of Code C, I should rule that the relevant paragraph, namely 12.13, does apply to comments made pre-caution. 

16.      I hold therefore that the customs officer should, at a convenient moment - and perhaps that would have been during the course of the interview - have put to the defendant the contents of her notebook and invited him to sign it as correct or to indicate the respects in which he denied it.  That would have flushed out any point in dispute at an earlier stage.  It is of note that on most of the other points in her notebook, she did summarise them for the defendant during interview, although she did not, unfortunately specifically as to him whether or not he agreed with what was recorded.  She summarised them but then immediately went on to ask another question; nor did she ask the defendant to sign her notebook.

17.      Accordingly, I rule that the practice must be that at interview the contents of any remarks made when the defendant was originally stopped should be put to him during the course of the interview and they therefore need to be recorded in a notebook and the contents of that notebook put to the defendant.  In the circumstances I therefore rule that the relevant comment about his having used diazepam in India was not recorded in compliance with Code C.  It seems to me that that is a highly material matter and it would be unfair to the defendant for the evidence to be admitted when it is in breach of Code C in these particular circumstances.  I therefore rule it inadmissible.

18.      I must emphasise that, in reaching this ruling, I have not been referred to any authority and clearly, if there is in fact authority in England which suggests that I have erred, that is a matter which should be taken into account in any future trial.

No Authorities