R Vijay Karia v The Chief Constable of Hampshire Contabulary

JurisdictionEngland & Wales
JudgeMrs Jusice Lang,Mrs Justice Lang,MRS JUSTICE LANG
Judgment Date15 December 2015
Neutral Citation[2015] EWHC 4083 (Admin)
Docket NumberCO/4099/2014
CourtQueen's Bench Division (Administrative Court)
Date15 December 2015

[2015] EWHC 4083 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand

London WC2A 2LL

Before:

Mrs Justice Lang

CO/4099/2014

Between:
The Queen on the application of Vijay Karia
Claimant
and
The Chief Constable of Hampshire Contabulary
Defendant

Mr S Field (instructed by Rustem Guardia) appeared on behalf of the Claimant

Miss S Leek QC (instructed by Roger Trencher, Force Solicitor, Hampshire Constabulary) appeared on behalf of the Defendant

Mrs Jusice Lang
1

The Claimant seeks judicial review of the dismissal of his complaint against a police officer in the Hampshire Constabulary for his failure to comply with paragraph 11.13 of Code C of the Codes of Practice, issued pursuant to section 66 of the Police and Criminal Evidence Act 1984 ("PACE", in not recording his comments after being cautioned for a suspected driving offence.

2

The Claimant was granted permission by Deputy Judge Mr John Howell QC at an oral hearing, after permission was initially refused on the papers.

The facts

3

On 23 January 2013 the Claimant was stopped by Police Constable Greenhow of the Hampshire Constabulary because he was seen using his mobile phone when driving. When his licence details were checked at the scene, it emerged that his licence had expired. PC Greenhow completed a T60 mobile phone fixed penalty notice form and explained it to him. He told him he was being reported for using the mobile phone when driving and administered a caution in the standard terms:

i. "You do not have to say anything, but it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence."

4

PC Greenhow stated in his witness statement that he asked the Claimant if he had a reply to which the Claimant said "I don't think your three things are big enough", gesturing to the small box on the fixed penalty notice form available for recording replies.

5

PC Greenhow said that he wrote down the Claimant's words on the form, explained the fixed penalty notice to him again and read his reply back to him. The Claimant then said he wanted to give a longer reply and asked him to write it down in his notebook, but PC Greenhow said that he had already recorded his reply on the ticket. PC Greenhow then informed him that he was being reported for not having a valid driving licence and cautioned him again. On this occasion, the Claimant made no reply.

6

As the Claimant has never made a witness statement in these proceedings setting out his own account of what occurred, I accept the account given by PC Greenhow.

7

The Claimant was prosecuted and the charges were found proved in his absence. He failed to attend court on three occasions between August 2013 and September 2014 and no substantive defence was ever put forward. He was fined and his licence was endorsed.

8

On 21 January 2014, a year after the event, the Claimant filed a formal complaint against PC Greenhow complaining that there had been a breach of paragraph 11.13 of Code C. In his letter of complaint he said:

i. "PC 23218 alleged a mobile phone offence and so he wrote out ticket. However, when I denied the offence, he got a little upset. When I asked him to enter my full detailed reply in his notebook because his standard box on his standard form was too small and then allow me to check and sign as to its accuracy as per Code C paragraph 11.13 of PACE, he refused."

9

The complaint was investigated by Mr Nicholas Harris, who is a professional standards investigator employed by the Hampshire Constabulary. In his decision letter dated 1 May 2014, he did not uphold the complaint. He had been advised by Mr Dadd of the Hampshire Constabulary that since PC Greenhow was not conducting a formal interview, Code C paragraph 11.13 did not apply.

10

The Claimant appealed, but his appeal was not upheld. The decision letter from Detective Chief Inspector Dawson, an independent appeals officer in the professional standards department, set out an opinion from Mr Stephen Field of counsel. She then stated that she had sought advice from Mr Dadd, Hampshire Constabulary's PACE and custody adviser, who gave advice in the following terms:

i. "The point Mr Dadd was making was that section 11 of Code C related to 'interviews — general'. The whole of that section deals with different aspects of a formal interview and 11.13 deals with comments made that are ancillary to the interview but have a bearing on the case (very much in the same way as 'significant statements').

ii. His interpretation of this part of Code C is that it does not apply to an officer simply reporting a person for an offence when no interview takes place, particularly where the comment made after being reported has no practical bearing on the case. He appreciated that this is a matter of interpretation and that the barrister Mr Field has a different view. In Mr Dadd's view, the circumstances of the case that Mr Field refers to are totally different from the one we are looking at. It could be argued that it could be applied in principle, but in reality in practice it is so far removed from the circumstances of this case that it is neither helpful nor, in his view, particularly relevant. The case of Coelho does not make any comment as to the application of Code C 11.13 to replies made after caution."

The law

11

Paragraph 11.13 of Code C provides:

i. "A written record shall be made of any comments made by a suspect, including unsolicited comments, which are outside the context of an interview but which might be relevant to the offence. Any such record must be timed and signed by the maker. When practicable the suspect shall be given the opportunity to read that record and to sign it as correct or to indicate how they consider it inaccurate. See Note 11E."

12

Note 11E states:

i. "Significant statements described in paragraph 11.4 will always be relevant to the offence and must be recorded. When a suspect agrees to read records of interviews and other comments and sign them as correct, they should be asked to endorse the record with, e.g. 'I agree that this is a correct record of what was said' and add their signature. If the suspect does not agree with the record, the interviewer should record the details of any disagreement and ask the suspect to read these details and sign them to the effect that they accurately reflect their disagreement. Any refusal to sign should be recorded."

13

Paragraph 11.4 and 11.4A of Code C provide:

i. "11.4. At the beginning of an interview the interviewer, after cautioning the suspect… shall put to them any significant statement or silence which occurred in the presence and hearing of a police officer or other police staff before the start of the interview and which have not been put to the suspect in the course of a previous interview… The interviewer shall ask the suspect whether they confirm or deny that earlier statement or silence and if they want to add anything.

ii. 11.4A. A significant statement is one which appears capable of being used in evidence against the suspect, in particular a direct admission of guilt. A significant silence is a failure or refusal to answer a question or answer satisfactorily when under caution, which might, allowing for the restriction on drawing adverse inferences from silence, see Annex C, give rise to an inference under the Criminal Justice and Public Order Act 1994, Part III."

14

In R v Coelho [2008] EWCA Crim 627 the Court of Appeal Criminal Division held there had breach of paragraph 11.13 when a police officer had a conversation in Portuguese with a suspect detained at the police station, but he did not make a record of it as originally stated to him in Portuguese, nor did he give the suspect a chance to read, correct and sign it. The conversation took place several hours after the formal interview and when the suspect was being brought up from the cells to be charged. The court referred to the case of R v Keenan [1990] 2 QB 54 in which the Court of Appeal emphasised the importance of compliance with the requirements to make a contemporaneous record of an interview to prevent verballing. Keenan was not concerned with the distinction between comments made inside and outside a formal interview.

15

It was common ground that, although a breach of the PACE code is not of itself a disciplinary offence, it may amount to "misconduct" under the Police (Conduct) Regulations 2012 depending on all the facts of the case.

Conclusions

16

In my judgment, it is plain from the express words of paragraph 11.13 that it is intended to apply to comments made "outside of the context of an interview". The Hampshire Constabulary erred in stating that it did not apply outside a formal interview. It does. The purpose of this provision is to ensure that informal comments are recorded and checked with the suspect to reduce the risk of verballing and later disputes in court about what was or was not said at the scene or outside of an interview.

17

The limitation on the scope of the requirement in paragraph 11.13 is that it only applies where "the comments might be relevant to the offence". So comments which are irrelevant need not be recorded. I do not accept that the duty only applies to incriminating comments. It also includes exculpatory comments. These may be of particular importance given the risk of adverse inferences if a matter is later relied on by way of defence, but was not mentioned.

18

I also consider that the phrase "comments which might be relevant to the offence" in paragraph 11.13 is wider in scope than the term...

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