Director of Public Prosecutions v Lawrence

Code C, Part 11.13 of the Police and Criminal Evidence Act 1984 Codes of Practice protects suspects against fabricated self-incriminating statements made after the alleged offence. It does not govern words or behaviour that themselves constitute, or form part of, the offence. A section 78 challenge must therefore be considered on the correct statutory footing. Ordinarily, the court should hear the evidence sought to be excluded and examine the circumstances said to make its admission unfair.

The Director of Public Prosecutions appealed by way of case stated from the Warley Justices’ decision of 13 September 2006. The justices dismissed a charge under section 5 of the Public Order Act 1986 after excluding evidence of words allegedly spoken by the defendant during the incident.

The exclusion was based on section 78 of the Police and Criminal Evidence Act 1984 and Code C, Part 11.13. The central question was whether that provision applied to words alleged to form part of the charged offence, rather than comments made after its commission.

1. Appeal allowed. The Divisional Court held that Code C, Part 11.13 was not engaged by the words attributed to the defendant.
2. Part 11 must be read in the context of Code C as a code concerning the detention, treatment and questioning of persons. Part 11.13 is directed to comments made after the alleged commission of the offence, including unsolicited comments outside a formal interview, and protects against fabrication by police officers.
3. That protection does not extend to words spoken as part of the conduct constituting the offence. Extending it to public-order offences in which words are an element would make the provision apply before any interview or post-arrest exchange could arise.
4. The asserted unfairness did not justify a different interpretation. The defendant had an opportunity when charged to contradict the allegation, received the officers’ witness statements before the hearing, and could have challenged the evidence at trial. The court did not determine the section 78 discretion on the mistaken premise that Part 11.13 governed the evidence.
5. Where a section 78 challenge concerns statements made by an accused, it is normally desirable for the court to hear the evidence sought to be excluded and investigate the circumstances said to make admission unfair. If summary justices exclude the evidence, they should consider whether the substantive hearing should be before a differently constituted bench.
6. The court initially directed remission, but the prosecution confirmed that it would not continue. The operative relief was the ruling that the justices had erred in law.

• High Court (Administrative Court): allowed the DPP’s appeal by way of case stated and held that the Warley Justices had erred in excluding the evidence under Code C, Part 11.13: [2007] EWHC 2154 (Admin).
• Warley Justices: on 13 September 2006, excluded the evidence and dismissed the section 5 charge.