Senior & Anor, R v

Whether a suspect should have been cautioned under Code C depends on the investigating officer’s knowledge and the facts of the individual case. Routine customs questioning does not create a general exception. Where officers have grounds to suspect travellers of drug smuggling, questions should initially be confined to identifying the relevant baggage. Further questions about involvement require a caution.

A significant breach of Code C does not itself require exclusion under section 78 of the Police and Criminal Evidence Act 1984. The court must assess whether admission would adversely affect the fairness of the proceedings. Straightforward answers which a traveller would expect to give, whose content is undisputed and which cause no material trial disadvantage, may fairly be admitted.

The appellants, a mother and daughter, were convicted at Isleworth Crown Court of being knowingly concerned in the fraudulent evasion of the prohibition on importing cocaine. Each had travelled from the Caribbean with a suitcase containing substantial quantities of cocaine.

Before arresting them, a customs officer asked routine Green Channel questions after he had discovered cocaine in one suitcase and had seen the appellants travelling together. The Recorder admitted the answers, holding that no caution was required and, alternatively, that exclusion was not justified.

On their conviction appeals, the common issue was whether the failure to caution breached Code C and, if so, whether the answers should have been excluded under section 78.

1. Both appeals were dismissed. The court held that the Recorder was wrong to treat the routine character of the questions as decisive. The need for a caution under Code C must be assessed by reference to the information known about the particular traveller. It is not governed by a rule of thumb that suspicion of knowledge cannot arise until questions have been asked about the traveller’s state of mind.

2. On the facts, the officer had seen the appellants travelling together and assisting with a suitcase known to contain cocaine. He should first have asked each appellant to identify her baggage. He should then have cautioned both appellants before asking further questions capable of becoming admissions or apparent inconsistencies at trial. The questioning therefore constituted a significant and substantial breach of Code C.

3. Nevertheless, the breach did not require exclusion under section 78 of the Police and Criminal Evidence Act 1984. The questions were straightforward and were of a kind which travellers, including drug smugglers, would expect at the border. Their content was not disputed, and the absence of a contemporaneous formal record caused no practical unfairness. The appellants could explain their answers fully before the jury.

4. In any event, admitting the answers did not render either conviction unsafe. Dianne Senior’s duress account was unsupported and had not been raised in her advised interview. The evidence also entitled the jury to reject Samantha Senior’s claim that she did not know about the cocaine.

• Court of Appeal (Criminal Division). The appellants’ conviction appeals were dismissed.
• Isleworth Crown Court. Before Mr Recorder Mackie and a jury, both appellants were convicted by a majority verdict of being knowingly concerned in the fraudulent evasion of a prohibition on the importation of cocaine.