R v Keenan
| Jurisdiction | England & Wales |
| Judge | MR. JUSTICE HODGSON |
| Judgment Date | 26 April 1989 |
| Neutral Citation | [1989] EWCA Crim J0426-4 |
| Judgment citation (vLex) | [1989] EWCA Crim J0426-3 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | No. 421/C2/88 |
| Date | 26 April 1989 |
[1989] EWCA Crim J0426-3
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Lord Justice Mustill
Mr. Justice Hodgson
and
Mr. Justice Potter
No. 421/C2/88
MR. D. COCKS, Q.C. and MISS K. HAMMOND appeared on behalf of the Appellant.
MR. M. CARROLL appeared on behalf of the Crown.
On 29th January 1988 this appellant, after a short trial at the Southwark Crown Court, was found guilty of being in possession of an offensive weapon, a home-made spear, contrary to section 1(1) of the Prevention of Crime Act 1953. Mr. Assistant Recorder Viljoen, after an adjournment for the preparation of reports, sentenced him to three months' detention centre on 25th February 1988.
Against that conviction he now appeals by leave of the full Court. At his trial he was represented by Miss Hammond who, before us, has appeared as junior counsel.
This appeal raises yet again the question of the relationship between section 78(1) of the Police and Criminal Evidence Act 1984 (the Act) and the other provisions of that Act and, in particular, the Code of Practice for the Detention, Treatment and Questioning of Persons by Police Officers (Code C).
Its facts give us some concern. On 7th June 1987 the appellant, a young man then 19 years of age, owned a motor car. On the evening of that day he exchanged his car for another one. Later, shortly after 7 p.m., he was driving his new car with a passenger called McKenna in the Limehouse area of East London. Two police officers. Police Constable Edwards and Police Constable Buchanan, who were in a marked police vehicle, saw the car driving towards them at a high speed. They turned and went in pursuit.
The appellant drove recklessly and at speed. He outstripped his pursuers. They called for assistance on their radio. A police car containing three police officers, Sergeant Carterer, Sergeant Thomas and Police Constable Low, took up the chase. The appellant continued to drive at great speed, but eventually was caught. He and McKenna attempted to make their escape on foot but, after violent struggles, both were arrested.
In the meantime the police van containing Edwards and Buchanan had caught up with events. Edwards arrested the appellant on suspicion of taking and driving away the car. The appellant and McKenna were placed in the van and taken to Limehouse Police Station, arriving at 7.35 p.m. We have not seen the Custody Record Sheet, but it is accepted that the appellant signed it and the list of articles taken from him included the word "spear".
Shortly after midnight he was charged with possession of an offensive weapon, made no reply, and was later released on bail.
He appeared before the Magistrates on 29th July 1987. He was charged with various driving offences and pleaded guilty to having no insurance, no M.O.T. Certificate and to three offences of careless driving. He told the Magistrates that he tried to escape from the police because he had no insurance and feared he would lose his licence, which was essential to him to his job as a motor mechanic. He was also charged with possession of an offensive weapon.
He was committed for trial under section 6(2) of the Magistrates' Courts Act 1980. Four statements were tendered in evidence under section 102 of the Act. One was from the man with whom he had exchanged cars. The other three were from the three police officers, Carterer, Thomas and Low, who had taken up the chase in the police car. Most of these statements were concerned with details of the chase. However Carterer and Thomas concluded their statements by saying that after the appellant had been arrested and in his absence they had searched his car and found on the floor of the vehicle between the driver's seat and the door "a plastic two-foot pole with a six-inch knife attached to the end by tape".
That was the only evidence in respect of the "spear" which was placed before the Magistrates. There was no evidence that the appellant had ever been asked about the weapon or been given an opportunity to explain its presence or deny his possession of it. The three statements were all dated 7th June, the day of the appellant's arrest.
However on 4th September 1987 a statement from Police Constable Buchanan was served as additional evidence and on 25th September it was followed by a statement from Police Constable Edwards. The date on Buchanan's statement is indecipherable on the photocopy provided to us but Edwards's statement was made on 20th July 1987, nine days before the appellant was committed.
The relevant part of Edwards's statement begins after he and Buchanan had arrived on the scene and gone to the assistance of the arresting officers. It reads:
"I and P.C. 490E then took hold of Keenan. I then said to him, 'O.K. mate I'm arresting you for T.D.A.', cautioned at 7.25 p.m. and he replied, 'Yeah, O.K.'. Taken to Limehouse Police Station, arrived at 7.35 p.m. At the station at about 8 p.m. as a result of what I was told, I reminded Keenan he was under caution, in the Charge Room at Limehouse Police Station and said, 'O.K. I just want to ask you some quick questions'. He replied, 'Yeah, O.K.' I said, 'I now know all about the car and that you haven't got insurance'. He said 'Yeah'. I said, 'As well as that, I've got to ask you about this'. I then produced a 2 foot pole with a 6 inch knife blade attached to the end (Exhibit ST/1). Keenan then nodded. I said, 'Do you know where this came from?' He said, 'Aye, it was in my car'. I said, 'What have you got it there for?' He said, 'It's not mine'. I said, 'Whereabouts was it in the car?' He said, 'By my seat'. I said 'Why did you have it there?' He said, 'I dunno', I said, 'Look you had it there for a reason didn't you?' He said, 'If you say so". I said, 'Well, did you or didn't you?' Keenan shrugged his shoulders. I said, 'Do you know what this is?' He said, 'Yeah, it looks like a spear'. I said, 'What's it for?' He laughed and then said, 'For spearing I suppose". I said, 'Do you find this amusing?' He said, 'No, look it's not mine, it was in the car'. I said, 'Whose is it then?' Keenan looked at the floor. I said, 'Well this is a nasty looking weapon and I intend to charge you with possessing it'. Keenan nodded. At 12.47 a.m. on Monday 8th June 1987, I was present when Keenan was charged, charge read over and cautioned and he made no reply."
The trial began on 27th January 1988. Counsel had agreed that the most sensible course was for the Judge to hear Miss Hammond's objection to the admissibility of the evidence of Edwards and Buchanan before the trial proper began: a jury was therefore sworn, the appellant was put in its charge, and the jury was then sent away.
The two police officers were called by the prosecution. Their evidence was that after the question and answer session with the appellant (they were disinclined to call it an interview) they repaired to the canteen and with matters fresh in their memory made up their notes. Whatever the reservations of the police officers were, we are satisfied (as indeed was the Assistant Recorder) that the series of questions and answers constituted an interview (see Absolam unreported, 1st July 1988, referred to below). To these notes they referred when giving the evidence which was in their statements and to which we have referred. There was no reason recorded in the pocket book as to why the interview had not been contemporaneously recorded nor had the appellant been given the opportunity to read the note. There were thus plain breaches of paragrpahs 11.3(b)(ii), 11.6 and 12.12 of the Code.
We will return to the precise provisions of these paragraphs, but a matter of immediate concern arises from the transcript of these officers' evidence. Time and again when Miss Hammond put the relevant provisions of the code to the officers, they said not only that they had not known of the provisions at the time but that they still did not know of them. Indeed in respect of two paragraphs Edwards said he knew of none of his colleagues who were aware of them. If that statement is correct, such a degree of ignorance some eighteen months after the 1984 Act came into force (1st January 1986) is appalling, particularly on the part of officers in the Metropolitan Force, which Force, as this Court knows, conducted a "trial run" of the Act's provisions for many months before the Act came into force.
At the conclusion of the police evidence Miss Hammond made her submissions. It must be remembered that this was in January 1988, before the flood of cases on the Act, and in particular sections 76 and 78, had begun to be reported. Understandably the Act, and in particular the Code, came as a surprise to the learned Assistant Recorder and the only authority which Miss Hammond was able to cite to him was the reported decision of a Recorder in R. v. Foster (1987) Crim. L.R. 821.
During the hearing, whilst Buchanan was giving evidence, one of the difficulties which is bound to occur in this sort of case manifested itself. The Assistant Recorder asked, "Miss Hammond, you have not challenged anything of what was said?" and she replied, "Only the admissibility of it at this stage." And indeed, throughout the argument she did not reveal which of the possible responses the appellant would make to the evidence if it was admitted. Feeling her way skilfully in a new field, she made in effect two main submissions. The first that, having been denied the opportunity of indicating at the time whether he agreed or disagreed with what was recorded, the appelllant was now at a disadvantage compared with the police officers many months later. That submission addressed...
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Subject Index
.... . . . .337R vK [2007] EWCACrim 491 . . . . . . . . . . . . . . . 277R vKearley [1992] 2AC 228, HL. . . . . . . . . . . . . 331R vKennan [1990] 2QB 54 . . . . . . . . . . . . . . . . . 298R vKhan [2008] EWCACrim 531 . . . . . . . . . . . 252R vKhelawon 2006 SCC57 . . . . . . . . . . . . . ......