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.

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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