That is exactly what is not the case in the facts of our case. This trick was applied to the appellant. It
It is not every trick producing evidence against an accused which results in unfairness. There are, in
criminal investigations, a number of situations in which the police adopt ruses or trick in the public
interest to obtain evidence. For example, to trap a blackmailer, the victim may be used as an agent
of the police to arrange an appointment and false or marked money may be laid as bait to catch the
offender. A trick, certainly; in a sense too, a trick which results in a form of self-incrimination; but
not one which could reasonably be thought to involve unfairness. Cases such as Payne and Mason
are very different from the present case or the blackmail example. In Mason, as in Payne, the
defendant was in police custody at a police station. Officers lied to both the defendant and his
solicitor. Having no evidence against the defendant they falsely asserted that his fingerprint had been
found in an incriminating place in order to elicit admissions from him.
My Lord, if you turn over the page, please, and you will see about a third of the way down
Cautions as set out there. Then dealing with that:
It is accepted that Gary and Aggi had grounds to suspect each of the appellants of an offence. The
issue is whether the code applied to this situation at all. The learned judge concluded it did not. He
relied upon a passage in the judgement of this court in Jelen and Katz.
The provisions of the codes governing the detention, treatment and questioning of persons by police
officers are for the protection of those who are vulnerable because they are in the custody of the
police. They are not intended to confine the police investigation of crime to conduct which might be
regarded as sporting to those under investigation.
That passage is not quite accurate. It is true that the provisions of the code are very largely
concerned with those who are in custody, but not exclusively so. Thus, the first nine paragraphs are
concerned with those in detention. However, 10.1 and other paragraphs dealing with interviews are
not confined to those in custody. The learned judge recognised that the quoted passage required
some qualification. His amendment was that the code was intended to apply to people under
detention or people for whom detention has become, as it were, imminent. Even that amendment
may be too restrictive.
Clearly it is suggested that the code was relevant and applied to people for whom detention was
becoming, as it were, imminent. It then continues citing Hodgson J. in the well known case of
Keenan. My Lord, continuing:
In our view, although the code extends beyond the treatment of those in detention, what is clear is
that it was intended to protect suspects who are vulnerable to abuse or pressure from police officers
who may believe themselves to be so. Frequently, the suspect will be a detainee. But the code will
also apply where a suspect, not in detention, is being questioned about an offence by a police officer
acting as a police officer for the purpose of obtaining evidence. In that situation, the officer and the
suspect are not on equal terms.
JUSTICE BLOFELD: Were they not on equal terms in this conversation?
MR. TANSEY: My Lord, it certainly would seem to be the case on the telephone. I do not think I
can argue they are not on equal terms because they are talking. The appellants were not being
questioned by police officers acting as such. Conversation was on equal terms. My Lord, that is in
terms of the actual conversation in the shop itself.