CRIME — Evidence — Admissibility — Police officers noting down words spoken by defendant constituting alleged public order offence — Defendant given no opportunity to read or consider notes — Justices finding breach of Code C and excluding evidence of words used as unfairly prejudicial — Whether Code C applying to words constituting alleged offence — Whether words constituting alleged offence as noted in officers’ notebooks to be shown to defendant for consideration — Whether evidence rightly excluded — Police and Criminal Evidence Act 1984 s66 Codes of Practice, Code C, para 11.13

Director of Public Prosecutions v Lawrence

QBD: Auld LJ and Collins J: 16 July 2007

The provisions of Code C of the Codes of Practice under s 66 of the Police and Criminal Evidence Act 1984 were not directed to what a defendant was alleged to have said as part of the conduct constituting the alleged crime but to what a defendant was alleged to have said on or after arrest.

The Divisional Court of the Queen’s Bench Division (Auld LJ and Collins J) so held allowing an appeal by way of case stated by the Director of Public Prosecutions against the decision of the Warley Justices on 13 September 2006 to dismiss an information laid against the defendant, Billy Oliver Lawrence, charging him with using threatening, abusive or insulting words or behavior within the hearing or sight of a person likely to be caused harassment alarm or distress thereby, contrary to s5 of the Public Order Act 1986. The defendant had applied under s78 of the Police and Criminal Evidence Act 1984 to exclude the evidence called by the prosecutor of the words allegedly used by him in the commission of the alleged offence, on the basis that admitting it would have such an adverse effect on the fairness of the proceedings that it should be excluded. He claimed that he had not been given an early opportunity to read the police record of what he was alleged to have said and either to sign it as correct or to consider it inaccurate in accordance with para 11.13 of Code C of the Codes of Practice under s 66 of the Police and Criminal Evidence Act 1984. The justices, having considered the matter by way of preliminary issue, had concluded that the code had been breached and that the admission of the evidence would have an adverse effect on the fairness of the proceedings and so they had excluded it. The question for the court was whether the justices had erred in law when they had excluded evidence of the words spoken by the defendant which were said to have formed part of the charge he faced under s5 of the Public Order Act 1986, on the basis that such words fell within the scope of para 11.13 of Code C?

AULD LJ said that, whilst the defendant had not been interviewed either before or after charge and had not been invited at the police station to challenge the police notebooks, he had been given the opportunity when charged to deny the offence, which he had, he had seen the witness statements and he had had an opportunity at the hearing to challenge the evidence. Para 11.13 of Code C applied to words spoken on or after arrest, where a defendant volunteered information. A defendant should always be asked to consider the record of such comments and whether it was accurate. Code C thus applied to statements which did not themselves constitute the offence. It was intended to protect a suspect after the commission of an offence from false attribution of statements to him. The justices had therefore been wrong to exclude under s 78 the evidence of the words used by the defendant in the commission of the alleged offence.

Appearances: Talbir Singh (Crown Prosecution Service, Wolverhampton) for the Director of Public Prosecutions; Rambert de Mello and Danny Bazini (McGrath & Co Solicitors, Birmingham) for the defendant.

Reported by: Jessica Giles, solicitor