Law Report: Incriminating taped cell talk admissible: Regina v Bailey and another - Court of Appeal (Criminal Division) (Lord Justice Simon Brown, Mr Justice Popplewell and Mr Justice Rattee), 11 March 1993.

Tape-recordings of incriminating conversations between defendants who, after they had been charged, had been tricked into sharing a bugged police cell were admissible in evidence.

The Court of Appeal dismissed appeals by Jason Gregory Bailey against his conviction of three counts of robbery and by Steven Simon Smith against his conviction of a single count of robbery.

The appellants, who had remained silent during police interviews, were charged with conspiracy to commit robberies. Although there was some evidence incriminating the appellants the police needed more evidence and obtained permission to install listening equipment in a remand cell. The appellants were remanded into police custody to take part in identification parades.

The police, to allay suspicion about the cell being bugged, acted out a charade whereby they pretended that they did not wish to put both men in the same cell but that it was being forced on them by an unco-operative custody officer. The appellants were fooled by the officers' play acting and embarked on conversations which contained a number of admissions.

Evidence of the taped conversations was admitted at their trial before Judge Astill and a jury at Nottingham Crown Court. They appealed on the ground, among others, that the evidence was inadmissible.

Gavin Merrylees (Registrar of Criminal Appeals) for Bailey; James A D Wood (Registrar of Criminal Appeals) for Smith; Peter Joyce QC (CPS) for the Crown.

LORD JUSTICE SIMON BROWN, giving the judgment of the court, said that if the evidence of the taped conversations was not properly admissible, then the appellants went free.

Although under the Police and Criminal Evidence Act 1984 code of practice the appellants, having been charged, could not properly have been subject to further police questioning, that was not to say that they had to be protected from any opportunity to speak incriminatingly to each other if they chose to do so.

R v Shaukat Ali, unreported,

1 February 1991, where evidence of covertly tape-recorded conversations between the appellant and his family in the interview room at the police station was held admissible, was not distinguishable. Although in Shaukat Ali the police did not need to resort to deceit beyond that involved in surreptitiously bugging the interview room and there was no charade required to allay the accused's suspicions that he might be overheard, that was merely a detail.

In R v Stewart (1970) 54 Cr App R 210, where the evidence of incriminating conversation between prisoners noted down by a detective dressed like a fellow prisoner in an adjoining cell was admissible, there was trickery of a comparable kind used here.

The court recognised that Shaukat Ali was perhaps the first case which held that evidence of this nature was admissible even though obtained after the accused had been charged, and that the present case involved an additional measure of trickery beyond that employed in Shaukat Ali itself - the play acting to allay the accuseds' suspicions.

The court also recognised that some might think it odd and even unsatisfactory that alongside a rigorously controlled legislative regime governing the detention, treatment and questioning of those in police custody, parallel covert investigations of this nature could legitimately continue. However, the court was not merely bound by the principles enunciated in Shaukat Ali but saw no reason to decry the police's conduct nor to doubt the essential fairness of the evidence having been held admissible. Manifestly this was not a stratagem to be used with any frequency - nothing would more obviously be self-defeating; it should be used only in grave cases. And manifestly nothing should be done oppressively or so as to render unreliable any admission made.

But where very serious crimes had been committed and where there had never been the least suggestion that the covertly taped confessions were oppressively obtained or other than wholly reliable, it was hardly surprising that the trial judge exercised his discretion to admit the evidence.

If evidence of this sort was generally to be regarded as undesirable and inadmissible, then it was for the codes to be extended accordingly. As the legislation and codes presently stood, there was neither unlawfulness in the obtaining, nor unfairness in the admitting, of the taped conversations.

Ying Hui Tan, Barrister

PROMOTED VIDEO
Have you tried new the Independent Digital Edition apps?
News
ebooksAn unforgettable anthology of contemporary reportage
Life and Style
food + drink
Life and Style
Shoppers in Covent Garden, London, celebrate after they were the first to buy the iPhone 6, released yesterday
tech
News
Liam Payne has attacked the media for reporting his tweet of support to Willie Robertson and the subsequent backlash from fans
peopleBut One Direction star insists he is not homophobic
Arts and Entertainment
A bit rich: Maggie Smith in Downton Abbey
tvSeries 5 opening episode attracts lowest ratings since drama began
Arts and Entertainment
Ben Affleck stars as prime suspect Nick Dunne in the film adaptation of Gone Girl
filmBen Affleck and Rosamund Pike excel in David Fincher's film, says Geoffrey Macnab
Life and Style
fashion
News
news
News
people
Travel
Warner Bros released a mock-up of what the new Central Perk will look like
travel
Arts and Entertainment
Lena Dunham
booksLena Dunham's memoirs - written at the age of 28 - are honest to the point of making you squirm
News
i100
Arts and Entertainment
Jake Quickenden sings his heart out in his second audition
tvX Factor: How did the Jakes - and Charlie Martinez - fare?
Latest stories from i100
Have you tried new the Independent Digital Edition apps?
Independent Dating
and  

By clicking 'Search' you
are agreeing to our
Terms of Use.

iJobs Job Widget
iJobs General

KS2 Teacher with SEN responsibilities

£115 - £130 per day: Randstad Education Luton: KS2 teacher with SEN responsibi...

Administrative Assistant

£60 - £75 per day: Randstad Education Luton: Administrative Assitant Hertford...

Web Application Support Manager

£60000 Per Annum: Clearwater People Solutions Ltd: Our client based in Reigate...

** Secondary History Teacher Required In Liverpool **

£120 - £165 per day: Randstad Education Liverpool: Job opportunities for Secon...

Day In a Page

A roller-coaster tale from the 'voice of a generation'

Not That Kind of Girl:

A roller-coaster tale from 'voice of a generation' Lena Dunham
London is not bedlam or a cradle of vice. In fact it, as much as anywhere, deserves independence

London is not bedlam or a cradle of vice

In fact it, as much as anywhere, deserves independence
Vivienne Westwood 'didn’t want' relationship with Malcolm McLaren

Vivienne Westwood 'didn’t want' relationship with McLaren

Designer 'felt pressured' into going out with Sex Pistols manager
Jourdan Dunn: Model mother

Model mother

Jordan Dunn became one of the best-paid models in the world
Apple still coolest brand – despite U2 PR disaster

Apple still the coolest brand

Despite PR disaster of free U2 album
Scottish referendum: The Yes vote was the love that dared speak its name, but it was not to be

Despite the result, this is the end of the status quo

Boyd Tonkin on the fall-out from the Scottish referendum
Manolo Blahnik: The high priest of heels talks flats, Englishness, and why he loves Mary Beard

Manolo Blahnik: Flats, Englishness, and Mary Beard

The shoe designer who has been dubbed 'the patron saint of the stiletto'
The Beatles biographer reveals exclusive original manuscripts of some of the best pop songs ever written

Scrambled eggs and LSD

Behind The Beatles' lyrics - thanks to Hunter Davis's original manuscript copies
'Normcore' fashion: Blending in is the new standing out in latest catwalk non-trend

'Normcore': Blending in is the new standing out

Just when fashion was in grave danger of running out of trends, it only went and invented the non-trend. Rebecca Gonsalves investigates
Dance’s new leading ladies fight back: How female vocalists are now writing their own hits

New leading ladies of dance fight back

How female vocalists are now writing their own hits
Mystery of the Ground Zero wedding photo

A shot in the dark

Mystery of the wedding photo from Ground Zero
His life, the universe and everything

His life, the universe and everything

New biography sheds light on comic genius of Douglas Adams
Save us from small screen superheroes

Save us from small screen superheroes

Shows like Agents of S.H.I.E.L.D are little more than marketing tools
Reach for the skies

Reach for the skies

From pools to football pitches, rooftop living is looking up
These are the 12 best hotel spas in the UK

12 best hotel spas in the UK

Some hotels go all out on facilities; others stand out for the sheer quality of treatments