Charles v Crown Prosecution Service

When exercising the discretion under Police and Criminal Evidence Act 1984, section 78, a court must assess the overall fairness of admitting evidence obtained following breaches of the statutory safeguards and the applicable Code of Practice. The voluntary nature of an admission and the absence of police bad faith are relevant, but neither is decisive. The court must also consider the importance and significance of the breaches, particularly where they deprive a detainee of protection against self-incrimination and the evidence is essential to the prosecution case.

The appellant appealed by way of case stated against his conviction by Peterlee Magistrates on 11 June 2008 for driving with excess alcohol. He had been arrested on suspicion of being in charge of a vehicle while unfit through drink and was later informed that he might be prosecuted. Despite this, he was interviewed in breach of paragraph C 16.5 of the Code of Practice under the Police and Criminal Evidence Act 1984. He was also given the wrong caution. During the interview he admitted driving, and the magistrates admitted the evidence under section 78 of the Act. The central issues were whether that ruling was legally correct and whether the magistrates had applied the correct fairness test.

1. The appeal was allowed. The magistrates’ ruling that the interview evidence was admissible was wrong in law.
2. The interview involved two established breaches. The appellant was interviewed after being informed that he might be prosecuted, contrary to paragraph C 16.5 of the Code of Practice, and was given the new caution instead of the required old-form caution.
3. Under section 78 of the Police and Criminal Evidence Act 1984, the court must decide whether admission of the evidence would have an adverse effect on the fairness of the proceedings. The assessment requires the court to weigh all relevant circumstances.
4. The appellant’s voluntary admission and the absence of police bad faith were relevant factors, but they were not dispositive. The safeguards in the Act and Code are important protections which impose significant disciplines on the police. Their breach, and the significance of the resulting loss of protection, must be considered.
5. The magistrates had treated the voluntary nature of the confession as their sole reason for admitting it. They had failed to consider the importance of the breaches, the absence of any proper caution, and the fact that the appellant was not told that the questioning had shifted to an offence carrying more serious consequences. Since the admission was the only evidence that he had been driving, its admission adversely affected the fairness of the proceedings.
6. The magistrates had identified the correct statutory test, but their answer could only be a qualified yes because they failed to take into account the necessary ingredients relevant to that test.
7. A defendant’s costs order was made for costs up to 28 May 2009, and the costs covered by the representation order were directed to detailed assessment.

• High Court (Administrative Court): The appeal by way of case stated was allowed. The conviction for driving with excess alcohol was quashed.
• Peterlee Magistrates: The appellant was convicted on 11 June 2008.