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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Devani, R v [2007] EWCA Crim 1926 (30 July 2007) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2007/1926.html Cite as: [2007] EWCA Crim 1926, [2008] 1 Cr App R 4

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)

		Royal Courts of Justice Strand, London, WC2A 2LL
		30/07/2007

Lord Justice Maurice Kay :

1. The appellant was a young solicitor aged 25 in January 2005, at the time of the events the subject of this appeal.
2. On 22 June 2005, at the Central Criminal Court, before HHJ Focke QC and a jury, the appellant was convicted of a single count of perverting the course of justice, count 7 of the indictment. There were three co-accused. One of these was Timothy Merchant. He was a client of the firm for which the appellant worked, Arani & Co. On the same occasion he was also convicted of two counts of attempted murder and one count of possession of a firearm with intent to endanger life. Merchant was also convicted on count 7, another co-accused, Mohammed Choudury, pleaded guilty to count 7, and a fourth co-accused was acquitted.
3. The Particulars of the Offence on count 7 were that they "between 1^st and 26^th day of January 2005 … assisted in making arrangements for perjured evidence to be given on behalf of … Merchant who was then on remand … awaiting trial on a charge of attempted murder".
4. The appellant was sentenced on 29 September 2006 to 12 months imprisonment. She was released on 28 December 2006. She appeals to this Court against conviction by leave of the single judge.
5. All the acts which the appellant was alleged to have committed were done on 25^th January 2005 while she was visiting Merchant in the legal interview area at HM Prison Belmarsh for the purpose of taking his instructions. The prosecution case was that she took possession from him of two sealed letters. One of these was of a personal nature to his girl friend, but the other ("the letter") was addressed to the co-accused Mustafa Abdullah (who was acquitted on count 7). It contained what the prosecution alleged was a plan to create false evidence to deal with part of the Crown's case against Merchant. The part of the Crown's case to which the letter related was that a piece of paper had been found in a red Toyota car which linked Merchant to the attempted murder of Billy Charlton in August 2002, the subject of Count 1. The letter contained an account of how the paper came to be in the car, which, if true, tended to undermine the Crown's case.
6. The issue in respect of the piece of paper in the red Toyota did not arise until shortly before Christmas 2004. Until then the Crown had mistakenly relied on other evidence linking Merchant to the murder, and this other evidence was not abandoned by the Crown until 24^th January 2005.
7. The table at which the appellant and Merchant were seated in the prison interview room was covered by a CCTV camera which was monitored by Pauline Sutherland, an Operations Support Grade Officer at the prison. The images showed Merchant pushing what appeared to be a piece of paper across the table which the appellant took and placed on a pile of papers. A few minutes later Ms Sutherland saw her place the papers, including what Merchant had pushed across to her, into a folder which she took with her when the interview ended.
8. The Crown's case was that the appellant knew specifically that the contents of the letter related to the paper in the red Toyota and that she and the co-accused was each an active and willing participant in a plan to fabricate evidence so as to exonerate Merchant from the offence for which he was on remand. The interview was not monitored for sound. But it was the Crown's case that during the conference there was a discussion about perverting the course of justice, even if it was a short discussion.
9. The judge directed the jury that before they could convict they had to be sure that the defendant whose case they were considering knew at least of a plan to create false evidence, and that the plan involved providing a false explanation for the existence of the piece of paper in the red Toyota car, agreed to join that plan and did so with the requisite intent.
10. Merchant admitted passing the letter to the appellant, but denied that that act tended to pervert the course of justice. Merchant's defence at trial was that the letter contained only a true statement of facts which he wished Abdullah to give in evidence. The appellant admitted she received the folded A4 paper and that there was written on it a telephone number. She said that that was the telephone number of Merchant's mother which he had given her for the purposes of her obtaining information relevant to a bail application. She said that she had no knowledge of two envelopes being concealed in the paper, and no knowledge of the contents of the letter. She said she had no knowledge of the alleged plan and did not agree to help with it.
11. Ms Sutherland described her main purpose in monitoring the interview as being for the safety of all persons and to ensure that nothing is passed to and from an inmate. Having seen what we have described, Ms Sutherland left the monitoring room and approached the appellant, who had by that time left the interview room. There followed an exchange in which the appellant was asked if she had taken anything and denied having done so. Ms Sutherland called a colleague of the same grade, Elaine Marsland. The appellant was searched and two envelopes were found inside a folded piece of A4 paper which was in her file. The letters were opened, and a prison officer, Mr Labatt was called. By this time Mrs Arani, the principal of Arani & Co was present. She happened to be in the prison for the purpose of interviewing another client of the firm. The letters in the appellant's file were read, and then handed to the police liaison officer.
12. The appellant was permitted to see Merchant again during the afternoon of 25^th January and to continue conferences with him at the prison on 27^th and 28^th January.
13. The letter had written upon it the name Mustafa and had attached to it a Post It note. The note read: "[telephone number] can u phone him and ask him to come and meet u today, somewhere local to Belmarsh, not the car park, to pick up letter petrol station etc" The letter started with formal greetings. The first substantive paragraph began: "There's a small problem that needs sorting out". Later the letter referred to the paper in the red Toyota and included the words "It does not look good for man does it?" There then followed a suggestion as to "what will be best for Yasin to say", followed by a complicated account of the red Toyota being for sale and contacts between Merchant's wife and Yasin's who know each other, which would explain how the piece of paper came to be in the car.
14. The appellant was arrested on 24^th February when she attended Hendon Police Station to examine disclosure material in connection with Merchant's case. A file that she was carrying that day (which was not the same as the one she had had on 25^th January) was seized by the police and sealed.
15. The appellant was interviewed on the day of her arrest. She said she had qualified as a solicitor in November 2004 and had worked for Arani & Co since August 2002. She said that the main area of her practice had been family law. She said that she had had the conduct of Merchant's case since December 2004, under the supervision of Mrs Arani. She said that on the morning of 25^th January she and Merchant had been going through a lot of statements. She explained that she took the piece of paper that Merchant had passed to her because she thought that it had on it the telephone number of Merchant's mother, which she did not already have, and which she required in connection with a bail application. She said that at the time of taking it she did not realise that there was anything in it. She gave a version of the answers she had given to the prison officers which differed from their account. She explained the difference by saying that the questions were asked in a noisy area and the officers must have failed to hear all that she had said. According to her she had said: "All he's given me is his Mum's telephone number". She agreed that the instructions on the Post It note appeared to be instructions for her. She stated that Merchant had not mentioned the letters to her and that Mustafa was not a name that rang a bell with her.
16. Following the interview of the appellant by the police the file which the police had seized and sealed was given to independent Counsel and unsealed. He removed certain documents which were made available to the appellant, in particular a note she had made of the conference with Merchant on the afternoon of 25^th January. That document was referred to as AJD/20. It is a note of the account given in the letter as to how it is suggested the incriminating paper came to be found in the red Toyota. Accordingly, had Merchant had an opportunity to claim privilege in respect of it, he could have done. It was relied on by the appellant as showing that she did not know before the afternoon what was in the letter.
17. At the interview on 25^th July 2005 the appellant submitted a prepared statement which did not take the matter further.
18. During the course of the interview on 24^th February it is common ground that the officer asked questions including the word 'alibi', but used the word incorrectly. The officer used the word alibi to mean to make up an excuse for someone, whereas in fact an alibi is a defence to the effect that the accused was not at the place where he was said to have committed the crime. Accordingly it was submitted at trial that the appellant was seriously misled by the officer in the interview. However, the appellant was asked about this and said that if in the interview the word 'alibi' had been replaced by the words 'false evidence' it would not have changed her answers.
19. The effect of Merchant's defence (admitting the passing of the letter and asserting that the account given of events in the letter was true) was that he was able to and did advance a claim to legal professional privilege in relation to the interview with the appellant, including in relation to that part of the interview (if any) in which the letter was referred to. He did not waive privilege. Mr Farrell QC appeared for the appellant at trial and before us. At the trial he did not contest that Merchant had a claim for privilege, but he did contest the scope of it. He submitted that the privilege did not extend to the question whether a particular topic was discussed between Merchant and the Appellant at the interview, with the result that Merchant could not refuse to answer, if asked whether a topic had been discussed. The Judge ruled that Mr Farrell could ask such a question, but that Merchant could reply that he claimed privilege, and Mr Farrell would be bound by that answer. There has been no appeal from that ruling. There was no dispute but that Mr Farrell was entitled to ask about topics that were not discussed at the conference on the morning of 25^th January.
20. Mr Farrell did ask Merchant what was discussed at the conference on the morning of 25^th January. He claimed privilege when asked whether there was any discussion about the contents of the letter, saying that he was not falsifying evidence. That response was consistent with there having been, according to him, a discussion about the contents of the letter. Accordingly, there remained at trial at least the possibility of a conflict between Merchant and the appellant as to whether there had been a discussion between them of the contents of the letter. There was a possibility of him saying that there had been discussion of the contents of the letter, while she did say that there had not. The effect of the judge's ruling on privilege was thus that, if there was indeed such a difference in the account he would have given if he had not been able to claim privilege, then it did not become clear to the jury. This can only have assisted the appellant. If on the other hand his account would have been the same as hers, the question arises whether she has lost anything by the jury not being able to hear that.
21. It was, of course, recognised at the trial by all parties (and the Judge so directed the jury) that a communication is not privileged if it is in furtherance of a criminal purpose. Accordingly the position as it is following the conviction of Merchant is not the same as it was during the trial of himself and the appellant. The trial proceeded on the footing that Merchant's case was that the letter was not in furtherance of a criminal purpose. But the effect of his conviction on count 7 is that the jury must have been satisfied that it was. Merchant has not appealed against his conviction. Accordingly, in the light of Merchant's conviction, it can be seen that his claim to privilege in respect of any communication with the appellant concerning the letter was a bad claim, and that he could not now continue to claim privilege in respect of any such communication. That is to say, the appellant could not now be prevented on grounds of Merchant's legal professional privilege from referring to any such communication, or any note she may have made of any such communication, if she chose to do so. She did not do so before us, no doubt because it was her case that there had been no such communication.
22. The judge directed the jury that given Merchant's choice not to waive legal professional privilege, the appellant was not entitled to rely on the contents of the files either (i) to give evidence of any communication that is contained in the files and is subject to privilege or (ii) to produce in evidence any communication from the files that is subject to privilege. However, as he had ruled, and as he told the jury, she was entitled to rely upon the contents of her interviews with the police on 24^th February and 25^th July 2005 and the document AJD/20 was read to the jury by her counsel.
23. While that was the position in relation to Merchant's claim to privilege at trial, the position was different at interview. As appears from the summary of the interview that we have given, the appellant had in fact answered questions in interview about communications between herself and Merchant during the conference on the morning of 25^th January. She had said that Merchant had asked her to contact his mother. She was allowed at trial to refer to what she had said in interview.
24. The grounds on which leave to appeal were granted were that the trial was unfair because (1) when Merchant gave evidence the prosecution did not put to him that he told the applicant on the morning of 25^th January that the letter was a request for the production of false evidence; (2) nonetheless, this allegation was put by the prosecution to the appellant when she gave evidence; and (3) she was prevented by Merchant's claim to privilege from (a) questioning Merchant and giving evidence herself about what was said in the morning conference in the immediate leading up to, during, and immediately after the passing to her of the A4 sheet folded round the letters; and (b) adducing into evidence that part of her attendance note taken during this part of the conference, including anything noted concerning instructions to ring Merchant's mother in connection with bail. Leave was refused in relation to a number of other grounds. One of the grounds in respect of which leave was refused was that the evidence of the prison officers who questioned the appellant at the prison was not admissible, or should not have been admitted. The application for leave on this ground was renewed before this Court.

1. The legal professional privilege issues

25. As we have observed, no point is taken on this appeal about the correctness of the judge's basic approach to the claim of legal professional privilege asserted and maintained by Merchant. As things developed, Merchant did not seek to prevent the receipt into evidence of what the appellant had said under caution when interviewed by the police. Moreover, she was permitted without restraint to repeat and confirm the truthfulness of what she had said in interview when she came to give evidence. To this extent, she was able to testify as to what had taken place when she was with Merchant in the interview room at Belmarsh. Essentially, she gave an account of how she had taken a sheet of folded paper with his mother's telephone number on it from Merchant but had not noticed that, within the folded paper, he had included the letter to Mustafa or the one to his girlfriend. In other words, her defence was that, at no stage before the intervention of the prison staff was she aware of the existence, let alone the contents of either letter. It simply cannot be said that the appellant was unable to give evidence to the jury which properly explained her defence.
26. As a result of Merchant's assertion of legal professional privilege, the appellant was not able to give evidence (beyond what she had said in interview) as to what had been said between Merchant and herself in the morning conference. Nor could her counsel cross-examine Merchant about that. What we have to assess is whether she was seriously and unfairly prejudiced by those inhibitions.
27. It is apparent from the transcript of the evidence of Merchant that both he (understandably) and Mr Farrell had difficulty in understanding the limits and constraints of legal professional privilege. The flow of the evidence was interrupted on a number of occasions when it became necessary for the position to be clarified. Mr Farrell persisted in putting questions reflecting his instructions that Merchant had said nothing about wanting the appellant to take letters out of the prison, had not discussed the contents of any letters and had not discussed the falsification of evidence. In answer to such questions Merchant repeatedly said that he had not in fact falsified the evidence. When Mr Farrell came to ask him about the afternoon conference, following the seizure of the letters, this exchange ensued:

"Q It was obvious to you in the afternoon that she had no idea what was in the sealed letter in the morning and that is why she was asking you in the afternoon, is that right?

A Yes."

28. Notwithstanding the assertion of legal professional privilege, that was confirmation from Merchant of a central feature of the appellant's defence. The point at which the assertion of legal professional privilege withstood all probing was in relation to whether there had been any conversation in the morning about the letter or its contents. Although Merchant in his evidence held to the line that he would not give evidence on that subject because of his privilege, there is one passage where, in answer to questions from Mr Dennis QC on behalf of the prosecution, Merchant said that "words were exchanged" on the subject of the letter. The position at the conclusion of all the evidence was that the appellant's evidence that she had known nothing of the letter at the material time remained uncontradicted apart from the brief comment by Merchant to which we have just referred. Her evidence that she knew nothing of the contents of the letter had effectively been confirmed by Merchant. As a result of the assertion of privilege, any conflict that might have emerged from the appellant and Merchant giving unrestrained accounts of what had transpired between them in the morning conference was avoided. Mr Dennis submits, and we accept, that that could, on balance, only have advantaged the appellant. One does not have to read very far between the lines to conclude that, if unrestrained evidence had been given by both principals, conflict would have emerged. There is a telling passage in part of the transcript of legal argument in the absence of the jury where Mr Davies QC, on behalf of Merchant, was making submissions about the implications of the assertion of privilege. Dealing with the questions which Mr Farrell was seeking to ask of Merchant, Mr Davies said:

"I think that in relation to some of the things he is seeking to ask questions [about], the answer may be unhelpful and, if further explored may be even more unhelpful. I wonder whether this is not a case where the state of the evidence is about as good as it can get for his client."

The snippet about "words were exchanged" to which we have referred, tends to confirm that.

29. As a result of the way in which the matter proceeded, the appellant was able to give her evidence denying knowledge of the presence of the letters in the folded paper, safe in the knowledge that the prosecution would not be able to ask Merchant about any conversation which occurred when he had handed over the folded paper containing the letter. She also knew and it was a fact that the prosecution could not cross-examine her about any conversation. Moreover, in addition to being able to testify as to the essence of her defence, the appellant was also able to produce a document which went before the jury notwithstanding the assertion of legal professional privilege. It was her contemporaneous note of what transpired between Merchant and herself when she was permitted to resume her conference with him in the afternoon, following the seizure of the letters. The note (AJD/20) on its face was consistent with her not having known of the contents of the letter until the afternoon. It had become available evidentially because Special Counsel, instructed to act in the interests of the appellant, had extracted it from the file of Arani and Co, whereupon it had been disclosed to the appellant and her advisers with the approval of the court.
30. Thus, a clear picture emerges that, notwithstanding the technical difficulties, the appellant was able to advance her case in evidence and she did receive some confirmation of it from Merchant in his evidence. The no-go area gives rise to two possible interpretations. The first, and by far the most probable, is that the appellant was in fact advantaged by Merchant's assertion of privilege because it concealed a conflict between their cases and neither of them could be fully cross-examined about it. The second, and far less likely, interpretation is that, if he had waived privilege, Merchant would have given evidence supporting the appellant's assertion that she did not even know of the existence of the letters when Merchant passed them to her. However, one is bound to ask: what would have been the value of such evidence from Merchant? It would have been evidence from a man who was wholly disbelieved by the jury on the central issue of whether he had composed the letter with a view to procuring false evidence. Of course, he was also disbelieved on issues relating to attempted murder. It is difficult to see how confirmatory evidence from him could have advantaged the appellant, a young solicitor of previous good character. For all these reasons, we have come to the conclusion that the appellant was not materially disadvantaged by the assertion by Merchant of legal professional privilege. In many ways, she benefited from it.
31. Nor are we impressed by the submission that the appellant was disadvantaged by being unable to rely upon the contents of the file of Arani & Co. We have related how Special Counsel had access to it and produced AJD/20 which was used on behalf of the appellant at trial. We are told that the appellant had access to the file covering the relevant period. No application was made or issue raised about any document within the file which might have further assisted her case. So far as the morning conference with Merchant was concerned, two things strike us as obvious. The first is that the evidence about the red Toyota was bound to have been discussed because that had recently become, for the first time, a matter of crucial significance. The second is that, whatever was said about it, if the conversation had touched upon the falsification of evidence, there would be no note to that effect. It follows that the absence of such a note could not, in any event, provide strong support for the appellant's case.
32. Mr Farrell submits that, over and above consideration of the detailed matters on this issue, we ought to stand back and observe how the assertion of legal professional privilege adversely affected the fairness of the trial so far as the appellant was concerned. He refers to the repeated interruptions to the cross-examination of Merchant and to the evidence in chief of the appellant. He suggests that all this was distracting for the jury and prejudicial to his client. We can understand that there may have been a degree of frustration on all sides but we do not consider that there was any significant unfairness. We also consider, as we indicated earlier, that Mr Farrell's own approach was causative of more interruptions than were truly necessary.
33. We record that Mr Farrell sought to rely on Medcalf v Mardell [2002] UKHL 27, [2003] 1 AC 120. We do not consider that it requires any different view of this case than the one we have expressed.
34. For all these reasons, we reject the ground of appeal raising issues relating to the assertion of legal professional privilege.

2. The evidence of the prison officers

35. The second issue concerns a ruling by the trial judge refusing to exclude certain of the evidence of three witnesses, Miss Sutherland, Miss Marsland and Mr Labatt. The single judge refused leave on this ground but, having heard substantive argument on it, we grant leave to pursue it and we now deal with it in substance.

Miss Sutherland

36. Miss Sutherland was an operations support grade officer. Her duties were to support officers in any capacity required including searching visitors during legal visits and closed circuit television monitoring. In cross-examination she said she could be required to investigate and detect possible crime, for example knives and other things and unsolicited and uncensored letters but she also said "I did not have any investigative role because if such a situation arose I would have to call a senior officer".
37. On 25 January she was engaged in monitoring legal visits on the silent CCTV monitoring coverage. She noticed that Merchant appeared to be sliding towards the appellant a white envelope. In due course she picked up, or slid, that envelope towards her, placing it on one side of her file but, shortly before she was going to leave, she placed that document or piece of paper inside her file.
38. When the appellant was leaving, Miss Sutherland approached her and said "Have you taken anything from the inmate to take out for him" to which her answer was "No". Miss Sutherland repeated the thrust of her question saying, "Are you aware that you are not allowed to take anything out for any of the inmates" to which the appellant answered "Yes, but I do not have anything".

It was suggested that Miss Sutherland misheard what was being said in that it was put to her that the appellant actually said that she had been given a piece of paper with Merchant's mother's telephone number written on it.

39. Miss Sutherland shortly afterwards wrote up her account of this conversation in an attendance document which was submitted to the security staff who looked at it on the following day 26 January. She said that she had observed what potentially was a criminal offence but she said that she did not know what was in the documents. She was unaware of the detailed content of the PACE codes of practice.

Miss Marsland

40. Miss Sutherland, as a result of what she had observed and her conversation with the appellant, contacted a colleague, Miss Marsland, who was of the same grade. She did not regard herself as having a duty to investigate whether an offence had been committed. Miss Marsland attended, the appellant was searched and two envelopes were found inside a folded piece of A4 paper which was in her file. With the permission of the appellant one of those envelopes was opened and it was plain to those reading that it was not simply a private letter. As a result of this, Miss Marsland got in touch with a more senior person, one of the prison officers, Mr Labatt. He was not a senior prison officer but a prisoner officer nonetheless.
41. Miss Marsland said that when she carried out the search she knew it was a criminal offence to take out such letters but had never heard of the Codes. She said "I am entitled to ask the question 'have you been given anything' and if I receive an answer 'Yes' I can then call a senior officer". When Miss Marsland had carried out her search she asked the appellant whether an inmate had given her the letters to bring out to which her reply was "Yes I know that bringing out sealed letters is against prison rules".

Mr Labatt

42. Mr Labatt is a prison officer. He is not a senior officer. On this occasion he was in charge of the legal visits area as part of a team of four officers. When he received the telephone call from Miss Sutherland he thought there had been a breach of security. His statement reads "I said to the solicitor who had the letters, 'why have you taken these letters as it is a breach of security'. She said something like 'I didn't realise it would be a problem.' The solicitor then told me that the letters were regarding her client's case".

He confirmed that the letter was read both by the appellant and Mrs Arani. He then sealed those letters and they were handed to the police liaison officer. He accepted he thought potentially the appellant was guilty of a criminal offence but could not be sure because he had received the reply that it was part of legal documents and he said that he thought the solicitor might be right and, in any event, it was not his decision to decide whether or not a criminal offence had been committed. He said he did not have an investigative function, as far as he was concerned, within the prison.

The ruling

43. The judge, having rehearsed the evidence sought to be excluded, made reference to the various authorities cited to him including R v Bayliss 98 Crim App. R. 235 and R v Ristic 2004 148 SJ 942. He said as follows from p. 12B of the ruling:

"I have come to the conclusion, having heard the evidence of each of those three witnesses, that there was no statutory or contractual duty upon them to investigate, they were simply carrying out their duties as to searching and if anything further had come to mind then they would have contacted the senior officer concerned and the police liaison officer who would then have carried out a proper investigation. It seems to me there was no duty upon any of those three to caution this lady but if I am wrong about that I turn to consider whether or not there has been a breach of the spirit of the codes and whether it would be unfair to allow the matter to proceed.

In considering the background to this case I bear in mind that there was nothing oppressive in the conduct of any of those three prison officers. I bear in mind next that Ms Devani is not a vulnerable person and she had no mental disabilities or anything of that nature, she is a professional solicitor who has, it seems, been to Belmarsh prison on a number of occasions and must be presumed to know what the rules are in relation t the taking in and taking out of documents. It seems further that Ms Devani has conducted other criminal matters relating to visits to that prison. Also, the prison officers were at all material times acting within the scope of their authority. Further, the exchanges between Ms Devani and the prison officers were short and clear and they were noted down very shortly afterwards, in effect they were almost contemporaneous notes. Further, and this a minor point, I note that throughout on each of the occasions when Ms Devani was seen by the three witnesses to whom I have made reference it seems Mrs Arani, her principal, was present throughout and it did not seem appropriate at that stage to Mrs Arani to warn her employee not to respond or to demand that there should be for example any form of caution.

I am satisfied, balancing all the considerations that I must, that it would not be unfair for this matter to be adduced by the prosecution if they wish to do so. Indeed, it seems to me that it would be unfair if it were not adduced and accordingly I give leave to the prosecution to adduce this evidence if they wish."

The law

44. Section 66 of the Police and Criminal Evidence Act 1984 (PACE) gives the Secretary of State power to issue codes of practice in connection with the exercise by police officers of statutory powers of search, arrest, detention and so on. Section 67(9) of PACE provides:

"Persons other than police officers who are charged with the duty of investigating offences or charging offenders shall in the discharge of that duty have regard to any relevant provision of …a code".

45. Paragraph C 10.1 of the Code provides:

"A person whom there are grounds to suspect of an offence,…must be cautioned before any questions about an offence, or further questions if the answers provide the grounds for suspicion, are put to them if either the suspect's answers or silence…may be given in evidence to a court in a prosecution. A person need not be cautioned if questions are for other necessary purposes, e.g.:…

(c) in furtherance of the proper and effective conduct of a search e.g. to determine the need to search in the exercise of powers of stop and search or to seek cooperation while carrying out a search… "

There are other relevant provisions of the code for example: C 11.1 A questioning comprising an interview must be carried out under caution; C 11.7 (a) an accurate record must be made of each interview whether or not it takes place at a police station; C 11.8 if a written record is not made during the interview it must be made as soon as practicable after its completion; C 11.9 written interview records must be times and signed by the maker; C 11.10 if a written record is not completed during the interview the reason must be recorded in the interview record; C11.11 unless it is impracticable the person interviewed shall be given the opportunity to read the interview record and to sign it as correct or to indicate how they consider it inaccurate…

Were any or all of Miss Sutherland, Miss Marsland, or Mr Labatt "charged with the duty of investigating offences…?

46. We were referred to a number of authorities which establish that the duty referred to in section 67(9) is any type of legal duty, whether imposed by statute, common law or by contract. Thus it includes commercial investigators (R v Twaites and Brown 1992 CAR 106,) and store detectives (R v Bayliss 98 CAE 235.) The question very much turns on the particular facts of the case (see R v Ristic).
47. Mr Dennis, for the respondent, points out that the CCTV monitoring of legal visits without sound is pursuant to a power given to Prison Governors by regulation 50(a) of the Prison Rules 1999. This power can be exercised for a number of purposes including ensuring safety, maintaining security, as well as the prevention and detection of crime. He says that, as a matter of fact, there was no evidence to suggest that the monitoring of this particular legal visit was for the purpose of the investigation of crime. In any event, the evidence of Miss Marsland and Miss Sutherland was to the effect that their role was limited to monitoring. Anything which they observed would be reported further up the line for decisions to be taken by way of investigation.
48. Some support for this argument may be derived from a document entitled "HMP Belmarsh Searching Strategy 2004-5" which has been placed before this court. In the introduction, at p.6, reference is made to Prison Rule 41 which allows for the searching of prisoners. It identifies various categories of staff who may be authorised to conduct a search. They include "Officers of the prison (prison officers and governors)" and "operational support grades". It goes on to provide that only "officers of the prison" may take part in a strip search of a prisoner.
49. The focus of the argument has been on Appendix R containing powers of arrest. Paragraph 1 provides that "officers of the prison, when acting as such, have the powers of a prison act constable, this means that they have, amongst other powers, the 1952 powers of arrest of a constable but only in circumstances relating to the prison and their duties…"
50. The powers of the "officers of the prison" are set out in paragraph 4 as follows:

"When acting as such, an officer of the prison may arrest a member of the public or a member of staff in the following circumstances if there is reasonable cause to suspect that they have committed, are committing, or are about to commit, an offence but only if one or more of the conditions are satisfied:

the offence or suspected offence is in itself an arrestable offence

the arrest is necessary to prevent injury or loss of or damage to property…"

Paragraph 7 of appendix R provides as follows:

"Other offences, which may lead to arrest (officers of the prison only…)

The following offences are not in themselves arrestable offences, but are covered by general powers of arrest, and may be arrestable if any of the conditions at paragraph 5(sic):…

conveying anything into or out of a prison contrary to regulations (Prison Act 1952 section 41)"

There then follows a statement of the procedure for the arrest and caution.

51. Thus it appears that a prison officer has, but support officers do not have, powers of arrest either for an arrestable offence, or for a non arrestable offence if, amongst other things, it is necessary to prevent loss of or damage to property.
52. In our judgment there is to be a clear distinction between the position of a prison officer, such as Mr Labatt, and operational support grade officers, such as Miss Sutherland and Miss Marsland. This is reflected in the enhanced powers of arrest given to prison officers, but not to prison support officers. Given the evidence of both Miss Sutherland and Miss Marsland, that neither of them felt that they were under any duty to investigate offences but would pass the matter up to an available prison officer if their suspicions became sufficiently aroused, we conclude that the trial judge was correct in concluding neither Miss Sutherland nor Miss Marsland fell within section 67(9) so as to be directly subject to the PACE codes of practice.
53. On the other hand, in our judgment, the trial judge was wrong to conclude that Mr Labatt, an "officer of the prison" with powers of arrest equivalent to a prison act constable did not fall within section 67(9).

Was there a breach of the spirit and/or the substance of the Code?

54. That is not an end of the matter as far as Miss Sutherland and Miss Marsland are concerned. The trial judge recognised that it would be wrong to ignore the provisions of the code simply because a particular individual did not meet the statutory criteria of someone charged with an investigation. (see Ristic para 19).
55. In our judgment the judge was correct to conclude that, even on an analogous basis, there was no requirement on the part of Miss Sutherland to caution the appellant before asking the questions which she did. In our judgment it was too soon in the process of observing, and drawing possible conclusions, for such an obligation to have then arisen. All that Miss Sutherland had done was to see what might have amounted to the commission of an offence on a CCTV monitor. By asking the appellant what the position was in order to assist her in evaluating her observations she did not, in our judgment, yet have grounds to suspect an offence so as to trigger the obligation to caution before questioning.
56. By way of contrast, by the time Miss Marsland asked her question, the position had changed. The appellant, having initially denied to Miss Sutherland that anything had been passed by her client which she was seeking to remove from the prison, had had her file searched and the sheet of paper and two letters had been found. At that stage, in our judgment, there were grounds to suspect that she had had committed or was seeking to commit the offence of conveying an item out of a prison contrary to regulations under section 41 of the Prison Act 1952. In those circumstances, had the codes applied directly, an obligation to caution would have arisen. Thus, in deciding whether or not to admit this evidence, the judge, as he accepted he should, had to take into account the fact that the response was given to a question without the benefit of a caution even though there might, thereby, have been no technical breach of the code.
57. As for Mr Labatt, the judge was, in our judgment, in error in failing to conclude both that the code applied to him and that the question which he asked and the answers given ought, in compliance with the code, to have been accompanied by a prior caution.

Should this evidence have been excluded?

58. The trial judge, in respect of the Miss Marsland question and answer, considered whether or not there had been a breach of the spirit of the codes and whether it would be unfair to allow the matter to proceed. He set out a series of relevant factors which pointed, in his judgment, to the conclusion that, even if there had been a breach of the spirit of the codes, it would not be unfair for that evidence to be adduced. In our judgment, the matters upon which he relied, which focussed on the very unusual circumstances of this case, the status and the experience of the defendant and, in particular, the presence by her side of her principal, an extremely experienced legal practitioner, were compelling and entitled him, in the exercise of his discretion, to decline to exclude the evidence pursuant to section 78 of PACE. In our judgment that was a decision which the trial judge was entitled to make in the exercise of his discretion. He did not, therefore, err in law in admitting this evidence of Miss Marsland.
59. The next question is whether the trial judge, exercising his discretion to admit the evidence of Mr Labatt on the basis that there was a breach of the code's spirit, whereas he ought to have concluded that there was a breach of the codes themselves, came to a conclusion which rendered the conviction unsafe on that basis.
60. In our judgment, the same factors which persuaded him that it would not be unfair to admit this evidence apply equally compellingly where there was a breach of the code as where there was a breach of the spirit of the code. In our judgment the decision to admit or not to admit was clear cut and not a matter of drawing a fine balance. The unusual circumstances in which these questions and answers were given were such that the conclusion that it would not be unfair to the defendant to admit them permitted a clear decision in favour of admitting it. Accordingly, the fact that there was a breach of the code rather than a breach of the spirit of the code, does not persuade us that, thereby, the conviction was rendered unsafe.
61. Accordingly, whilst we acknowledge that this ground of appeal is arguable, in the end the appeal on this ground must also be dismissed.

Conclusion

62. It follows from what we have said that, both grounds of appeal having failed, we are satisfied that the conviction of the appellant is safe.