Tietchem, R v

Evidence of remarks made on arrest may be admitted where the trial judge is entitled to regard a remark as spontaneous, or to conclude that its admission remains fair despite breaches of Code C. The absence of a contemporaneous note does not necessarily make the evidence unreliable or unfair, particularly where the officer records it promptly after events and can be tested in cross-examination. Questions of reliability may properly be left to the jury with appropriate directions. An appellate court will not interfere merely because the admissibility decision was contested where the judge considered the relevant safeguards and exercised the statutory discretion properly.

The applicant was convicted at Leicester Crown Court of assisting unlawful immigration to a Member State of the European Union and sentenced to two years’ imprisonment, which she had served. The prosecution alleged that she participated in a scheme involving sham marriages, forged documents and bogus spouses.

On her arrest, an immigration officer said that the applicant made two incriminating remarks. The defence challenged their admission. It contended that the first was obtained through an interview conducted without the safeguards in Code C, and that the second was a confession which should have been excluded. It also relied on section 78 of the Police and Criminal Evidence Act 1984.

After a single judge refused leave, the applicant renewed her application to appeal against conviction.

1. The renewed application for leave to appeal against conviction was refused. The court agreed with the single judge that the conviction was not unsafe.
2. The trial judge had been entitled to admit the first remark as spontaneous, notwithstanding that it followed a question about the delay in opening the door. In any event, its admission could properly be assessed on the same basis as the second remark.
3. In relation to the alleged confession, the judge had proceeded on the basis most favourable to the applicant, namely that there had been breaches of Code C. Those breaches did not compel exclusion. The immigration officer’s statement was made the next day, while events were fresh, and the circumstances of the arrest and her long working day explained why no contemporaneous note had been made.
4. The evidence was capable of being reliable. Its reliability was for the jury, which heard full cross-examination about the asserted breaches and the suggestion that the officer had invented the remarks after the applicant gave a no-comment interview. The judge gave unchallenged, full and accurate directions on how to approach the disputed statements. In the context of the substantial and coherent prosecution case, the conviction could not be regarded as unsafe.

• Court of Appeal (Criminal Division): renewed application for leave to appeal against conviction refused in [2018] EWCA Crim 880.
• Single judge: refused leave to appeal against conviction.
• Crown Court at Leicester: on 7 December 2016, convicted the applicant after trial of assisting unlawful immigration to a Member State of the European Union and imposed two years’ imprisonment.