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“There could be no question of pressure or intimidation. We agree with the learned judge that the
code simply was not intended to apply in such a context. In reaching that conclusion we should
ourselves go on to administer a caution.”
JUSTICE BLOFELD: It goes on to the next situation.
MR. TANSEY: My Lord, it is the paragraph after that. “In reaching that conclusion.”
JUSTICE BLOFELD: I am reading the paragraph before that.
MR. TANSEY: “The appellants were not being questioned by the police officers acting as such.”
JUSTICE BLOFELD: Yes. I am just considering that. What I am concerned about is if, there, the
Lord Chief Justice is saying that code was not intended to apply in such a context where it was on
equal terms and where there was no question of pressure or intimidation, I am not quite clear how
you say it applies to this case.
MR. TANSEY: My Lord, whether it is quite the same, the only difference being that one part is
(inaudible) and, of course, that is the case in the shop as well. The police officers are not saying that
they are police officers, they are pretending they are believed to receive stolen property. My Lord, it
is the next paragraph that is the important one:
“In reaching that conclusion, we should ourselves administer a caution. It would be wrong for police
officers to adopt or use an undercover pose or disguise to enable themselves to ask questions about
an offence uninhibited by the requirements of the code and with the effect of circumventing it.”
JUSTICE BLOFELD: That, really, it seems to me, is part of the entrapment argument rather than
the breach of the Codes.
MR. TANSEY: My Lord, we suggest that these two are intertwined, that they have used this pose
as a means of circumventing the safeguards of the caution as set out under the Act. My Lord, it is
put there in strong words about what the police must not do. It is wrong for them to adopt or use an
undercover pose or disguise. That is exactly what they did in this telephone conversation to enable
themselves to ask questions about an offence uninhibited by the requirements of the code and with
the effect of circumventing it.
JUSTICE BLOFELD: I am just going back to the earlier bit about the blackmailers. I can follow
that there could be argument, indeed I have heard argument on undercover police officers dealing
with blackmail, because they usually come into it once the blackmail threat has been made, as
alleged, so there were reasonable grounds for suspecting an offence had been committed.
I certainly heard argument, the case was about it, on your entrapment basis. I do not recollect any
authority saying that the code comes into them, because again there is no question of pressure.
There is no question of them being on unequal terms.
MR. TANSEY: My Lord, save, of course, by adopting what they have done, they have been able
to question the person which they should not do if they had done it properly in arresting him and then
they would have to caution him, because the value of using this pose, this disguise, is that the
defendant in this case would be misled as to who he is speaking with.
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