R v Samuel

COURT OF APPEAL, CRIMINAL DIVISION

[1988] 1 QB 615, [1988] 2 All ER 135, [1988] 2 WLR 920, 87 Cr App Rep 232, 152 JP 253, [1988] Crim LR 299

HEARING-DATES: 19 NOVEMBER, 17 DECEMBER 1987

17 December 1987

CATCHWORDS:
Criminal evidence -- Admissions and confessions -- Detention and questioning of suspects -- Right to consult solicitor -- Delaying access to solicitor -- Suspect charged with offence -- Whether police entitled to delay suspect's access to solicitor once he is charged with any offence -- Whether confession obtained after access to solicitor wrongly delayed should be admitted -- Police and Criminal Evidence Act 1984, s 78(1) -- Code of Practice for Detention, Treatment and Questioning of Persons by Police Officers, Annex B, para 1.

Criminal evidence -- Admissions and confessions -- Detention and questioning of suspects -- Right to consult solicitor -- Delaying access to solicitor -- Authority to delay access -- Police officer's belief -- Police officer required to have reasonable belief that suspect's access to solicitor will lead to other suspects being alerted -- Nature of belief required -- Police and Criminal Evidence Act 1984, s 58(8)(b).



HEADNOTE:
On 6 August 1986 the appellant was arrested on suspicion of robbery and taken to a police station. During the course of that day and the next he was interviewed on four occasions about the robbery and two burglaries but he denied the offences. During the second interview he asked for access to a solicitor. Under para 1 of Annex B to the Code of Practice for Detention, Treatment and Questioning of Persons by Police Officers issued by the Secretary of State pursuant to s 66 of the Police and Criminal Evidence Act 1984, a police officer of the rank of superintendent or above was entitled to delay a suspect's right of access to a solicitor if the suspect was being detained in connection with a serious arrestable offence, if he had not yet been charged with an offence and if the officer had reasonable grounds for believing, inter alia, that the granting of access to a solicitor 'will lead' to other suspects being alerted before their arrest. The requirement that the officer should have a reasonable belief that access to a solicitor 'will lead' to the alerting of other suspects was laid down by s 58(8)(b) of the 1984 Act. The police superintendent to whom the appellant's request was referred decided to refuse him access to a solicitor on the ground that two of the offences being investigated, namely the robbery and one of the burglaries, were serious arrestable offences and there was a likelihood of other suspects involved in the robbery being inadvertently warned. At the fourth interview on the morning of August 7 the appellant confessed to the two offences of burglary and he was charged with those offences at 4.30 p m. At 4.45 p m a solicitor instructed by the appellant's family was informed of the charges but was denied access to the appellant. Shortly thereafter the appellant confessed to the robbery in another interview
and was charged with that offence. The solicitor was allowed to see him an hour later. At his trial, the appellant contended that the record of his last interview ought to be excluded under s 78(1)of the 1984 Act, on the ground that it had taken place in the unjustified absence of a solicitor in breach of para 1 of Annex B to the Code of Practice for Detention because (i) the appellant had already been charged with 'an offence', i e the two burglaries, when his access to a solicitor was denied and (ii) the police superintendent did not have reasonable grounds for believing that the granting of access to a solicitor would lead to other suspects being alerted. The trial judge held that there had been no breach of the code, that the police superintendent's belief was reasonable and that if there had been a breach of the code he would in any event exercise his discretion by allowing the evidence to be admitted. The evidence was admitted, and the appellant was convicted. He appealed.

Held -- The appeal would be allowed for the following reasons--
(1) On the plain and natural meaning of para 1 of Annex B to the Code of Practice for Detention the right of a person being detained by the police to have access to a solicitor could not be delayed after he had been charged with any offence and certainly not after he had been charged with a serious arrestable offence in connection with which he was in police custody. Since the appellant had already been charged with the two burglaries, one of which was a serious arrestable offence, before his fourth interview, at which he had confessed to the robbery, access to a solicitor had been wrongly denied to him (see p 142 a g h, post).
(2) The right of a person detained by the police to have access to a solicitor was a fundamental right of the citizen and a police officer
attempting to justify to the court his decision under s 58 of the 1984 Act to delay access had to do so by reference to the specific
circumstances of the case, including evidence as to the person detained or the actual solicitor sought to be consulted. In particular, not only did the officer have to believe that the access 'will', and not merely 'may', lead to the alerting of other suspects but he had also to believe that if a solicitor was allowed access to the detained person the solicitor would thereafter commit the criminal offence of alerting other suspects or would be hoodwinked into doing so inadvertently or unwittingly. Either belief could only rarely be genuinely held by the police officer (see p 143 f to p 144 a d e, post).
(3) In the circumstances the refusal of access to the appellant's solicitor before the last interview took place had been unjustified and the interview should not have taken place. If the trial judge had held that the refusal of access to a solicitor was unjustified and that consequently the final interview was unlawful, he might well have concluded that the admission of evidence of that interview would be so unfair that it ought not to be admitted. It followed therefore that the conviction of robbery would be quashed (see p 145 c f g j and p 147 c d, post).

NOTES:
For admissibility of confessions, see 11 Halsbury's Laws (4th edn) paras 410--415 and 17 ibid para 22, and for cases on the subject, see 14(2) Digest (Reissue) 549--552, 562--575, 4494--517, 4578--4643.
For the right of access to a solicitor, see 11 Halsbury's Laws (4th edn) para 419.
For the Police and Criminal Evidence Act 1984, ss 58, 78, see 12 Halsbury's Statutes (4th edn) 1011 and 17 ibid 215.

CASES-REF-TO:

A-G v Milne [1914] AC 765, [1914--15] All ER Rep 1061, HL.
Croxford v Universal Insurance Co Ltd [1936] 1 All ER 151, [1936] 2 KB 253, CA.
Leader v Duffey (1888) 13 App Cas 294, HL.
Robb's Contract, Re [1941] 3 All ER 186, [1941] Ch 463, CA.


INTRODUCTION:
Appeal against conviction

Cornelius Joseph Samuel appealed against his conviction for robbery in the Crown Court at Birmingham before his Honour Judge Richard Cole and a jury on 13 April 1987. The facts are set out in the judgment of the court.

COUNSEL:
B R Escott Cox QC and Philip Parker (assigned by the Registrar of Criminal Appeals) for the appellant.

David A F Jones for the Crown.

JUDGMENT-READ:
Cur adv vult 17 December. The following judgment of the court was delivered.

PANEL: GLIDEWELL LJ, HODGSON AND ROUGIER JJ

JUDGMENTBY-1: HODGSON J

JUDGMENT-1:
HODGSON J. On 8 April 1987 in the Crown Court at Birmingham before his Honour Judge Richard Cole the appellant faced an indictment containing one count of robbery and two of burglary. The third count of burglary alleged the theft of items totalling in value 1,135.  By agreement the appellant was tried on the robbery count only. On 13 April he was found guilty he thereupon pleaded guilty to the two burglary offences. For the robbery he was sentenced to ten years' imprisonment. He received concurrent sentences of two years' imprisonment for the burglaries, and they were made concurrent with the ten years for the robbery. Against his conviction for robbery he appeals by leave of the single judge.  On Friday, 11 July 1986 at about 2.55 p m three men entered an agency branch of the Leeds Permanent Building Society in Birmingham. The cashier saw one of the men turn towards the main entrance and pull a sack over his head. She dashed towards the door into the manager's office, but too late, and the three men were able to follow her through to the room where the manager and another man were. The manager was threatened at knife point and ordered to open his briefcase, which had no money in it. One of the robbers was armed with a sawn-off shot gun, another with a small black hand gun. The cashier, a Miss Werrett, told one of the men that the money was in a drawer and offered to show him the right key. She got up and he held her round her neck with his left arm and pushed the shot gun against her neck with his right hand. She selected the key and the drawer was opened. Inside was a cash box. She told the robbers it contained all the money there was. They took it and left. She pressed the panic button which sounded alarm bells. The money in the cash box was 300.  On 5 August two men, one of whom was the appellant, entered the branch Miss Werrett recognised them as two of the robbers. The appellant presented a passbook in his own name and deposited 70. When the two men left the police were called. On the following day the
appellant was arrested on suspicion of armed robbery. He was taken to Ladywood police station, arriving at 2.00 p m. At 2.07 p m he signed the custody record stating that he did not 'want a solicitor at this time'. At about 2.25 p m his house was searched, and later that day at 10.45 p m it was again searched. Included in the property taken from the house as a result of these two searches were two face masks (one black, one green), a building society passbook hidden under a carpet, photographs showing the appellant kissing bundles of bank notes and a good deal of the property stolen in the two burglaries. It is on what happened after the appellant's arrival at the police station that his appeal is based. Between 2.21 and 2.35 p m he was interviewed. He denied everything. He was interviewed against between 8.12 and 8.33 p m. When the questioning turned to the masks discovered at his house he asked for a solicitor. He said, and was so recorded: 'I want to have my solicitor here before I say anything else.' The interview was then terminated and his request referred to Supt Cresswell.  The decision of Supt Cresswell is properly recorded in the custody record at 9 p m: 'Access denied. Serious arrestable offence. Likelihood of other suspects to be arrested being inadvertently warned. Considerable amount of money remains outstanding.' At that time Supt Cresswell did not know who the solicitor was to whom the appellant wanted access, nor did he mention the firearms. In fact, more than the 300 stolen in the robbery had been taken from the appellant's home.   Between 9.09 and 9.36 p m that same evening the appellant was again interviewed, having been told both by the custody officer and the interviewing officers that access to a solicitor was being denied. He again denied being involved in the robbery. On the following morning he was interviewed between 9.43 a m and 12 noon. He again denied being implicated in the robbery but confessed to the two burglaries. The interviewing officers then arrested him for those two offences. During this interview at 11.00 a m his mother was informed of his arrest. At 1 p m there is this record in the custody record over the signature of a woman superintendent: 'Charging procedure delayed in order to secure evidence in connection with armed robberies. I am satisfied enquiries are being made diligently. Decision to be reviewed in 4 hours. Samuel informed.' That decision can only relate to the two burglaries.
Presumably on hearing that her son had been arrested, his mother instructed a solicitor. The solicitor instructed was a Mr Warner. He is the senior partner in a firm of Birmingham solicitors and a highly respected member of his profession. During that afternoon he made a number of unsuccessful attempts to speak to someone in authority at Ladywood police station.  At 4.30 p m the appellant was charged with the two burglaries. That was, of course, before the review time laid down by the superintendent. Why the decision to charge was taken does not appear, nor by whom it was made. There is no record of any review of the decision to delay charging procedures. At 4.45 p m Mr Warner telephoned the police station and was told that his client had been charged with the burglaries but that he was still not allowed access to a solicitor. Between 5.22 and 5.40 p m he was again interviewed. At this interview he confessed to the robbery. At 6.20 p m he was charged with robbery. At 7.25 p m Mr Warner visited the police station and had an interview with his client.  0
At the trial, in a trial within a trial, counsel for the appellant submitted that on two grounds the denial of access to a solicitor was unjustified, both when the decision was first made at 9.00 p m on 6 August and, more seriously, when it was repeated at 4.45 p m on 7 August, that, accordingly, the interview in the evening of 7 August ought not to have taken place in the absence of a solicitor and that the judge ought to have ruled that evidence as to that interview should not be adduced before the jury. The trial judge ruled against his submission and the trial proceeded.
At the trial the evidence for the prosecution came substantially under three heads: the identification evidence of Miss Werret, the masks found at the appellant's home together with the hidden passbook and the evidence of the confessions made by the appellant at the last interview. The appellant did not give evidence but called two alibi witnesses.   The identification evidence of Miss Werrett was attacked on two grounds: first, that there were discrepancies between her witness statements to the police and between them and her evidence in the witness box, particularly between her description of a canvas sack with stitching which the robber had pulled over his head and the knitted balaclava helmet taken from the appellant's house, which she had identified as identical with the one used by the robber second, that on 27 June 1986 she had dealt with the appellant when he opened a normal savings account but had not recognised him when the robbery took place and that, on the Monday following the robbery, she had taken a deposit of 330 in cash for the appellant's account without recognising him. This she explained by saying that someone else might have deposited the money for him.
The sole ground of this appeal is that the trial judge was wrong in holding that the denial of access to a solicitor was justified, that he should have held on two grounds that it was not justified and that, if he had so found, he ought thereafter to have exercised his discretion under s 78(1) of the Police and Criminal Evidence Act 1984 and ruled that the evidence relating to the final interview was inadmissible.  The scheme of the 1984 Act is not simple. The Act itself contains 122 sections. Section 66 imposes on the Home Secretary the duty to issue codes of practice in connection with, inter alia, '(b) the detention, treatment, questioning and identification of persons by police officers'. Section 67(11) reads:

'In all criminal . . . proceedings any such code shall be admissible in evidence and if any provision of such a code appears to the court . . . conducting the proceedings to be relevant to any question arising in the proceedings it shall be taken into account in determining that question.'

The code of practice relating to detention etc has been issued as 'Code C'. It contains 17 paragraphs, notes for guidance and five
annexes. 'The right to legal advice' is dealt with in para 6 and Annex B. There is one other aspect of the scheme of the Act which it is convenient to mention at this point. The Act distinguishes between 'serious arrestable offences' and all other offences. A serious arrestable offence is defined in s 116 and Sch 5. By s 116(2)(a) an offence specified in Pt I of that schedule is always a serious arrestable offence. By s 116(2)(b) an offence under an enactment specified in Pt II of the schedule is always a serious arrestable offence. Robbery is an offence created by s 8 of the Theft Act 1968. It does not appear in either Pt I or Pt II of the schedule. However, s 18 of the Firearms Act 1968, carrying firearms with criminal intent, does.
Section 116(3) provides:

'. . . any other arrestable offence is serious only if its commission--(a) has led to any of the consequences specified in subsection (6) below or (b) is intended or is likely to lead to any of those consequences.'

One of the consequences set out in s 116(6) is '( f ) serious financial loss to any person' and s 116(7) provides that 'Loss is serious for the
purposes of this section if, having regard to all the circumstances, it is serious for the person who suffers it'.
When, at 9.00 p m on the evening of 6 August, Supt Cresswell decided to delay access to a solicitor he formed the view that the robbery was
a serious arrestable offence because a shot gun and handgun had allegedly been used. He must then have been relying on s 18 of the Firearms
Act 1968. Although he did not say this in his evidence on the voire dire, it was a view that, in the judgment of this court, he was entitled to
take. It may be that another justification could be found in s 116(3)(b) that there was an intention to cause serious financial loss even to a
building society. Supt Cresswell was also of the view, wholly justified in the opinion of this court, that the burglary, the subject eventually of
count 3 in the indictment, was elevated into the serious arrestable offence category by the serious financial loss caused to the householder.
On the voire dire, the primary submission of counsel for the appellant was made on para 1 of Annex B to the Code for Detention, which reads:

'The rights set out in sections 5 or 6 of the code (or both) may be delayed if the person is in police detention in connection with a serious
arrestable offence, has not yet been charged with an offence and an officer of the rank of superintendent or above has reasonable grounds for
believing that the exercise of each right . . .'

and the paragraph then sets out the provisions of s 58(8) of the 1984 Act, to which we shall refer in detail later.
His argument could not have been more simple. In s 6 of the code is set out the rights to legal advice. That right can only be delayed if the
person 'has not yet been charged with an offence'. At 4.30 p m on 7 August this appellant was charged with two offences (one a 'serious
arrestable offence'). Therefore the right to legal advice could no longer be delayed, and the refusal of access to Mr Warner was unlawful. The
words, he submitted, were clear and unambiguous. He would, no doubt, have added that there is no canon of construction which permits a
court, faced with unambiguous words, to import into them a spurious ambiguity in order to resolve what appears to the court to be an
unsatisfactory or even absurd result of construing the words in their natural and ordinary meaning.
The primary canon of construction is that words must be given their natural meaning, and if the meaning is plain there is no scope for rules of
construction: see A-G v Milne [1914] AC 765, [1914--15] All ER Rep 1061. In Croxford v Universal Insurance Co Ltd [1936] 1 All ER 151 at 166,
[1936] 2 KB 253 at 281 Scott LJ said:

'Where the words of an Act of Parliament are clear, there is no room for applying any of these principles of interpretation, which are merely presumptions in cases of ambiguity in the statute.'

It is true that a statute must be read as a whole and the construction made of all the parts together, but where there is no ambiguity then, unless the plain meaning of the words undermines the whole policy of the Act, they must be given their ordinary meaning. If the language of a statute is clear, it must be enforced though the result may seem harsh or unfair or inconvenient: see Re Robb's Contract [1941] 3 All ER 186 at 193--195, [1941] Ch 463 at 478--479 per Lord Greene MR and Clauson LJ.
In this case counsel for the appellant submits that the meaning of 'an offence' in Annex B is plain and unambiguous and, although he does not concede that the result of giving the words that meaning in any way undermines the policy of the Act or leads to inconvenience, he would submit that, even if it did, this court would not be entitled to, in effect, create an ambiguity and then import words into the annex to resolve it. As Lord Halsbury LC said in Leader v Duffey (1888) 13 App Cas 294 at 301:

'All these refinements and nice distinctions of words appear to me to be inconsistent with the modern view--which is I think in accordance with reason and common sense--that, whatever the instrument, it must receive a construction according to the plain meaning of the words and sentences therein contained. But I agree that you must look at the whole instrument, and, inasmuch as there may be inaccuracy and inconsistency, you must, if you can, ascertain what is the meaning of the instrument taken as a whole in order to give effect, if it be possible to do so, to the intention of the framer of it. But it appears to me to be arguing in a vicious circle to begin by assuming an intention apart from the language of the instrument itself, and having made that fallacious assumption to bend the language in favour of the assumption so made.'

In reply counsel for the Crown submitted that to construe 'an offence' in its natural and ordinary meaning could not be right because to do so would infringe the policy of the Act and make the provision in some respects unworkable. That argument and counsel for the appellant's reply to it led to a detailed consideration of much of this legislation.
The first contention of counsel for the Crown was that 'an' could not mean 'any', because if it meant 'any' absurdity follows. The absurdity arises, it is submitted, in this way. Section 31 provides:

'Where--(a) a person--(i) has been arrested for an offence and (ii) is at a police station in consequence of that arrest and (b) it appears to a constable that, if he were released from that arrest, he would be liable to arrest for some other offence, he shall be arrested for that offence.'

Paragraph 17.1 of the code provides:

'When an officer considers that there is sufficient evidence to prosecute a detained person he should without delay bring him before the custody officer who shall then be responsible for considering whether or not he should be charged . . .'

Section 37(7) of the Act provides:

'Subject to section 41(7) below, if the custody officer determines that he has before him sufficient evidence to charge the person arrested with the offence for which he was arrested, the person arrested--(a) shall be charged or (b) shall be released without charge, either on bail or without bail.'

It follows, submits counsel for the Crown, that all someone arrested, let us say for murder committed together with other unarrested villains, has to do to ensure that he has access to legal advice is to confess to an offence, let us say of shoplifting. Then he has to be arrested (s 31), without delay brought before the custody officer (para 17.1 of the code) and charged (s 37(7)).
In the judgment of this court that submission falls at the first fence. The subjunctive in s 31(b) seems to this court plainly to import an
imminent possibility of 'release from that arrest'. It seems to this court that the obvious purpose of that section is to prevent the release and immediate rearrest of an alleged offender. Nor does the section impose any duty on the constable to arrest immediately. We see nothing in the section which would prevent the constable delaying arresting him until the time (if it ever arrived) when his release was imminent.   Counsel for the Crown, his attention being directed to para 17.5 of the code, 'Questions relating to an offence may not be put to a person after he has been charged with that offence . . .', concedes that the draftsman of the code plainly understood the difference between 'any' and 'that'. His submission why the draftsman did not say 'that' in para 1 of Annex B is subtle. If he had written 'that', then, if someone had been arrested on suspicion of murder and had later confessed to manslaughter and been charged with manslaughter he could still have been denied access to a solicitor. But that submission, looked at as something which torpedoes the purpose of the Act, falls equally at s 31. If the officers were still pursuing a charge of murder there would be no imminent chance of his release on that arrest.
Having, on those submissions, destroyed 'any' and 'that' as possible contenders to take the place of the simple 'an', he has to give his own construction of 'an'. It is this (and we have tried to abbreviate his necessary additional words as much as possible): 'an offence' means 'an offence arising out of the facts on which the offence for which he was arrested were based'.  Counsel for the appellant submits that construing 'an offence' in its natural and ordinary meaning need cause no difficulty to the police in operating this complex scheme. Counsel's first submission is based on s 42(1) of the Act, which provides, under the heading 'Authorisation of continued detention':

'Where a police officer of the rank of superintendent or above who is responsible for the police station at which a person is detained has reasonable grounds for believing that--(a) the detention of that person without charge is necessary to secure or preserve evidence relating to an offence for which he is under arrest or to obtain such evidence by questioning him (b) an offence for which he is under arrest is a serious arrestable offence and (c) the investigation is being conducted diligently and expeditiously, he may authorise the keeping of that person in police detention for a period expiring at or before 36 hours after the relevant time.'

Counsel for the appellant submits that where a person is detained in connection with a serious arrestable offence and during his detention the police acquire sufficient evidence to charge him with another offence an application can be made to a superintendent to detain him further without charge under s 42(1). That, in fact, is what seems to have been done in this case. It seems clear that the superintendent who delayed 'charging procedures' at 1.00 p m on 7 August thought that she was exercising a power granted by s 42(1).  We cannot accept this argument. In our judgment s 42 is dealing, and dealing only, with authorisation of continued detention and does not give the police any power to delay charging someone where the police have sufficient evidence to charge.   Counsel's second suggestion as to how the absurdity allegedly brought about by the confession to shoplifting point can be met is this. Sections 24 and 25 deal with arrest. They give the police (and anyone else in certain circumstances) powers of arrest but impose no duty to arrest. So, he says, all the police have to do when the person admits to some minor offence is nothing. The police can, he submits,
safely refrain from arresting him for that offence. If he has not been arrested, then, under s 37(7), the custody officer has no duty to charge (or release) him. That is a simple and obvious answer. The only difficulty arises out of s 31, which is in mandatory terms. We have already expressed a view about s 31 and, if that view is correct, then nothing stands in the way of counsel's commonsense answer to the problem.  In our judgment there is nothing in the arguments rehearsed before us which would justify the court in construing Annex B otherwise than in its plain and natural meaning. We do not think that by so doing we shall be, in any real way, making the operation of the Act and codes more difficult. It follows that access to a solicitor ought not to have been denied at 4.45 p m on 7 August and the subsequent interview ought not, therefore, to have taken place in the absence of a solicitor.
There is, however, on the facts of this case a much simpler answer to the question whether refusal of access was justifiable. Supt Cresswell gave evidence on the voire dire. Although we have no transcript of his evidence it is accepted that it was the same as is contained in the notice of additional evidence in the form of a witness statement from Supt Cresswell dated 11 February 1987, which reads:

'In connection with the investigation into an armed robbery at the Leeds Permanent Building Society, 237 Dudley Road, Winson Green, Birmingham, which occurred on Friday 11th July 1986, and the subsequent arrest of Cornelius Joseph Samuels. At about 9.00 p.m. on Wednesday 6th August 1986, having learned of the circumstances relating to his arrest, I denied access to legal representation for the prisoner on the following grounds. First and foremost, this was a serious arrestable offence of armed robbery where a sawn-off shotgun and a handgun had allegedly been used in the commission of this crime. I believed to have allowed access to a legal representative could, at this time, have been prejudicial to the investigation. There were three men involved in the robbery and it was imperative that enquiries to trace the other suspects were not in any way hindered. Similarly, in my opinion, it was paramount that neither should enquiries to recover the weapons used be hindered in order that the firearms could be recovered out of the possession of suspects liable to re-use them. Additionally, whilst unable to consider the 300 cash stolen during the commission of that armed robbery as a serious financial loss to the Leeds Building Society, I was also mindful that the prisoner was a suspect for an offence of burglary at a dwelling in Paignton Road, Edgbaston and which involved the theft of household electrical equipment valued at 1,135 which I considered serious financial loss to that householder. It was my opinion that the presence of a solicitor could be detrimental to the enquiry, and there was the likelihood of that solicitor inadvertently passing on information to
the friends and relatives of the accused who may have been involved in offences or known other persons so involved, thus enabling those other persons to escape apprehension or to dispose of the firearms used in the robbery or dispose of the stolen property.'

It seems clear, therefore, that at 9.00 p m on 6 August the appellant was being detained in connection with two serious arrestable offences, the robbery and the burglary, although at that time he had not been formally arrested for the burglary. When therefore he was charged with the burglary at 4.30 p m on 7 August he was being charged with one of the serious arrestable offences in connection with which he was in police detention. On no conceivable construction could 'an offence' in the annex be construed as excluding one of the arrestable offences in connection with which he was in police detention. Accordingly, on that ground also, access to a solicitor was wrongly denied him.  The second point of counsel for the appellant raises, in the judgment of this court, more fundamental and important issues. He challenged on the voire dire and challenged before us the correctness of both Supt Cresswell's first decision to delay access and, even more emphatically, the decision to refuse access to Mr Warner at 4.45 p m on 7 August.
Perhaps the most important right given (or rather renewed) to a person detained by the police is his right to obtain legal advice. That right is given in s 58 of the Act, sub-s (1) of which is precise and unambiguous. The section provides:

'(1) A person arrested and held in custody in a police station or other premises shall be entitled, if he so requests, to consult a solicitor privately at any time.  (2) Subject to subsection (3) below, a request under subsection (1) above and the time at which it was made shall be recorded in the custody record.  (3) Such a request need not be recorded in the custody record of a person who makes it at a time while he is at a court after being charged with an offence. (4) If a person makes such a request, he must be permitted to consult a solicitor as soon as is practicable except to the extent that delay is permitted by this section.  (5) In any case he must be permitted to consult a solicitor within 36 hours from the relevant time, as defined in section 41(2) above.   (6) Delay in compliance with a request is only permitted--(a) in the case of a person who is in police detention for a serious arrestable offence
and (b) if an officer of at least the rank of superintendent authorises it. (7) An officer may give an authorisation under subsection (6) above orally or in writing but, if he gives it orally, he shall confirm it in writing as soon as is practicable. (8) An officer may only authorise delay where he has reasonable grounds for believing that the exercise of the right conferred by subsection (1) above at the time when the person detained desires to exercise it--(a) will lead to interference with or harm to evidence connected with a serious arrestable offence or interference with or physical injury to other persons or (b) will lead to the alerting of other persons suspected of
having committed such an offence but not yet arrested for it or (c) will hinder the recovery of any property obtained as a result of such an offence. (9) If delay is authorised--(a) the detained person shall be told the reason for it and (b) the reason shall be noted on his custody record.  (10) The duties imposed by subsection (9) above shall be performed as soon as is practicable. (11) There may be no further delay in permitting the exercise of the right conferred by subsection (1) above once the reason for authorising delay ceases to subsist . . .'

The words of the section clearly imply that the officer does so believe. Therefore a court which has to decide whether denial of access to a solicitor was lawful has to ask itself two questions: 'Did the officer believe?', a subjective test and 'Were there reasonable grounds for that belief?', an objective test. What it is the officer must satisfy the court that he believed is this: that (1) allowing consultation with a solicitor (2) will (3) lead to or hinder one or more of the things set out in paras (a) to (c) of s 58(8). The use of the word 'will' is clearly of great importance. There were available to the draftsman many words or phrases by which he could have described differing nuances as to the officer's state of mind, for example 'might', 'could', 'there was a risk', 'there was a substantial risk' etc. The choice of 'will' must have been deliberately restrictive.     


Of course, anyone who says that he believes that something will happen, unless he is speaking of one of the immutable laws of nature,
accepts the possibility that it will not happen, but the use of the word 'will' in conjunction with belief implies in the believer a belief that it will very probably happen. What is it that the officer has to satisfy the court he believed? The right denied is a right 'to consult a solicitor privately'. The persons denied that right is in police detention. In practice, the only way that the person can make any of the matters set out in paras (a) to (c) happen is by some communication from him to the solicitor. For the matters set out in paras (a) to (c) to be made to happen the solicitor must do something. If he does something knowing that it will result in anything in paras (a) to (c) happening he will, almost inevitably, commit a serious criminal offence. Therefore, inadvertent or unwitting conduct apart, the officer must believe that a solicitor will, if allowed to consult with a detained person, thereafter commit a criminal offence. Solicitors are officers of the court. We think that the number of times that a police officer could genuinely be in that state of belief will be rare. Moreover it is our view that, to sustain such a basis for refusal, the grounds put forward would have to have reference to a specific solicitor. We do not think they could ever be successfully advanced in relation to solicitors generally.  However, the experience of some members of this court and, so he tells us, of counsel for the appellant is that the practice adopted in this case is becoming more and more usual. An officer's 'reasonable belief ' is more and more being based on the 'inadvertent' or 'unwitting' conduct of a solicitor.
At first sight the wording of the subsection does not seem apt to cover inadvertent or unwitting conduct by a solicitor. But what is said is that the detained person will be able to bring about one or more of the happenings set out in paras (a) to (c) by causing the solicitor to pass on unwittingly some form of coded message. Whether there is any evidence that this has or may have happened in the past we have no way of knowing. Solicitors are intelligent professional people persons detained by the police are frequently not very clever and the expectation that one of the happenings set out in paras (a) to (c) will be brought about in this way seems to contemplate a degree of intelligence and sophistication in persons detained, and perhaps a naivety and lack of common sense in solicitors, which we doubt often occurs. When and if it does, we think it would have to have reference to the specific person detained. The archetype would, we imagine, be the sophisticated criminal who is known or suspected of being a member of a gang of criminals.   The task of satisfying a court that reasonable grounds existed at the time the decision was made, either in respect of intentional or inadvertent conduct, will, we think, prove even more formidable. Any officer attempting to justify his decision to delay the exercise of this fundamental right of a citizen will, in our judgment, be unable to do so save by reference to specific circumstances, including evidence as to the person detained or the actual solicitor sought to be consulted.  In this connection it is relevant to note that at many police stations a duty solicitor scheme is in operation. Note 6B of the notes for guidance to s 6 of the code of practice provides:

'A person who asks for legal advice should be given an opportunity to consult a specific solicitor (for example, his own solicitor or one known to him) or the duty solicitor where a Duty Solicitor Scheme is in operation. If advice is not available by these means, or he does not wish to consult the duty solicitor, the person should be given an opportunity to choose a solicitor from a list of those willing to provide legal advice. If this solicitor is unavailable, he may choose up to two alternatives. If these attempts to secure legal advice are unsuccessful, the custody officer has discretion to allow further attempts until a solicitor has been contacted who agrees to provide legal advice.'

Duty solicitors will be well known to the police, and we think it will therefore be very difficult to justify consultation with the duty solicitor being delayed. If the duty solicitor has the reputation, deserved or not, for advising persons detained to refuse to answer questions that would, of course, be no reason for delaying consultation.  The first question we have to answer is therefore whether, on the evidence adduced on the voire dire, the judge was right to rule that, irrespective of the construction point on the annex, the decision to delay was lawful under s 58(8). The first thing to note is that two decisions were taken, the first by Supt Cresswell at 9.00 p m on 6 August, the second by someone at 4.45 p m on 7 August when Mr Warner was refused access. It is clear that the submissions of counsel for the appellant were mainly directed to the second of these two decisions. The second decision, which led to the refusal of access to Mr Warner personally, is not recorded in the custody record, is not referred to in Supt Cresswell's
evidence and does not feature at all in the judge's ruling.

It is, of course, clear that delaying the exercise of this fundamental right must be kept under constant review (see s 58(11)). While, in our judgment, the reasons given for the decision at 9.00 p m on 6 August are neither sufficient nor satisfactory the defence appears not to have attacked them on the voire dire. But, even if those reasons were valid at 9.00 p m on 6 August, did that validity subsist until 4.45 p m on 7 August?  By 4.45 p m on 7 August the police knew the identity of the solicitor, a highly respected and very experienced professional lawyer, unlikely to be hoodwinked by a 24-year-old. In addition the appellant's mother had been told of his arrest that morning. Further, the earliest time at which Mr Warner would be able to do something inadvertent would be well after 6 o'clock that evening, allowing time for his getting to the police station, seeing his client and being present at the interview which the police clearly wanted to have that evening. By 6 o'clock there would only remain some eight hours during which access to a solicitor could be lawfully delayed (s 58(5)), so that, if the happenings set out in paras (a) to (c) of s 58(8) were to be brought about by inadvertence there was very little time left for it to happen. Counsel for the Crown was unable to point to any inadvertent conduct by Mr Warner which could have led to any of the results in paras (a) to (c) save his transmission to someone of some sort of coded message. We do not know who made the decision at 4.45 p m but we find it impossible to believe that whoever did had reasonable grounds for the belief required by s 58(8).  The more sinister side to the decision is, of course, this. The police had, over a period exceeding 24 hours, interviewed this young man four times without obtaining any confession from him in respect of the robbery. Time was running out for them it was a Thursday evening 36 hours from the relevant time would expire in the early hours of the morning then access to a solicitor would have to be permitted. On the following day the appellant would have to be taken before the magistrates' court (s 46). As he had already been interviewed four times and been in police custody for over 24 hours, the expectation would be that a solicitor might well consider that, at least for that evening, enough was enough and that he ought to advise his client not to answer further questions. There were, therefore, very few hours left for the police to interview the appellant without his having legal advice. And, as events showed, that was something the police very much wanted to do this one knows because, within 37 minutes, he was in fact interviewed. All previous interviews had been conducted by a detective sergeant with a detective constable as notetaker. The interview at 5.20 p m was conducted by a detective inspector, the sergeant and detective being present, so that the appellant now faced a different questioner and a total of three policemen. At that interview he made the confession to
the robbery. Regrettably we have come to the conclusion that whoever made the decision to refuse Mr Warner access at 4.45 p m was very probably motivated by a desire to have one last chance of interviewing the appellant in the absence of a solicitor.
Counsel for the Crown made a bold submission. He contended that, where, as here, there were firearms which had not been recovered, delaying access to a solicitor could be justified on the ground that he might advise his client not to answer questions and thereby hinder the police in their efforts to recover the firearms. That is a wholly unsustainable argument in the light of para 2 of Annex B, which provides:

'Access to a solicitor may not be delayed on the grounds that he might advise the person not to answer any questions or that the solicitor was initially asked to attend the police station by someone else, provided that the person himself then wishes to see the solicitor.'

For these reasons also we find that the refusal of access to Mr Warner at 4.45 p m was unjustified. That being so, the interview, without a solicitor being present, should not have taken place (para 6.3 of the code). It follows that, in our judgment, the trial judge fell into error both in his construction of Annex B and in holding that there was no breach of s 58 and the code. He in fact does not seem to have applied his mind to the situation subsisting at 4.45 p m on 7 August.
The means adopted by the 1984 Act to ensure that persons in police detention are not denied the right given to them by, inter alia, s 58(1) are twofold. First, if the right is denied that can lead to the exclusion of evidence obtained at unlawful interviews conducted after the denial either by the exercise of the judge's power under s 78(1) or, where the prosecution fails to satisfy the court that the denial was not oppression or a part of oppressive conduct, under s 76. In this case counsel for the appellant did not and does not submit that the refusal of access, although an impropriety, amounted to oppression.  The second method of enforcement relies on police discipline and disciplinary procedures. These will be effective in ensuring that the primary rights, which are supervised by the custody officer, are given to persons in police detention. He is someone who cannot be involved in the investigation (see generally ss 35, 36 and 67(8)). Where a senior officer has to make judgmental decisions such as are provided by s 58(8) in the absence of mala fides, these provisions provide a much less secure method of ensuring compliance with the Act.  Section 78, under the heading 'Exclusion of unfair evidence', provides:

'(1) In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.  (2) Nothing in this section shall prejudice any rule of law requiring a court to exclude evidence.'

Having ruled against the defence submissions on both the construction point and the more fundamental submissions on the exercise of the power under s 58(8), the trial judge briefly considered his discretion. He said:

'However, had I decided that ''an offence'' meant any offence I would, in the exercise of the discretion which I undoubtedly have, have exercised it on the basis of justice, fairness and common sense and would in any event have allowed the evidence to be given to the jury'

It is to be noted that he there makes no reference to his decision on the second ground. Counsel for the appellant submits, firstly, that it is clear that the judge did not consider how he would have exercised his discretion if he had applied his mind to the situation at 4.45 p m and still held that the refusal at that time was proper. Secondly, he submits that, having found wrongly on both submissions, it was really impossible for him properly to consider how he would have exercised his discretion.  Mr Warner gave evidence. He said it was not his policy always to advise a client not to answer questions put to him by the police. In his view, in many cases, it was of advantage to someone in detention to answer proper questions put to him. However on this occasion, knowing that his client had already been interviewed on four occasion and at each had strenuously denied complicity in the robbery and had already been charged with two serious offences, he would probably, after consultation, have advised his client, for the time being at any rate, to refuse to answer further questioning. The probable result of allowing the appellant to exercise his right would therefore, in all probability, have been that, had a further interview taken place (and we think it improbable that the police would, in those circumstances, have thought it worth their while to interview him further), no incriminating replies would have been given.  Counsel for the appellant further submits that he was handicapped in his conduct of the appellant's defence by the judge's ruling on the construction of the annex. That was a ruling on a point of law and therefore prevented him cross-examining the police on the propriety of the refusal of access on that ground. It is undesirable to attempt any general guidance as to the way in which a judge's discretion under s 78 or his inherent powers should be exercised. Circumstances vary infinitely. Counsel for the Crown has made the extreme submission that, in the absence of impropriety, the discretion should never be exercised to exclude admissible evidence. We have no hesitation in rejecting that submission, although the propriety or otherwise of the way in which the evidence was obtained is something which a court is, in terms, enjoined by the section to take into account.

This court is always reluctant to interfere with the exercise of a judge's discretion, but the position is different where there was no discretion to exercise on the judge's ruling and all the court has is an indication of how the judge would have exercised it. This is particularly so in this case, where, on the s 58(8) point, the judge failed properly to address his mind to the point in time which was most material and did not in terms give consideration to what his decision would have been had he ruled in favour of the defence on this more fundamental issue before him.

In this case this appellant was denied improperly one of the most important and fundamental rights of a citizen. The trial judge fell into error is not so holding. If he had arrived at correct decisions on the two points argued before him he might well have concluded that the refusal of access and consequent unlawful interview compelled him to find that the admission of evidence as to the final interview would have 'such an adverse effect on the fairness of the proceedings' that he ought not to admit it. Such a decision would, of course, have very significantly weakened the prosecution case (the failure to charge earlier ineluctably shows this). In those circumstances this court feels that it had no alternative but to quash the appellant's conviction on court 1 in the indictment, the charge of robbery.

DISPOSITION:
Appeal allowed. Conviction of robbery quashed.

SOLICITORS:
Crown Prosecution Service, West Midlands.