Rehman, R. v

Where a defendant establishes a proper evidential foundation for alleging that pre-caution questioning breached Code C, the judge should permit the issue to be tested on a voir dire. The witness evidence must be considered as a whole, rather than analysed question by question.

However, an erroneous refusal of a voir dire does not itself make a conviction unsafe. Under section 78 of the Police and Criminal Evidence Act 1984, even a significant breach requires exclusion only where admission would adversely affect the fairness of the proceedings so that justice requires exclusion. The nature of the questioning, its reliability, and the defendant's ability to explain the answers at trial remain material.

The appellant was convicted at Manchester Crown Court of being knowingly concerned in the fraudulent evasion of the prohibition on importing diamorphine. He was sentenced to eight years’ imprisonment.

Customs officers found diamorphine concealed in a suitcase which the appellant said he had acquired in Pakistan from a friend. Before his arrest, he had answered questions indicating that the suitcase was his and that he had taken it abroad. At trial he denied knowledge of the drugs.

On appeal, he contended that the trial judge should have held a voir dire concerning an alleged failure to caution him earlier, that the good-character direction was inadequate, and that the judge made an improper comment after directing that no adverse inference could be drawn from his interview silence. The central issue was whether those errors rendered the conviction unsafe.

1. Appeal dismissed. The trial judge erred by refusing to hold a voir dire on the alleged breach of Code C. The defence had laid a proper foundation: viewed as a whole, the Customs officer’s witness statement gave rise to a justified apprehension that she might have had reasonable grounds to suspect the appellant before the relevant questioning. The judge should not have resolved that issue by deferring to an asserted Customs policy or to information conveyed through prosecuting counsel.

2. The error did not make the conviction unsafe. The court did not determine whether Code C had in fact been breached, because the officer had not been examined. Applying the approach in Senior and Senior [2004] 2 Crim App R 12, any possible breach would not have required exclusion under section 78 of the Police and Criminal Evidence Act 1984. The questions were routine, straightforward and non-oppressive; there was no dispute about the officer’s record; and the appellant was able to explain his answers before the jury. The court was satisfied that the jury convicted only after rejecting his account of how he acquired the suitcase.

3. The good-character direction was expressed with undue hesitation and deserved criticism. Nevertheless, its opening statement made clear that the appellant’s character was relevant to propensity and credibility. The jury would have understood that it had to consider good character and decide the weight to give it. The direction did not affect the safety of the conviction.

4. The judge correctly directed the jury not to draw an adverse inference from interview silence. His additional observation that Customs had lacked an opportunity to check the appellant’s account was gratuitous and inaccurate in part, since the defence had been foreshadowed in the defence statement. It too did not affect the safety of the conviction, whether considered alone or cumulatively with the other shortcomings.

• Court of Appeal (Criminal Division) — dismissed the appeal against conviction.
• Manchester Crown Court — convicted the appellant on 27 January 2005 of being knowingly concerned in the fraudulent evasion of the prohibition on importing diamorphine, and sentenced him to eight years’ imprisonment.