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shown on a number of occasions, that the circumstances of each case are almost always different.”
That was said by Auld J. in R. v. Jelen and Katz 90 Cr.App.R 456 at page 464.
The matter was very carefully considered by the Court of Appeal in the case of R. v. Christou and
Wright (1992) 95 Cr.App.R. at 264, to which I have already referred, and I propose to read a
passage from the judgement at page 269 first, which is the judgement of the court being given by
Lord Lane C. J. After citing page 269, in the middle of the page, the trial judge gives his reasons for
admitting evidence in that case. The Lord Chief Justice went on:
“The trick was not applied to the appellants; they had voluntarily applied themselves to the trick. 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 tricks 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 a 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.”
Then, subsequently, dealing with Code C, the Lord Chief Justice cited a passage which is cited in
the later case of R. v. Bryce, which is in transcript only. It reads:
“In our view, although Code C 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
or 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. The officer is perceived to be in a position of authority; the
suspect may be intimidated or undermined. The situation at “Stardust Jewellers” was quite different.
The appellants were not being questioned by police officers acting as such. Conversation was on
equal terms. There could be no question of pressure or intimidation by Gary or Aggi as persons
actually in authority or believed to be so. 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 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. Where they do so, it would be open to the judge to exclude the
questions and answers under section 78 of the 1984 Act.”
That is what, in essence, Mr. Tansey submits is the case here. He says that they, in fact, should have
arrested this man. They were taking advantage to get admissions that they would not have got if he
had been cautioned and they were doing it deliberately, and it is not in the public interest to perform
such tricks.
Against that it must be remembered in the early passage I cited in R. v. Christou and Wright there
are some circumstances in which ruses are in the public interest. I have borne in mind the two
transcripts of R. v. Bryce, that transcript is of a judgement given in front of Lord Taylor C. J.,
Macpherson and Turner J.J. on 26th June 1992, and also a judgement in R. v. Maclean and Kosten
on 19th February 1993 in front of Neill L. J., Tudor Evans and Clarke J.J. Having considered both
of those, and in particular the case of R. v. Bryce where the evidence was excluded by the Court of
Appeal, it is interesting to note that Lord Taylor C. J. quoted the precise passage in R. v. Christou
and Wright which I have just referred to, and in the factual circumstances there, came to the
conclusion that the series of questions there asked by an undercover officer, clearly are to defend
against the caveat that the court stated in R. v. Christou and Wright.
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