Farrell, R. v

Under section 78 of the Police and Criminal Evidence Act 1984, exclusion of an interview is a discretionary assessment for the trial judge. Voluntary pre-interview disclosure does not oblige police to reveal every fact or every allegation known to them. Partial disclosure may fairly convey that a suspect faces a serious case while preserving legitimate investigative questioning. Active deceit of a solicitor to induce admissions is materially different from an omission to disclose the whole case in advance. The appellate court will not interfere where the judge was entitled to find that the police conduct was neither improper nor unfair, and that any alleged loss of an opportunity to give a no comment interview caused no relevant prejudice.

The appellant was convicted of robbery and attempted robbery, and received concurrent ten-year sentences. The prosecution case was circumstantial. It relied on the appellant’s connection with vehicles used in the offences and on false answers given during a police interview.

Before that interview, the police disclosed material concerning an attempted robbery involving a hired Ford Focus, but did not initially disclose false numberplates on the vehicle or their intention to question the appellant about further offences. His solicitor said that full disclosure from the outset would have led her to advise a no comment interview. The trial judge rejected an application to exclude the interview under section 78 of the Police and Criminal Evidence Act 1984. The central issue was whether the limited pre-interview disclosure made admission of the interview unfair.

1. Appeal dismissed. The trial judge was entitled to admit the interview. The Court of Appeal found no error in the exercise of the discretion under section 78 of the Police and Criminal Evidence Act 1984.

2. The question under section 78 was for the trial judge to assess in light of the seriousness of the police conduct, the explanation for it, and whether exclusion was required. The court declined to formulate detailed rules governing pre-interview disclosure.

3. There was no duty to disclose every fact known to the police before questioning. The disclosure already given about the filling-station offence made plain that the appellant faced a serious case. The omission of the false numberplates did not render the disclosure misleading or unfair. It would be wrong to treat the withholding of some evidence before interview as necessarily improper, since that could seriously handicap legitimate police enquiries.

4. The withholding of the other allegations was a deliberate interviewing tactic, but the judge was entitled to find that it was neither impropriety nor trickery. The court distinguished R v Mason 86 Cr App R 349, where police actively deceived a solicitor by asserting false fingerprint evidence and thereby induced admissions. Deliberate active deception of that kind is materially different from failing to disclose the whole intended range of questions in advance.

5. In any event, an inability to give a no comment interview is not necessarily prejudicial, given the potential operation of section 34. The appellant made no admissions. His lies were not induced by, or logically connected with, the non-disclosure complained of. The court therefore would in any event have had difficulty treating the interview as causing relevant prejudice.

6. On the abandoned complaint about withdrawal of counts from the jury, the court reaffirmed that R v Jamieson and McDonagh [2003] EWCA Crim 3755 must be followed. The former guidance thought available from R v Moore (CA, unreported, 20.8.92) should not be cited further.

• Court of Appeal (Criminal Division): dismissed the appeal against conviction and upheld the admission of the police interview.
• Trial court (not named): convicted the appellant of robbery and attempted robbery and sentenced him to concurrent terms of ten years’ imprisonment.