Karia, R (On the Application Of) v The Chief Constable of Hampshire Contabulary

Paragraph 11.13 of Code C applies to relevant comments made outside a formal police interview. The duty is not confined to incriminating comments and may extend to exculpatory or unsolicited comments capable of bearing on the offence or a later adverse inference. Its scope is wider than the requirement concerning significant statements in paragraph 11.4A. The duty does not depend on a caution having been administered, although administering a caution and inviting a response may make the duty directly applicable. A failure to consider whether comments were potentially relevant because of an incorrect interpretation of Code C is unlawful. The matter should be remitted for reconsideration, including whether any breach was sufficiently serious to amount to misconduct.

The claimant sought judicial review of decisions rejecting his complaint against a police constable. After being stopped for suspected mobile-phone use while driving and an expired driving licence, the claimant was cautioned and made comments which the officer recorded partly on a fixed penalty notice. The officer did not record a later request by the claimant to add a longer response in his notebook.

The complaint and appeal were rejected on the basis that paragraph 11.13 of Code C concerned formal interviews and did not apply when a person was simply reported for an offence. The central issue was whether that interpretation was correct and, if so, whether the claimant’s further comments potentially fell within the recording duty.

1. Claim succeeded. The decisions were quashed in substance and the complaint was remitted to Hampshire Constabulary for reconsideration.
2. Paragraph 11.13 of Code C expressly applies to comments made outside the context of an interview. Its purpose is to ensure that informal comments are recorded and checked with the suspect, reducing the risk of disputes about what was said.
3. The qualification is that the comments must be ones which might be relevant to the offence. The provision is not limited to incriminating comments. It includes exculpatory comments, which may matter where a defendant later relies on a matter not mentioned when cautioned and an adverse inference is considered.
4. The phrase “comments which might be relevant to the offence” is wider than “significant statements” as defined in paragraphs 11.4 and 11.4A. The duty does not arise only after a caution. However, once the officer had cautioned the claimant and invited a response, it would have been a breach not to record a potentially relevant comment.
5. The officer recorded the claimant’s first comment and read it back to him. The failure to obtain his signature was so trivial that it could not amount to misconduct. It was arguable that the later request to add a response was an unsolicited comment which might have been relevant, but the constabulary had not considered that question because it had adopted the wrong interpretation of Code C.
6. Whether any failure to record the later comment was sufficiently serious to constitute misconduct under the Police (Conduct) Regulations 2012 was for the constabulary to determine on reconsideration.

This was a first-instance judicial review claim. The claimant had been granted permission to proceed after permission was initially refused on the papers.