Law Report: Questioning at time of arrest was interview: Regina v Cox - Court of Appeal (Criminal Division). (Lord Justice Staughton, Mr Justice Waterhouse and Mr Justice McCullough), 4 November 1992

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Whether or not a series of questions put to a suspect at the time of his arrest and his answers to them constituted an interview as defined by note 11A of the 1991 revision of Code C, a code of practice issued under the Police and Criminal Evidence Act 1984, depended on all the circumstances of the case, as considered against the framework of events contemplated by the code, beginning with the decision to arrest and culminating in a formal interview following the suspect's notification of his right to free legal advice.

The Court of Appeal (Criminal Division) dismissed an appeal by Rodney William Cox against his conviction at Isleworth Crown Court (Mr Recorder Radcliffe and a jury), on 8 June 1992, for handling stolen goods and driving a conveyance taken without authority.

Simon AR Smith (Registrar of Criminal Appeals) for the appellant; Jacqueline Matthews-Stroud (CPS, Isleworth) for the Crown.

MR JUSTICE McCULLOUGH, giving the reserved judgment of the court, said the appellant was arrested at his home by two police officers, one of whom told him that they had seen him the previous Thursday driving a stolen lorry in Hazel Close, Brentford; that when searched it was found to contain stolen furniture, and that when officers had gone to arrest him he had run away and made good his escape.

Then followed the conversation to which objection was taken. Q: 'What have you got to say about that?' A: 'If you think you can prove it go ahead.'

The appellant was then arrested and cautioned. He made no reply. Q: 'Where is the clothing that you were wearing last Thursday, Rodney?' A: 'You have two chances of finding it.'

Q: 'But you are not doubting that we saw you last Thursday in Hazel Close in the lorry?' A: 'If you saw me it's up to you to prove it, but I'll give you six to four I'll get off.'

Later that morning the appellant was formally interviewed in the presence of his legal representative. The interview was tape recorded. The appellant declined to answer questions or make any comment about what was being put to him.

At the trial, the Crown sought to introduce evidence of the three questions and answers.

The defence objected, arguing that although only three questions were asked, what took place was in reality an interview for the purposes of the Code, and that a number of the requirements of paragraph 11, which concerned interviews, were not fulfilled. The Crown accepted that the appellant should have been cautioned before, rather than after, the first question, but contended that what took place was not an interview.

The Recorder accepted the officers' evidence that the questions had been asked for the limited purpose of establishing where the appellant's clothing was and whether his identity was in dispute, and ruled that the questioning 'fell short of an interview, a formal interview' so that none of the provisions of paragraph 11 of the Code had been breached.

Note 11A provided: 'An interview is the questioning of a person regarding his involvement or suspected involvement in a criminal offence or offences.

'Questioning a person simply to obtain information or his explanation of the facts or in the ordinary course of the officer's duties, does not constitute an interview for the purpose of this code. Neither does questioning which is confined to the proper and effective conduct of a search.'

Its meaning was difficult to grasp, particularly in the second sentence. The exception for an officer acting in the ordinary course of his duties made nonsense of paragraph 11, since an officer conducting a formal interview with a view to obtaining evidence to be given in court was acting in the ordinary course of his duties.

Questioning a person simply to obtain information or his explanation of the facts was excepted, yet in formal interviews questions were commonly asked to obtain information from a suspect or to obtain the suspect's explanation for the facts.

It could hardly be intended that interviews confined to such questions should be outside the scope of paragraph 11.

Provisions elsewhere in the code required a person brought to a police station under arrest to be informed of his right to free legal advice and, except in clearly defined circumstances, a person who asked for such advice might not be interviewed until he had got it.

What all these provisions, including the revised version of paragraph 11, made clear was that the usual order of events contemplated by the revised code was: decision to arrest; arrest; arrival at police station; notification of right to free legal advice; free legal advice (if desired); interview (with reminder of right to free legal advice immediately before start of interview).

It was against that framework that one had to ask, in any given set of circumstances, whether or not the questioning amounted to an interview.

In this case, the first and third questions were clearly asked not simply to establish the appellant's identity, but to get him to admit that he had driven the lorry, a vital part of the case against him. To ask them was to interview the appellant.

They should not have been put until the appellant had arrived at the police station and been informed of his right to free legal advice.

On the evidence as a whole, however, no miscarriage of justice had resulted, and, applying the proviso to section 2(1) of the Criminal Appeal Act 1968, the appeal should be dismissed.

Paul Magrath, Barrister