[COURT OF APPEAL]

REGINA v. CHRISTOU

REGINA v. WRIGHT (CHRISTOPHER)

Crime - Evidence - Discretion to exclude - Trick by undercover police resulting in camera and sound records of sale to them of stolen jewellery - Judge considering unfairness at common law and under statute - Whether Codes of Practice applicable - Judge's discretion to admit evidence - Whether properly exercised - Police and Criminal Evidence Act 1984 (c. 60), s. 78(1) - PACE Codes of Practice, C10.1

In an undercover police operation in London a shop was set up purportedly to buy and sell jewellery commercially; it was staffed solely by undercover officers purporting to be shady jewellers willing to buy stolen property. Discreetly sited cameras and sound equipment recorded all that occurred over the counter. The object was to recover stolen property for the owners and obtain evidence against persons who had either stolen or dishonestly handled it. The cameras clearly identified the property on the counter and the vendors who produced it. The conversations between the officers and the vendors essentially concerned bartering about price, and, to maintain their cover, the officers engaged in friendly banter with the vendors, asked questions such as the area of London it would be unwise to resell the goods, and required the signing of receipts recording the money paid for specified goods. The appellants, who each made repeated sales at the shop, pleaded not guilty to indictments charging burglary and handling stolen goods as alternatives. The defence challenged admissibility of the evidence resulting from the undercover operation on

the grounds that it should be excluded either at common law or under section 78 of the Police and Criminal Evidence Act 1984,¹ or as being contrary to paragraph 10.1 of Code C of the Codes of Practice (1985 ed.).² The judge found that the police had been engaged in a trick or deceit, had not acted as agents provocateurs or incited crime, had provided no market which would not have been available elsewhere, and had had grounds to suspect that each appellant had committed an offence by the time when the first sale by him was transacted, but that he had not been cautioned. The judge ruled that the whole operation including the obtaining of fingerprints on the receipts had to be considered as a whole, and, since the evidence at the shop had admittedly been obtained from the appellants by a trick after the offences charged had been committed, he had a discretion at common law to exclude the challenged evidence if its admission would prejudice a fair trial. He concluded that, albeit the discretion he had under section 78 of the Act of 1984 might be wider than the discretion at common law, the criteria of unfairness were the same whether the discretion was being exercised at common law or under the statute, that paragraph C10.1 had no application to the situation, and that admission of the challenged evidence would not have an adverse effect on the fairness of the trial within section 78. Thereupon the appellants changed their pleas to guilty of unlawful possession and were convicted and sentenced.

On appeal against conviction: -

Held, dismissing the appeals, (1) that, in considering the discretion to exclude evidence on the ground of unfairness, it could not sensibly be judged by different standards depending on the source of the discretion, for the criteria of unfairness were the same whether the discretion arose at common law or under section 78 of the Act of 1984; and that, since the judge had considered the operation including obtaining the fingerprints as a whole, the exercise of his discretion was not only not unreasonable but was correct (post, pp. 988D-E, 989D-F).

Reg. v. Sang [1980] A.C. 402, H.L.(E.) applied.

(2) That, although the scope of Code C of the Codes of Practice (1985 ed.) extended beyond persons in detention, it was intended to protect suspects who were, or thought themselves to be, vulnerable to abuse or pressure from police officers, and applied where a suspect was being questioned about an offence by a police officer acting as such for the purpose of obtaining evidence; that, since the appellants were not being questioned by police officers acting as such and conversation was on equal terms, there could be no question of pressure or intimidation by the officers as persons actually or believed to be in authority; and that, accordingly, Code C did not apply in the circum- stances and the judge's approach could not be faulted (post, p. 991A-C, F).

Reg. v. Keenan [1990] 2 Q.B. 54, C.A. considered.

Reg. v. Jelen (1989) 90 Cr.App.R. 456, C.A. explained.

1 Police and Criminal Evidence Act 1984, s. 78: "(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 PACE, Codes of Practice (1985 ed.), C10.1: see post, pp. 989G-990A.

Per curiam. (i) It would be wrong for police officers to adopt or use an undercover pose or disguise to enable themselves to ask questions about an offence uninhibited by the requirements of Code C and with the effect of circumventing it; were they to do so it would be open to the judge to exclude the questions and answers under section 78 of the Act of 1984 (post, p. 991C-D).

(ii) It must be a matter for policy and operational decision by the police as to how they reconcile and balance the need on the one hand to bring an individual offender swiftly to book and deter crime, and on the other, the desirability of apprehending a larger number of offenders and recovering property (post, pp. 991H-992A).

The following cases are referred to in the judgment:

Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948] 1 K.B. 223; [1947] 2 All E.R. 680, C.A.

Callis v. Gunn [1964] 1 Q.B. 495; [1963] 3 W.L.R. 931; [1963] 3 All E.R. 677, D.C.

Director of Public Prosecutions v. Marshall [1988] 3 All E.R. 683, D.C.

Jeffrey v. Black [1978] Q.B. 490; [1977] 3 W.L.R. 895; [1978] 1 All E.R. 555, D.C.

Kuruma v. The Queen [1955] A.C. 197; [1955] 2 W.L.R. 223; [1955] 1 All E.R. 236, P.C.

Reg. v. Apicella (1985) 82 Cr.App.R. 295, C.A.

Reg. v. Jelen (1989) 90 Cr.App.R. 456, C.A.

Reg. v. Keenan [1990] 2 Q.B. 54; [1989] 3 W.L.R. 1193; [1989] 3 All E.R. 598, C.A.

Reg. v. Mason (Carl) [1988] 1 W.L.R. 139; [1987] 3 All E.R. 481, C.A.

Reg. v. O'Leary (1988) 87 Cr.App.R. 387, C.A.

Reg. v. Payne [1963] 1 W.L.R. 637; [1963] 1 All E.R. 848, C.C.A.

Reg. v. Sang [1980] A.C. 402; [1979] 3 W.L.R. 263; [1979] 2 All E.R. 1222, H.L.(E.)

The following additional cases were cited in argument:

Brannan v. Peek [1948] 1 K.B. 68; [1947] 2 All E.R. 572, D.C.

Lam Chi-ming v. The Queen [1991] 2 A.C. 212; [1991] 2 W.L.R. 1082; [1991] 3 All E.R. 172, P.C.

Reg. v. Birtles [1969] 1 W.L.R. 1047; [1969] 2 All E.R. 1131

Reg. v. Grannell (1989) 90 Cr.App.R. 149, C.A.

Reg. v. Mealey (1974) 60 Cr.App.R. 59, C.A.

Reg. v. Penny, The Times, 17 October 1991, C.A.

United States v. Tobias (1981) 662 F.2d 381

APPEALS against conviction.

The appellants, Anastasis Christou and Christopher Wright, on 7 October 1991 in the Crown Court at Wood Green before Judge McMullan and a jury, pleaded not guilty to indictments charging Christou with seven counts of burglary paired with seven counts of handling stolen goods and Wright with 11 counts of burglary paired with 11 counts of handling stolen goods. A voire dire was held concerning the admissibility of evidence intended to be called by the prosecution, namely, evidence in the form of video tapes and sound recordings obtained by undercover police officers in a bogus jeweller's shop, purporting to be willing to purchase stolen property and conversations

and statements arising therefrom. On 16 October 1991, the trial judge ruled that the intended evidence was admissible and he declined to exercise discretion not to admit it. On 17 October, both appellants pleaded guilty to the counts charging handling stolen goods and they were sentenced, Christou to two years' imprisonment and Wright to three years' imprisonment on each count concurrent. An order was made under section 4(2) of the Contempt of Court Act 1981 postponing publication or report of certain details of the proceedings until after the conclusion of all 24 numbered indictments in a schedule, when it would be announced in open court by Judge McMullan that the order had expired; the order stated that the purpose of making it was that it was adjudged to be necessary to avoid a substantive risk of prejudice to the administration of justice in other pending proceedings.

Christou's application for leave to appeal against conviction was refused by the single judge. The application was renewed to the full court (Taylor L.J., Waterhouse and Kennedy JJ.) on 5 March 1992 and was granted, the grounds of appeal being, that conversations between the undercover police officers and the appellant were interviews and, therefore, the rules in the Police and Criminal Evidence Act 1984 and the Police and Criminal Evidence Act 1984 (s. 66) Codes of Practice ("the PACE Codes") ought to have been but were not observed, that the effect of the police operation had been to trick the appellant and his co-accused into self-incrimination, and that pursuant to Reg. v. Sang [1980] A.C. 402 the court ought to have excluded the evidence under section 78 of the Act of 1984.

The application of Wright for leave to appeal against conviction was, also, refused by the single judge. On 16 March 1992 Wright applied for an extension of time in which to renew his application for leave to appeal against conviction and the application was listed to be heard on the same day as Christou's appeal. The extension of time and leave to appeal were granted at the hearing.

The facts are stated in the judgment of the court.

Peter Thornton Q.C., who did not appear below, and Ross Taylor(both assigned by the Registrar of Criminal Appeals) for the appellant Christou. The whole concept of the jewellers' shop involved a trick or deceit by the police for depriving shop visitors of their protection or privilege against self-incrimination. The visitors by their words and conduct in the shop, including producing the goods and signing receipts, were expressly or impliedly incriminating themselves. Although in a sense they entered voluntarily they were tricked into incriminating themselves because they would not have entered the shop if they had known its true nature and the true nature of the managers.

Therefore, the evidence of the events in the shop should have been excluded pursuant to common law as enunciated in Reg. v. Sang [1980] A.C. 402, 435-436, 456-457. [Reference was also made to Kuruma v. The Queen [1955] A.C. 197, 204; Callis v. Gunn [1964] 1 Q.B. 495, 502; Jeffrey v. Black [1978] Q.B. 490; Reg. v. Payne [1963] 1 W.L.R. 637; Reg. v. Birtles [1969] 1 W.L.R. 1047; Brannan v. Peek [1948] 1 K.B. 68 and Reg. v. Mealey (1974) 60 Cr.App.R. 59.] Use of a trick, at least a

trick which is complex and devious, infringes the privilege against self-incrimination Lam Chi-ming v. The Queen [1991] 2 A.C. 212. A trick is equivalent to oppression. Alternatively, the shop evidence should have been excluded under section 78 of the Police and Criminal Evidence Act 1984. The discretion to exclude such evidence under section 78 is wider than the discretion at common law: see Reg. v. Mason (Carl) [1988] 1 W.L.R. 139. The judge took into account irrelevant matters, contrary to Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948] 1 K.B. 223.

The requesting of a receipt from the visitor in order to obtain fingerprints was argued as being regarded separately, that is, as a trick within the main trick constituting the shop; but it is merely an incident in the shop operation, so that the whole operation is a single trick and all the evidence should be excluded. Further, any conversation in the shop is controlled by the Police and Criminal Evidence Act 1984 (s. 66) Codes of Practice, Code of Practice for the Detention, Treatment and Questioning of Persons by Police Officers, C10.1. Code C is not restricted to the police station. Reg. v. Jelen (1989) 90 Cr.App.R. 456, 464 is incorrect. The first sentence of paragraph C10.1 applies to the conversations in the shop. Therefore, a caution is to be given. If the caution renders the shop operation pointless, it should not be undertaken. Since a caution is required, it does not cease to be required simply to facilitate the shop operation.

The shop operation is contrary to public policy since the police ought to arrest the visitors as soon as the police have sufficient evidence. Instead of arresting the appellants the police allowed them to return again and again with further stolen property. The mischief is that the appellants were allowed to commit further offences which would or might not have been committed if they had been arrested earlier. Consequently the shop facilitated the commission of crime if it did not encourage it.

Ross Taylor, who did not appear below (assigned by the Registrar of Criminal Appeals), for the appellant Wright. Wright adopts the sumissions of counsel for the appellant Christou. There is an important distinction between gathering intelligence and gathering evidence. Code C applies to evidence gathering.

Jeremy Carter-Manning and Ann Cotcher for the Crown. The judge's ruling was correct. The police were following a long tradition of using undercover investigation. The undertaking was the first example of its kind in this country. It was a police policy-making decision whether such undercover work should be carried out. The police officers could not caution the vendors because it would give the game away. The purpose of the operation was to recover stolen property and to enable the officers to be undiscovered.

The first question for the court is whether the authorities on trick are such as to give the trial judge a discretion. The answer is "Yes." The next question is whether there is anything which means that the trial judge could not reach the conclusion that he did. Each case turns on its own facts. Few of the authorities before the Police and Criminal Evidence Act 1984 go in favour of exclusion of evidence. The trick was

not unfair. The officers' purpose was not to obtain video-interview type of evidence. As to the receipts provided by the vendor, they were not obtained entirely for the purpose of obtaining fingerprints. They were necessary to maintain the police officers' cover: see Director of Public Prosecutions v. Marshall [1988] 3 All E.R. 683 and Reg. v. Apicella (1985) 82 Cr.App.R. 295. It is not unfair to obtain by one route evidence which is obtainable otherwise but at much greater length. The receipt should not be treated separately from the other evidence. The reality is that this case has an embarrassment of evidence, of recent possession, burglary, tied up by losses and the items offered for sale. [Reference was made to Reg. v. Penny, The Times, 17 October 1991 and to United States v. Tobias (1981) 662 F. 2d 381.]

As to the PACE Codes, it is wrong to approach them as applying to undercover police work. They apply mainly to detainees and arrested persons: Reg. v. Jelen, 90 Cr.App.R. 456. This is not a Code case. The application of such a Code to undercover police work produces a nonsense. If the Codes apply, the officers are caught by C10. If read literally the paragraph refers to express questions. Even if the Code does apply and is breached, the evidence may be admissible in the judge's discretion: Reg. v. Keenan [1990] 2 Q.B. 54, 69G and Reg. v. Grannell (1989) 90 Cr.App.R. 149.

Thornton Q.C. in reply. [Reference was made to Reg. v. O'Leary (1988) 87 Cr.App.R. 387.] The judge's ruling was wrong. The evidence ought to have been excluded. It was obtained by a trick of such a nature that only exclusion could follow. The admission of the evidence was unfair. The verdicts are unsafe and unsatisfactory.

Ross Taylor, in reply, adopted submissions of counsel for the appellant Christou.

21 May. LORD TAYLOR OF GOSFORTH C.J. read the following judgment of the court. This case arises from an undercover police operation said to be unique in this country. The appeal turns on whether evidence obtained by the operation should have been admitted by the trial judge.

Late in 1990, being anxious to combat a high rate of burglary and robbery in parts of North London, the police resorted to an unorthodox stratagem. Although novel in this country, it is said that similar operations have been mounted in the United States.

A shop was set up in Tottenham named "Stardust Jewellers." It purported to be conducting the business of buying and selling jewellery on a commercial basis. In fact, it was a police exercise and was solely staffed by two undercover officers calling themselves Gary and Aggi. They purported to be shady jewellers willing to buy in stolen property. Cameras and sound recording equipment were discreetly sited in the shop so as to record all that occurred over the counter. Some transactions were conducted with honest customers but the object of the exercise was to recover stolen property for the owners and obtain evidence against those who had either stolen or dishonestly handled it. The cameras

clearly identified the property as it lay on the counter, and the vendors who produced it. Apart from Gary and Aggi, other officers observed the dealing by video-link. The conversations between Gary and Aggi and the various vendors of stolen property were recorded. They were essentially concerned with bartering about a price, for which purpose Gary and Aggi had sufficient expertise to comment on the quality and value of the jewellery. But, to maintain their cover, they engaged in friendly banter with the vendors and also asked questions which a shady jeweller might be expected to ask. Thus, the vendors were asked in which area of London it would be unwise to resell the goods. A shady jeweller would want to know that, but the answer was helpful to the police whose next task after recovering the goods and identifying those handling them was to trace the true owners and discover when the theft had occurred. In all the instances concerned in this case, the goods were traced and the thefts had occurred within a day or so of the goods being presented to Stardust Jewellers. Gary and Aggi also required the vendors to sign receipts recording the money paid and the specific goods. This again was something a shady jeweller would be likely to do to cover himself. However, it also had the effect of obtaining fingerprints from the vendor. In the event, those fingerprints were not sought to be compared or used in evidence. The cameras provided clear and sufficient evidence of the identity, both of the vendors and the goods they produced.

Over the three-month life of this shop, the police recovered for the owners a great deal of stolen property. They were also able to charge some 30 men with various offences. Some of those men visited the shop many times. The appellant Wright came first in December 1990 and kept returning. He was charged in respect of 12 transactions with burglary, and handling as alternatives. The appellant Christou first came in with Wright on 15 January 1991. He was charged in respect of seven transactions.

At their trial on 7 October 1991, the appellants pleaded not guilty. After the jury was sworn, there began immediately a seven-day voire dire in which the defence challenged the admissibility of all the evidence resulting from the undercover operation. On 16 October, the judge rejected the submissions and on 17 October, the appellants, together with three co-accused, changed their pleas to guilty of handling in respect of each of the transactions in which they were involved. Those pleas were accepted. The judge imposed concurrent periods of three years' imprisonment on Wright and two years on Christou on each of the charges to which they pleaded guilty.

Christou now appeals by leave of the full court after refusal by the single judge and we have granted leave to Wright. The submissions on this appeal are essentially those rejected by the judge. Mr. Thornton argued first that the whole concept of Stardust Jewellers involved a deceit or trick by the police designed to deprive visitors to the shop of their protection or privilege against self-incrimination. By their words and conduct in the shop, including their production of the goods and signing of the receipts, they were expressly or impliedly incriminating themselves. They were tricked into doing so because, although in a

sense they entered voluntarily, they would not have entered had they known the true nature of the shop and its managers. Accordingly, the evidence ought to have been excluded either (a) pursuant to the common law principles enunciated in Reg. v. Sang [1980] A.C. 402, or (b) pursuant to section 78 of the Police and Criminal Evidence Act 1984. Secondly, Mr. Thornton argues that the conversation in the shop was within the scope of the Code of Practice for the Detention, Treatment and Questioning of Persons by Police Officers, issued by the Home Secretary under section 66 of the Police and Criminal Evidence Act 1984 ("PACE Codes of Practice, Code C").

Before considering these arguments, it is convenient to summarise those findings of the judge which are not in dispute. The police were clearly engaged in a trick or deceit. However, they did not themselves participate in the commission of any offence; nor did they act as "agents provocateurs" or incite crime. The offences charged had already been committed before the appellants entered the shop and the police, so far from having any dishonest intent, were concerned to return the property to its rightful owners and bring offenders to justice. The police referred daily to the current price of gold announced by Johnson Matthey and pitched the prices they offered appropriately to the form of dealing in which they purported to be engaged. So, no market was provided which would not have been available elsewhere.

The officers had grounds to suspect each appellant of having committed an offence by the time the first of the sales in which he was involved was transacted. No caution was administered by Gary or Aggi. That was in accordance with instructions they were given.

The first limb of Mr. Thornton's first submission depends strongly on the speeches in Reg. v. Sang [1980] A.C. 402. The House of Lords held unanimously that there is no defence of entrapment in English law. However, the existence of a discretion in the judge to exclude legally admissible evidence, so as to secure the fairness of the trial, was recognised as extending further than merely the exclusion of evidence more prejudicial than probative. Mr. Thornton relies particularly on the speeches of Lord Diplock and Lord Scarman.

Lord Diplock cited dicta of Lord Goddard C.J. in Kuruma v. The Queen [1955] A.C. 197, 204, of Lord Parker C.J. in Callis v. Gunn [1964] 1 Q.B. 495, 502, and of Lord Widgery C.J. in Jeffrey v. Black [1978] Q.B. 490, 498. Lord Diplock also pointed out that the only case brought to their Lordships' attention in which an appellate court had actually excluded evidence on the ground that it had been unfairly obtained by a trick was Reg. v. Payne [1963] 1 W.L.R. 637. There a defendant, charged with drunken driving, had been induced to undergo a medical examination to see if he was ill on the understanding that the doctor would not test his fitness to drive. However, the doctor gave evidence based on his examination that the defendant was unfit to drive and the Court of Criminal Appeal quashed the conviction. On that decision Lord Diplock commented [1980] A.C. 402, 435:

"This again, as it seems to me, is analogous to unfairly inducing a defendant to confess to an offence, and the short judgment of the

Court of Criminal Appeal is clearly based upon the maxim nemo debet prodere se ipsum."

The passage relied upon by Mr. Thornton is where Lord Diplock said, at pp. 435-436:

"Nevertheless it has to be recognised that there is an unbroken series of dicta in judgments of appellate courts to the effect that there is a judicial discretion to exclude admissible evidence which has been 'obtained' unfairly or by trickery or oppressively, although except in Reg. v. Payne [1963] 1 W.L.R. 637, there never has been a case in which those courts have come across conduct so unfair, so tricky or so oppressive as to justify them in holding that the discretion ought to have been exercised in favour of exclusion. In every one of the cases to which your Lordships have been referred where such dicta appear, the source from which the evidence sought to be excluded had been obtained has been the defendant himself or (in some of the search cases) premises occupied by him; and the dicta can be traced to a common ancestor in Lord Goddard's statement in Kuruma v. The Queen [1955] A.C. 197 which I have already cited. That statement was not, in my view, ever intended to acknowledge the existence of any wider discretion than to exclude (1) admissible evidence which would probably have a prejudicial influence upon the minds of the jury that would be out of proportion to its true evidential value; and (2) evidence tantamount to a self-incriminatory admission which was obtained from the defendant, after the offence had been committed, by means which would justify a judge in excluding an actual confession which had the like self-incriminating effect."

Finally, Lord Diplock said, at p. 436:

"the function of the judge at a criminal trial as respects the admission of evidence is to ensure that the accused has a fair trial according to law. It is no part of a judge's function to exercise disciplinary powers over the police or prosecution as respects the way in which evidence to be used at the trial is obtained by them."

Lord Scarman also referred to the judge's duty to ensure that the defendant has a fair trial. In a passage he himself acknowledged was obiter, he said, at p. 456:

"The test of unfairness is not that of a game: it is whether in the light of the considerations to which I have referred the evidence, if admitted, would undermine the justice of the trial. . . . For the conviction of the guilty is a public interest, as is the acquittal of the innocent."

After referring, as did Lord Diplock, to the dicta of Lord Goddard C.J., Lord Parker C.J. and Lord Widgery C.J., Lord Scarman went on, at pp. 456-457:

"The dicta of three successive Lord Chief Justices are not to be lightly rejected. It is unnecessary for the purposes of this appeal, to express a conclusion upon them. But, always provided that these

dicta are treated as relating exclusively to the obtaining of evidence from the accused, I would not necessarily dissent from them. If an accused is misled or tricked into providing evidence (whether it be an admission or the provision of fingerprints or medical evidence or some other evidence), the rule against self-incrimination . . . is likely to be infringed. Each case must, of course, depend on its circumstances. All I would say is that the principle of fairness, though concerned exclusively with the use of evidence at trial, is not susceptible to categorisation or classification and is wide enough in some circumstances to embrace the way in which, after the crime, evidence has been obtained from the accused."

In view of the terms of those dicta, the paucity of cases in which the discretion has been exercised so as to exclude legally admissible evidence is not surprising. In the present case the judge decided that, since the evidence from Stardust Jewellers had admittedly been obtained from the appellants by a trick and after the offences charged had been committed, he had a discretion to exclude the evidence if its admission would prejudice a fair trial. He also considered the alternative submission that, pursuant to section 78 of the Act of 1984, he ought to exclude the evidence because, in the words of section 78:

"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."

The judge held that the discretion under section 78 may be wider than the common law discretion identified in Reg. v. Sang [1980] A.C. 402, the latter relating solely to evidence obtained from the defendant after the offence is complete, the statutory discretion not being so restricted. However, he held that the criteria of unfairness are the same whether the trial judge is exercising his discretion at common law or under the statute. We agree. What is unfair cannot sensibly be subject to different standards depending on the source of the discretion to exclude it.

In the result the judge concluded that to admit the challenged evidence would not have an adverse effect on the fairness of the trial. He said:

"Nobody was forcing the defendants to do what they did. They were not persuaded or encouraged to do what they did. They were doing in that shop exactly what they intended to do and in all probability, what they intended to do from the moment they got up that morning. They were dishonestly disposing of dishonest goods. If the police had never set up the jewellers shop, they would, in my judgment, have been doing the same thing, though of course they would not have been doing it in that shop, at that time. They were not tricked into doing what they would not otherwise have done, they were tricked into doing what they wanted to do in that place and before witnesses and devices who can now speak of what happened. I do not think that is unfair or leads to an unfairness in the trial."

Putting it in different words, the trick was not applied to the appellants; they voluntarily applied themselves to the trick. It is not every trick producing evidence against an accused which results in unfairness. There are, in criminal investigations, a number of situations in which the police adopt ruses or tricks in the public interest to obtain evidence. For example, to trap a blackmailer, the victim may be used as an agent of the police to arrange an appointment and false or marked money may be laid as bait to catch the offender. A trick, certainly; in a sense too, a trick which results in a form of self-incrimination; but not one which could reasonably be thought to involve unfairness. Cases such as Reg. v. Payne [1963] 1 W.L.R. 637 and Reg. v. Mason (Carl) [1988] 1 W.L.R. 139 are very different from the present case or the blackmail example. In Reg. v. Mason as in Reg. v. Payne [1963] 1 W.L.R. 637, the defendant was in police custody at a police station. Officers lied to both the defendant and his solicitor. Having no evidence against the defendant, they falsely asserted that his fingerprint had been found in an incriminating place in order to elicit admissions from him. After advice from his solicitor, the defendant made admissions. This court quashed his conviction.

In the present case the argument was at one stage canvassed that requesting the receipt with the consequent obtaining of fingerprints, should be regarded separately from the main issue, that it amounted to a separate trick within a trick. However, Mr. Thornton made clear that in his submission requesting the receipt was merely an incident in the operation of the shop. The whole operation was a single trick, all the fruits of which should be excluded. We agree that the operation should be considered as a whole. In the end, the judge treated the receipts as "part of the general deceit concerning the dishonest jewellers, the general pretence by them that it was a proper jeweller's shop." It was not unfair. He gave, as a further reason, that had no request been made for a receipt, fingerprints could easily have been obtained in other ways, e.g., by dusting the counter. For this he relied upon Reg. v. Apicella (1985) 82 Cr.App.R. 295 and Director of Public Prosecutions v. Marshall [1988] 3 All E.R. 683.

The judge's exercise of his discretion could only be impugned if it was unreasonable according to Wednesbury principles (Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948] 1 K.B. 223): see Reg. v. O'Leary (1988) 87 Cr.App.R. 387, 391. In our judgment, not only can the judge's conclusion on this issue not be so stigmatised; we think he was right.

The other ground of appeal turns on paragraph 10.1 of Code C of the PACE Codes. Paragraph 10 is headed "Cautions (a) When a caution must be given," and it reads:

"10.1 A person whom there are grounds to suspect of an offence must be cautioned before any questions about it (or further questions if it is his answers to previous questions that provide grounds for suspicion) are put to him for the purpose of obtaining evidence which may be given to a court in a prosecution. He therefore need not be cautioned if questions are put for other purposes, for example, to establish his identity, his ownership of, or

responsibility for, any vehicle or the need to search him in the exercise of powers of stop and search."

It is submitted that the first sentence of that paragraph applied to the conversations in the shop. Accordingly, a caution should have been given. It is obvious that if this submission is correct, setting up Stardust Jewellers would have been pointless. Mr. Thornton and Mr. Taylor grasped that nettle. They say that the operation should not have been undertaken. If a caution was required, it cannot be dispensed with simply to facilitate the operation. It is accepted that Gary and Aggi had grounds to suspect each of the appellants of an offence. The issue is whether the Code applied to this situation at all. The judge concluded it did not. He relied upon a passage in the judgment of this court in Reg. v. Jelen (1989) 90 Cr.App.R. 456. Auld J., delivering the judgment of the court, said, at p. 464:

"The provisions of the Code governing the detention, treatment and questioning of persons by police officers are for the protection of those who are vulnerable because they are in the custody of the police. They are not intended to confine police investigation of crime to conduct which might be regarded as sporting to those under investigation."

That passage is not quite accurate. It is true that the provisions of the Code are very largely concerned with those who are in custody, but not exclusively so. Thus, the first nine paragraphs are concerned with those in detention. However, paragraph 10.1 and other paragraphs dealing with interviews are not confined to those in custody. The judge recognised that the quoted passage required some qualification. His amendment was that the Code was intended to apply to people under detention "or people for whom detention is becoming, as it were, imminent." Even that amendment may be too restrictive.

The judge further relied on observations of Hodgson J. giving the judgment of this court in Reg. v. Keenan [1990] 2 Q.B. 54, 63, which also concentrated on those in detention, as follows:

"Code C, in extension of the provisions of Part III (arrest), Part IV (detention) and Part V (questioning and treatment of persons by police) of the Act of 1984, addresses two main concerns. First, it provides safeguards for detained persons and provides for their proper treatment with the object of ensuring that they are not subjected to undue pressure or oppression. Equally importantly, these code provisions are designed to make it difficult for a detained person to make unfounded allegations against the police which might otherwise appear credible. Second, it provides safeguards against the police inaccurately recording or inventing the words used in questioning a detained person. These practices are compendiously described by the slang terms 'to verbal' and 'the verbals.' Again, equally importantly, the provisions, if complied with, are designed to make it very much more difficult for a defendant to make unfounded allegations that he has been 'verballed' which appear credible."

In our view, although the Code extends beyond the treatment of those in detention, what is clear is that it was intended to protect suspects who are vulnerable to abuse or pressure from police officers or who may believe themselves to be so. Frequently, the suspect will be a detainee. But the Code will also apply where a suspect, not in detention, is being questioned about an offence by a police officer acting as a police officer for the purpose of obtaining evidence. In that situation, the officer and the suspect are not on equal terms. The officer is perceived to be in a position of authority; the suspect may be intimidated or undermined.

The situation at Stardust Jewellers was quite different. The appellants were not being questioned by police officers acting as such. Conversation was on equal terms. There could be no question of pressure or intimidation by Gary or Aggi as persons actually in authority or believed to be so. We agree with the judge that the Code simply was not intended to apply in such a context.

In reaching that conclusion, we should ourselves administer a caution. It would be wrong for police officers to adopt or use an undercover pose or disguise to enable themselves to ask questions about an offence uninhibited by the requirements of the Code and with the effect of circumventing it.

Were they to do so, it would be open to the judge to exclude the questions and answers under section 78 of the Act of 1984. It is therefore necessary here to see whether the questioning by Gary and Aggi was such as to require the judge in his discretion to exclude the conversation. The judge carefully reviewed the evidence on this issue. He concluded that the questions and comments from Gary and Aggi were for the most part simply those necessary to conduct the bartering and maintain their cover. They were not questions "about the offence." The only exception was the questioning about which area should be avoided in reselling the goods. However, even that was partly to maintain cover since it was the sort of questioning to be expected from a shady jeweller.

We are of the view that the judge's approach to the aspect of the case concerned with the Code cannot be faulted.

Before parting with the case, we should refer to a further argument mounted by Mr. Thornton. He submitted that the undercover exercise, lasting as it did for some three months, was contrary to public policy. The basis for that submission was that the officers ought to have arrested offenders as soon as they had sufficient evidence. Instead, they allowed offenders such as these two appellants to return again and again with further stolen property. Only when the shop was wound up were charges brought. The mischief alleged is that offenders were allowed to commit further offences which would or may have been obviated had they been arrested earlier. The existence of the shop was therefore facilitating, if not encouraging, the commission of crime.

Clearly, it must be a matter for policy and operational decision by the police as to how they reconcile and balance the need on the one hand to bring an individual offender swiftly to book and deter crime,

and on the other, the desirability of apprehending a larger number of offenders and recovering property.

For the reasons already expressed, these appeals are dismissed.

24 July. The Court of Appeal (Lord Taylor of Gosforth C.J., Swinton Thomas and Judge JJ.), in accordance with section 33(2) of the Criminal Appeal Act 1968, certified that a point of law of general public importance was involved in the questions, "(1) whether evidence obtained by a trick, consisting of words spoken by a defendant in conversation with undercover police officers, should be excluded at common law or under section 78 of the Police and Criminal Evidence Act 1984; and (2) whether the Codes of Practice of the Police and Criminal Evidence Act 1984 for the detention, treatment and questioning of persons by police officers (issued under sections 66 and 67 of the Act of 1984) applied to conversations between undercover police officers and a suspect."

Solicitors: Crown Prosecution Service, North London.

L. N. W.