R v Absolam
|England & Wales
|LORD JUSTICE BINGHAM
|01 July 1988
|Judgment citation (vLex)
| EWCA Crim J0701-9
|Court of Appeal (Criminal Division)
|01 July 1988
 EWCA Crim J0701-9
IN THE COURT OF APPEAL
Royal Courts of Justice
Lord Justice Bingham
Mr. Justice McCullough
Mr. Justice Waite
MR. R. BLOOMFIELD appeared on behalf of the Appellant.
MR. D. MEDHURST appeared on behalf of the Crown.
This is an appeal brought with the leave of the single judge against a conviction recorded on two counts in the Crown Court at Acton on 7th January this year. The appellant was then convicted of possession of cannabis with intent to supply and of a second count of supplying cannabis. On 28th January he was sentenced to nine months' imprisonment on each count concurrently suspended for two years with a supervision order. He was also ordered to pay £200 towards the costs of the prosecution.
The facts giving rise to the appeal are unusual and perhaps unlikely to be repeated. The story occurred on 9th August 1987 when, at about 11.20 p.m., the appellant was arrested for threatening behaviour. He told the police that he was on bail to Knightsbridge Crown Court at the time, and it was a condition of his bail that he should report to Harlesden Police Station at regular intervals. It so happens that the offence for which he was on bail was an offence of possessing cannabis.
He was taken to Harlesden Police Station and at a time which is not entirely clear, but which was probably about 11.27 p.m., his detention was authorised. Very shortly after that time, at 11. 28 or 11.29, he was told that his detention was authorised and the process of documenting his detention began. He was required to empty his pockets and did so. He was then asked "Is that all?" and answered "Yes".
One then comes to a somewhat extraordinary incident.
The custody officer in Harlesden Police Station who knew the purpose for which the appellant was already on bail, having seen the appellant empty his pockets, said to the appellant with a flash of inspiration, "And now put the drugs on the table". The appellant then put his hand inside his trousers and pulled out a plastic bag which contained eight smaller bags containing cannabis resin. The custody officer said: "You haven't been selling drugs again, have you?" to which the appellant answered "Yes". The appellant was then reminded of the caution which he had earlier been given and the custody officer asked him, "How many of these packets have you sold today?" The appellant answered, "I do not know." The custody officer then asked, "Were these bags ones that you have left over from selling today?" The appellant answered "Yes".
It appears, if we can pause at that point in the narrative, that in evidence the custody officer agreed with a number of things that were put to him. First, he agreed that he knew that the offence for which the appellant was on bail was one of supplying cannabis. He agreed, secondly, that he asked the appellant to put the drugs on the table in the hope that he had some drugs on him but without any grounds for believing that he had drugs on him. He agreed, thirdly, that once he saw the drugs produced by the appellant he believed that an offence had been committed and had in mind an offence of possession with intent to supply.
It was common ground that no written record was made of the questions and answers that were given by the appellant at the time, and the officer agreed that the questions which he asked were asked with a view to securing evidence for use in court at a later date by way of admission.
We resume the narrative. At about 11.33 p.m. the appellant was advised of his right to consult a solicitor. He said that he wished to have legal advice and arrangements were made to put him in touch with a legal adviser, who advised him over the telephone to answer no questions. Subsequently it appears that questions, if asked, were certainly not answered and it may be that they were not asked. Later still a written record was made of the questions and answers while the appellant was still in the police station, but this record was never shown to him nor did he sign it.
It was against that background that the indictment was preferred against the appellant. On the count of possessing cannabis with intent to supply the prosecution case rested on the appellant's admissions, which he denied. It is right to emphasise that the questions and answers which we have summarised are the questions which the police say they asked and the answers which the police say they received. The essential parts of the conversation are denied by the appellant. The case on this count also, to some extent, rested on the quantity found on the appellant and the number of bags, although later in the trial he was to say that he had bought a quantity of cannabis at a discount for his own use.
On the second count of supplying cannabis to persons unknown, the only evidence against him was the evidence of his admissions which, as I have said, he denied.
So it was that the case came before the Crown Court in Acton in January 1988. The appellant pleaded not guilty and the matter was therefore tried before the judge and jury. There was, however, a trial within a trial concerning the admissions said to have been made by the appellant and submissions were made on behalf of the appellant that the evidence of his alleged admissions should be excluded under section 78 of the Police and Criminal Evidence Act 1984.
At the end of those submissions the learned judge ruled one question and answer inadmissible, namely the first question and answer following the production of the bags of cannabis. That was the question: "You haven't been selling drugs again, have you?" asked by the custody officer, and the appellant's alleged answer "Yes." The judge ruled that the other questions and answers were admissible.
The appellant gave evidence. He denied the conversations. He said that the cannabis was for his own use but he was convicted and sentenced as we have summarised.
On the appellant's behalf Mr. Bloomfield in this court has relied essentially on the submissions which he made to the learned judge below. In that context he has referred us to various provisions of the 1984 Act and the Code. In particular we should draw attention to section 58 governing the rights to access to legal advice and sections 66 and 67 dealing with the Codes. We shall not however lengthen this judgment by citing those passages.
It is however submitted on the appellant's behalf that under the Codes he was entitled to be told at a very early stage of his detention at the police station, and before questioning, of his rights to legal advice. Our attention has been specifically drawn to the paragraphs as follows.
"C: 3.1 When a person is brought to a police station under arrest or is arrested at the police station having attended there voluntarily, the custody officer must inform him of the following rights and of the fact that they need not be exercised immediately. …. (ii) the right to consult a solicitor in accordance with section 6 below; and (iii) the right to consult this and the other codes of practice.
"C:3.2 The custody officer must also give the person a written...
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