Nottle, R v

An accused person’s admission about how he spells a name is not rendered inadmissible under section 76(2)(b) of the Police and Criminal Evidence Act 1984 merely because an officer, when seeking handwriting, said that the spelling did not matter. The question is whether what was said or done was likely, in the circumstances, to make any ensuing confession unreliable.

Pre-interview disclosure is intended to enable effective legal advice in relation to possible adverse inferences from silence. Its content depends on the case; the police need not disclose every item of evidence. Under section 78, the court must decide whether any actual trick or unfairness made admission unfair. An unexpected misspelling, elicited without an assurance that it would not be used, was admissible.

The appellant was convicted at Truro Crown Court of four counts of criminal damage arising from damage to 83 cars. Scratched words on some cars misspelt “Justin” as “Jutin”. During a police interview, the appellant wrote and admitted that he spelt Justin in that way.

Forensic comparison of the writing proved impossible. The prosecution therefore did not rely on the written sample itself, but relied on the appellant’s oral admission of the misspelling. The Recorder rejected applications to exclude that evidence under sections 76 and 78 of the Police and Criminal Evidence Act 1984.

With leave, the appellant appealed his convictions. He contended that the officer’s assurance that spelling did not matter, and the absence of pre-interview disclosure of the distinctive spelling, made the evidence inadmissible or unfair.

1. Appeal dismissed. The Recorder was entitled to admit the appellant’s admission that he spelt “Justin” as “Jutin”.

2. Section 76(2)(b) of the Police and Criminal Evidence Act 1984 did not apply. Assuming that the admission was a confession, there was neither oppression nor anything said or done likely, in the circumstances, to make it unreliable. The officer was putting the appellant at ease before obtaining a writing sample. The Recorder had found that the officer did not expect the appellant’s spelling.

3. The statement that spelling did not matter was not an assurance that information volunteered later in interview would not be used. Even if the admission had otherwise been excluded, section 76(4)(b) permitted so much of it as was necessary to show the manner in which the appellant wrote or expressed himself. That provision embodied the principle illustrated by R v Voisin [1918] 1 KB 531.

4. Admission was not unfair under section 78. The distinctive misspelling made inquiry as to the appellant’s spelling inevitable, even without a handwriting test. There was no trick or unfairness in obtaining the answer.

5. Pre-interview disclosure serves to enable a solicitor to advise on whether silence may justify an adverse inference under section 34 of the Criminal Justice and Public Order Act 1994. There was no fixed procedure, and the extent of disclosure depended on the case. The police were not obliged to reveal every item of evidence; the relevant question was whether the solicitor could properly advise the client. No evidence showed that the appellant’s solicitor could not do so.

• Court of Appeal (Criminal Division): dismissed the appeal against convictions entered at Truro Crown Court.

• Crown Court at Truro: on 29 August 2003, convicted the appellant of four counts of criminal damage. On 17 October 2003, imposed a total sentence of 12 months’ imprisonment, suspended for two years, and ordered payment of £600 prosecution costs.