Shepherd v R.

During a bona fide initial inquiry to establish what occurred, where police do not suspect a criminal offence, the caution and legal-advice safeguards in Code C of the Police and Criminal Evidence Act 1984 are not yet engaged. If suspicion arises, the inquiry must stop and the safeguards apply.

Even if Code C has been breached, evidence is not automatically excluded. Under section 78, the court must assess the fairness of the proceedings as a whole. In extradition cases, consent by the requested state to dealing with an additional offence must be actually obtained; an exchange of information which neither requests nor gives consent is insufficient.

The appellant was tried in his absence at the Central Criminal Court and convicted of gross negligence manslaughter following the death of Charlotte Brown after his speedboat struck a submerged object on the River Thames. He appealed on the basis that his recorded significant-witness interview, conducted the day after the incident without a caution or legal advice, should have been excluded.

After surrendering in Georgia and returning to the United Kingdom, he admitted failing to surrender to bail contrary to section 6 of the Bail Act 1976. He also challenged that conviction, contending that Georgia had not consented to his being dealt with for that separate offence under the specialty rule.

1. The appeal against the manslaughter conviction was dismissed. The court was not prepared to hold that the trial judge erred in finding that Code C was not engaged. The police were conducting a good-faith inquiry to understand an incident which they did not then suspect involved criminal conduct. The existence of an unknown and specialised byelaw offence did not, on these facts, require the court to reject that finding. If suspicion of criminality arises during such an inquiry, however, questioning must cease and the Code C safeguards, including caution and access to legal advice, must be observed.
2. In any event, the redacted interview was admissible under section 78 of the Police and Criminal Evidence Act 1984. A breach of the Code does not impose an automatic rule of exclusion. The question is whether admission would adversely affect the fairness of the proceedings such that the evidence ought not to be admitted. The judge had excluded the later, specific questioning about alcohol. The admitted answers were given in response to open questions and substantially accorded with the appellant’s intended account. The prosecution also had substantial evidence independent of the interview. The appellant’s deliberate absence from trial could not place him in a better position than he would have occupied had he attended.
3. The court considered Ibrahim v United Kingdom (2016) 61 EHRR 9 and confirmed that Article 6 fairness is assessed by reference to the proceedings as a whole. The extensive voire dire, the availability of other evidence, and the absence of criticism of the summing-up supported the conclusion that the trial was fair.
4. The appeal against the conviction under section 6 of the Bail Act 1976 was allowed. The extradition request did not seek surrender for that offence, and the information supplied did not suffice under section 151A(3)(b) of the Extradition Act 2003. Nor did Georgia consent under section 151A(3)(c). The correspondence was an exchange about differing approaches to bail and specialty; it contained neither a formal request for consent nor consent on Georgia’s behalf. The proceedings were therefore a nullity and the conviction and consecutive sentence were quashed.
5. The appellant’s admitted failure to answer bail remained capable of future action if a statutory specialty exception later applied, or if a properly framed request and consent were obtained. That question was left to the authorities.

• Court of Appeal (Criminal Division): In [2019] EWCA Crim 1062, dismissed the appeal against the manslaughter conviction but allowed the appeal against the Bail Act conviction, which was quashed as a nullity.
• Central Criminal Court: The appellant was tried in his absence and convicted of manslaughter. He was sentenced to six years’ imprisonment. After his return from Georgia, he admitted failing to surrender to bail and received a consecutive sentence of six months’ imprisonment.