Hughes v Director of Public Prosecutions

Questioning amounts to an interview under Code C only where it concerns a person’s involvement, or suspected involvement, in an offence and the person is at least a suspect. Preliminary questions asked while the officer is still establishing whether there are grounds for suspicion may remain a conversation. The question is assessed in context, including the officer’s state of knowledge when the questions were asked.

Even where questioning is an interview, breaches concerning legal advice, intoxication, recording, or explanation of the caution do not automatically require exclusion. The court must assess admissibility under section 78 of the Police and Criminal Evidence Act 1984, having regard to all the circumstances and the fairness of the proceedings.

The appellant was convicted by Swansea Magistrates’ Court on 4 July 2008 of aggravated taking of a motor vehicle without the owner’s consent, contrary to section 12A of the Theft Act 1988. After a stolen vehicle had crashed, a police officer found the appellant, who was intoxicated, and asked whether she had been in the vehicle and who had been driving it. She admitted being in the vehicle and named the driver.

The magistrates held that the exchange was a conversation rather than an interview under Code C. They also admitted the evidence under section 78 of the Police and Criminal Evidence Act 1984. The appeal by way of case stated concerned whether the exchange was an interview and, if so, whether the evidence was properly admitted.

The appeal was dismissed. The magistrates’ answers to both questions in the case stated were affirmed.

1. Meaning of interview. Code C paragraph 11.1A must be read in context. The term should not be given an unduly narrow meaning. Ordinarily, questioning about an alleged offence will amount to an interview where the person questioned is a suspect or has been charged. The authorities, including R v Calvin Lloyd Absolam [1989] 88 Cr.App.R 332, R v Matthews [1990] 91 Cr. App R 43 and R v Wayne Ward [1994] 98 Cr.App.R 337, did not require every preliminary exchange during an investigation to be treated as an interview.
2. Status of the appellant. The magistrates were entitled to accept the officer’s evidence that he formed the necessary suspicion only after speaking to the appellant. Their finding meant that, when the questions were asked, the appellant was not yet a suspect and the exchange was a conversation. That was sufficient to dispose of the appeal on the first issue. The approach was consistent with R (Darren Sean Ridehalgh) v DPP [2005] EWHC 1100 (Admin), where preliminary questioning was treated as a conversation while the officer was still establishing whether grounds for suspicion existed.
3. Alternative issue. Even if the exchange had been an interview, the alleged procedural defects did not require exclusion. Section 58 of the Police and Criminal Evidence Act 1984 did not apply because the appellant had not then been arrested or held in custody and had not requested legal advice. Code C paragraph 11.2 concerned interviews at a police station or other authorised place of detention, whereas this exchange occurred in the street. The magistrates were entitled to find that the appellant understood the questions despite her intoxication and that the written record was made as soon as reasonably practicable. There was no evidence that she failed to understand the caution.
4. Fairness. Applying section 78 of the Police and Criminal Evidence Act 1984, admission of the evidence would not have such an adverse effect on the fairness of the proceedings as to make it inadmissible. The evidence was therefore properly admitted.

The appeal was dismissed. A costs order of £750 was made, subject to liberty to apply if the appellant was protected by legal aid.

• High Court (Administrative Court): The appeal by way of case stated from the decision of Swansea Magistrates’ Court on 4 July 2008 was dismissed.