R v Samuel
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE GLIDEWELL,MR. JUSTICE HODGSON |
| Judgment Date | 17 December 1987 |
| Judgment citation (vLex) | [1987] EWCA Crim J1217-2 |
| Docket Number | No. 2604/A3/87 |
| Court | Court of Appeal (Criminal Division) |
| Date | 17 December 1987 |
[1987] EWCA Crim J1217-2
Lord Justice Glidewell
Mr. Justice Hodgson
and
Mr. Justice Rougier
No. 2604/A3/87
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
MR. B.R. ESCOTT-COX, Q.C. and MR. P.L. PARKER appeared on behalf of the Appellant.
MR. D. JONES appeared on behalf of the Crown.
Mr. Justice Hodgson will give the judgment of the Court. Mr. Justice Rougier is unable to be present this afternoon, but the judgment has been approved by all three of us.
On 8th April of this year at Birmingham Crown Court, before His Honour Judge Cole, this appellant faced an indictment containing one count of robbery and two of burglary. The third count of burglary alleged the theft of items totalling in value £1,135.
By agreement the appellant was tried on the robbery count only. On 13th April he was found guilty; he thereupon pleaded guilty to the two burglary offences. For the robbery he was sentenced to 10 years' imprisonment. He received concurrent sentences of 2 years' imprisonment for the burglaries, and they were made concurrent with the 10 years for the robbery. Against his conviction for robbery he appeals by leave of the single judge.
On Friday 11th July 1986, at about 2.55 p.m., three men entered an agency branch of the Leeds Permanent Building Society in Birmingham. The cashier saw one of the men turn towards the main entrance and pull a sack over his head. She dashed towards the door into the manager's office, but too late, and the three men were able to follow her through to the room where the manager and another man were. The manager was threatened at knife point and ordered to open his briefcase, which had no money in it. One of the robbers was armed with a sawn-off shot gun, another with a small black hand gun. The cashier, a Miss Werrett, told one of the men that the money was in a drawer and offered to show him the right key. She got up and he held her round her neck with his left arm and pushed the shotgun against her neck with his right hand. She selected the key and the drawer was opened. Inside was a cash box. She told the robbers it contained all the money there was. They took it and left. She pressed the panic button which sounded alarm bells. The money in the cash box was £300.
On 5th August two men, one of whom was the appellant, entered the branch; Miss Werrett recognised them as two of the robbers. The appellant presented a pass-book in his own name and deposited £70. When the two men left the police were called. On the following day the appellant was arrested on suspicion of armed robbery. He was taken to Ladywood Police Station, arriving at 2.00 p.m. At 2.07 p.m. he signed the custody record stating that he did not "want a solicitor at this time". At about 2.25 p.m. his house was searched, and later that day at 10.45 p.m. it was again searched. Included in the property taken from the house as a result of these two searches were two face masks (one black, one green), a building society pass-book, hidden under a carpet, photographs showing the appellant kissing bundles of bank notes and a good deal of the property stolen in the two burglaries. It is upon what happened after the appellant's arrival at the police station that his appeal is based.
Between 2.21 p.m. and 2.35 p.m. he was interviewed. He denied everything. He was interviewed again between 8.12 p.m. and 8.33 p.m. When the questioning turned to the masks discovered at his house he asked for a solicitor. He said, and was so recorded: "I want to have my solicitor here before I say anything else." The interview was then terminated and his request referred to Superintendent Cresswell.
The decision of Mr. Cresswell is properly recorded in the custody record at 9 p.m. "Access denied. Serious arrestable offence. Likelihood of other suspects to be arrested being inadvertently warned. Considerable amount of money remains outstanding." At that time Mr. Cresswell did not know who the solicitor was to whom the appellant wanted access, nor did he mention the firearms, and, in fact, more than the £300 stolen in the robbery had been taken from the appellant's home.
Between 9.09 p.m. and 9.36 p.m. that same evening the appellant was again interviewed, having been told both by the custody officer and the interviewing officers that access to a solicitor was being denied. He again denied being involved in the robbery. On the following morning he was interviewed between 9.43 a.m. and 12 noon. He again denied being implicated in the robbery but confessed to the two burglaries. The interviewing officers then arrested him for those two offences. During this interview at 11.00 a.m. his mother was informed of his arrest.
At 1300 hours there is this record in the custody record over the signature of a woman superintendent. "Charging procedure delayed in order to secure evidence in connection with armed robberies. I am satisfied enquiries are being made diligently. Decision to be reviewed in 4 hours. Samuel informed." That decision can only relate to the two burglaries.
Presumably on hearing that her son had been arrested, his mother instructed a solicitor. The solicitor instructed was a Mr. Warner. He is the senior partner in a firm of Birmingham solicitors and a highly respected member of his profession. During that afternoon he made a number of unsuccessful attempts to speak to someone in authority at Ladywood Police Station.
At 4.30 p.m. the appellant was charged with the two burglaries. That was, of course, before the review time laid down by the Superintendent. Why the decision to charge was taken does not appear, nor by whom it was made. There is no record of any review of the decision to delay charging procedures. At 4.45 p.m. Mr. Warner phoned the police station and was told that his client had been charged with the burglaries but that he was still not allowed access to a solicitor. Between 5.22 p.m. and 5.40 p.m. he was again interviewed. At this interview he confessed to the robbery. At 6.20 p.m. he was charged with robbery. At 7.25 p.m. Mr. Warner visited the police station and had an interview with his client.
At the trial, in a trial within a trial, Mr. Escott- Cox, appearing for the appellant, submitted that on two grounds the denial of access to a solicitor was unjustified, both when the decision was first made at 9.00 p.m. on the 6th and, more seriously, when it was repeated at 4.45 p.m. on the 7th; that, accordingly, the interview in the evening of 7th ought not to have taken place in the absence of a solicitor and that the judge ought to have ruled that evidence as to that interview should not be adduced before the jury. The trial judge ruled against this submission and the trial proceeded.
At the trial the evidence for the prosecution came substantially under three heads; the identification evidence of Miss Werret, the masks found at the appellant's home together with the hidden pass-book and the evidence of the confessions made by the appellant at the last interview. The appellant did not give evidence but called two alibi witnesses.
The identification evidence of Miss Werrett was attacked on two grounds. First, that there were discrepancies between her witness statements to the police and between them and her evidence in the witness-box, particularly between her description of a canvass sack with stitching which the robber had pulled over his head and the knitted balaclava helmet taken from the appellant's house, which she had identified as identical with the one used by the robber. Second, that, on 27th June 1986, she had dealt with the appellant when he opened a normal savings account but had not recognised him when the robbery took place and that, on the Monday following the robbery, she had taken a deposit of £330 in cash for the appellant's account without recognising him. This she explained by saying that someone else might have deposited the money for him.
The sole ground of this appeal is that the learned trial judge was wrong in holding that the denial of access to a solicitor was justified; that he should have held on two grounds that it was not justified; and that, if he had so found, he ought thereafter to have exercised his discretion under section 78(1) of the Police and Criminal Evidence Act 1984, and ruled that the evidence relating to the final interview was inadmissible.
The scheme of the Act is not simple. The Act itself contains 122 sections. Section 66 imposes upon the Home Secretary the duty to issue codes of practice in connection, inter alia, with "the detention, treatment, questioning and identification of persons by police officers". Section 67(11) reads: "In all criminal…. proceedings any such code shall be admissible in evidence, and if any provision of such a code appears to the Court…. conducting the proceedings to be relevant to any question arising in the proceedings it shall be taken into account in determining that question."
The code of practice relating to detention etc., has been issued. It contains 17 paragraphs, notes for guidance and five annexes. "The right to legal advice" is dealt with in paragraph 6 and Annex B.
There is one other aspect of the scheme of the Act which it is convenient to mention at this point. The Act distinguishes between "serious arrestable offences" and all other offences. A serious arrestable offence is defined in section 116 and schedule 5. By section 116(2)(a) an offence specified in Part I of the schedule is always a serious arrestable offence. By section 116(2)(b) an offence under an enactment specified in part II of the schedule is always a serious arrestable offence....
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