|Neutral Citation No.  NICA 7||Ref:||KER7070|
Judgment: approved by the Court for handing down
|(subject to editorial corrections)*|
IN HER MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND
Before Kerr LCJ, Higgins LJ and Girvan LJ
 On 28 October 2005, following a trial before His Honour Judge Smyth QC and a jury, Deborah Bothwell was convicted of possession of a Class B controlled drug, contrary to section 5(2) of the Misuse of Drugs Act 1971, and possession of the drug with intent to supply, contrary to section 5(3) of the Act. On 6 February 2006 she was sentenced to eighteen months’ imprisonment on each charge, the sentences to run concurrently. Leave to appeal against her conviction was granted by the single judge.
 The appellant had been jointly charged with a co-accused, Mark Surgenor, who was then her boyfriend. He pleaded guilty to the charges and was sentenced to a custody probation order, comprising four years’ imprisonment and eighteen months’ probation.
 The charges arose from the discovery of a very substantial quantity of amphetamines in two hold-all bags in the boot of the appellant’s car on 22 December 2004. Her car had been stopped by police on the Scotstown Road, Ballymena. Ms Bothwell was in the passenger seat. The driver was Mr Surgenor. The vehicle was searched at 8.30 pm and when the drugs were found, a Constable McIlwaine arrested the appellant and cautioned her in the terms required by article 3 of the Police and Criminal Evidence (Northern Ireland) Order 1989. She made no reply.
 Constable McIlwaine and Detective Constable Brannigan interviewed the appellant at Ballymena police station between 11.04pm and 11.36pm the same evening. After being again cautioned, she was asked to account for the presence of the hold-alls containing the drugs and replied, “I have no idea”. She said that she knew nothing about the drugs. She described for police what had been in the boot of the car at about 1pm that day when she was putting Christmas presents into it. She then said that after leaving her daughter to her sister’s house, she and Mr Surgenor went for a drive. When asked where they had gone, she said “down south, through Belfast”. She had not paid particular attention to the route that they took but when she noticed that the road signs referred to kilometres rather than miles she realised that they were in the Republic of Ireland.
 Ms Bothwell said that on the way down south, they stopped at a garage to put water in the windscreen washer tank and, while there, she went to the lavatory. Later they bought something to eat at a salad bar, ate this in the car and then drove back. They had not planned to go to Mr Surgenor’s house (which is in Ballymena) but decided to ‘pop up’ there. She was unsure of whether they would have spent the night there or in Greenisland where she lived.
 When asked if it was possible that someone could have put the hold-all bags in the car during their journey, Ms Bothwell said that she doubted it since the boot could only be opened with a key or by pulling a lever inside the car. She had been out of the car only twice during the entire journey, on each occasion for about five minutes. These were when she got something to eat and when she went to the lavatory. She had not seen the hold-alls at any time and was even completely unaware of their appearance. Ms Bothwell was interviewed on a number of occasions the following day and maintained throughout that she knew nothing about the drugs and that no-one had put hold-all bags into the car while she was in it.
 Mark Surgenor was also arrested at the scene and taken separately to Ballymena police station. During the journey he said to the police officers who were conveying him, “it’s her car, we went down to Belfast Docks and they put two bags into the back, she knew nothing about it” and “I was asked to pick up two bags, money is tight coming up to Christmas. I was to get £10,000 for it” and “I was to put them in a hedge.”
 At 10.00pm on 22 December, before the first interview with Ms Bothwell began, she was taken to the medical room in the police station to be examined. Constable Julie McAllister escorted Ms Bothwell to the medical room; she remained with her while the examination took place and then took her back to the cell. According to the custody record the appellant was returned to her cell at 10.20pm.
 Constable McAllister made the following entry in her notebook concerning a statement that Ms Bothwell made to her as the officer was placing her in the cell: –
“Following the examination I placed Deborah back in her cell and as I was doing so she stated the following to me ‘Why are you going to my house? I don’t want you to go there. You won’t find any drugs there. I don’t do drugs. You won’t find any drugs at Mark’s either, I’m sure. We were just asked to pick up two bags that’s all.’”
 The time that this was entered in the notebook was not recorded but it must have been shortly after 10.20pm for the time of the next entry is recorded as 10.30pm. It was not shown or read to Ms Bothwell and she was not invited to read the record of the alleged remark or to sign it as correct or to indicate the respects in which she considered it to be inaccurate – (these are requirements of the relevant Code of Practice to which we will refer in greater detail below).
 A voire dire hearing was held to examine the admissibility of the statement which Constable McAllister claimed that Ms Bothwell had made. Ms Bothwell did not give evidence at this stage but it was put to Constable McAllister that the appellant had not made the remark, “We were just asked to pick up two bags, that’s all”. The police officer asserted firmly that Ms Bothwell had made the statement. She accepted, however, that she had not made the entry in her notebook immediately – it had been recorded shortly afterwards – and that she had not shown it to the appellant or asked her to authenticate it. Constable McAllister claimed that she could not remember whether she told any other officer about the entry until after the interviews but the judge concluded that it was likely that she had not done so. The imputed remark was highly relevant to the inquiry and it is inconceivable that, if the interviewing officers were aware of it, they would not have used it to challenge the repeated assertions of Ms Bothwell that she was unaware of the existence of the holdalls.
 Mr Barra McGrory, solicitor advocate, appeared for Ms Bothwell at her trial and he submitted to the trial judge that the evidence of the police officer about the remark should not be admitted. The trial judge recorded Mr McGrory as having made this application on two grounds: firstly, because of the constable’s failure to comply with the terms of paragraph 11(c)(13) of Code C of Police and Criminal Evidence (Northern Ireland) Order 1989 Codes of Practice and secondly, that the judge should exercise his discretion under articles 76 and 74 of the Police and Criminal Evidence (Northern Ireland) Order 1989. Although, as the judge had earlier stated, Mr McGrory had made the case that the statement had not been made at all, he does not appear to have invited the judge to refuse to admit the evidence on that account.
 Having considered the submissions of Mr McGrory and counsel for the prosecution, Mrs Kitson, the judge ruled that the evidence should be admitted. He gave the following reasons: –
“13. As I have said, there are at least two breaches of the Code by the police. The entry was not dated, timed and signed by the officer and Miss Bothwell was not invited to accept or reject it. It was not, as it should have been, put to the suspect in the next appropriate interview.
- However, I am satisfied that this was not trickery or deliberate withholding by Constable McAllister. I am also satisfied that the entry was made as soon as it practicably could be. To my mind the accuracy and reliability of what was said are not in question, and put at its height, the suspect has been deprived of an opportunity to deny, affirm or to qualify the comments she is recorded as saying.
- I am of the view that the admission of these comments (bearing in mind the overall circumstances and the way in which I can comment upon them) would not have such an effect on the fairness of proceedings that I should not admit them in evidence.
- I have had regard to the significance of the Code and also to the way in which these breaches relate to the case against Miss Bothwell and to the manner in which they occurred. It has not been suggested that Constable McAllister concocted the evidence. A record was made by her as soon as practicable and given the time when it must have been made I do not find that the failure to date and sign this and to ensure that interviewing officers put it to Miss Bothwell is, in the circumstances of this case, such a significant or substantial breach of the Code that the evidence should be excluded.
- These comments were admissions against interest but volunteered outside the context of an interview and were recorded as soon as reasonably practicable. The breaches of the Code that followed happened because of inadvertence but were not of the nature of the significant, substantial breaches that the court was referring to in R.-v-Keenan  2QB 54 …
- Constable McAllister made the entry in her notebook after she had returned Miss Bothwell to her cell. By 11.33 p.m. Constable McAllister was in interview with Mark Surgenor but not Miss Bothwell.
- I in particular have had regard to the authorities helpfully provided by Mr McGrory and in particular toR.-v-Scott  Crim Law Review. This concerned a comment allegedly made by Scott after he had asked to listen to the interview of his co-accused. This was used in the trial to suggest that Scott had adopted the admissions made by his co-accused when he said, “he’s said too much. We’d have got off with it if he had said nothing.” In that case a record was made but Scott was not invited to sign it or to read it or to sign any comment. Its admission set in train a chain of events that is not applicable here. The comments volunteered by Miss Bothwell were not in any formal or even informal interview situation. They were recorded as soon as practical. The failure to put them to Miss Bothwell and to invite her to sign them did not have the consequences that ensued for Mr Scott.
- I neither find that the admission of the evidence would have such an adverse effect on the fairness of these proceedings that I should not admit it (Article 76 PACE) nor do I find that any admission against interest made in those circumstances would be unreliable when one considers all of the circumstances I have outlined above (Article 74(2)(b)) namely if one regards the failure of the police to put those comments to Miss Bothwell in interview as a thing done by the police and if one also regards the comments by Miss Bothwell as being an admission against interest and being tantamount to a confession.
- I bear in mind the case, as made by Mr McGrory, is that Miss Bothwell did not make these comments. I, however, do not find that anything done by the Police in all these circumstances makes these comments, allegedly made by Miss Bothwell, unreliable. The question is whether she made or did not make these comments and this in my view is a matter for the jury and I so rule.”
 Although the judge stated that it had not been suggested to Constable McAllister that she had concocted the remark, this is somewhat difficult to reconcile with the fact that Mr McGrory had put to the witness that the comment had never been made. Furthermore, although the judge purported to eschew any view on whether the comment had been made (since this was a matter for the jury) he clearly formed the view that the police officer had not acted from improper motives in failing to communicate the alleged remark to the interviewing officers. Finally, the judge made no reference to the fact that the witness did not raise Ms Bothwell’s alleged remark with Mr Surgenor in interview despite his assertion that she knew nothing about the drugs. In fairness to the judge, this last issue was not raised in cross examination, although, for reasons that we will come to, we consider that it was relevant to the question whether the evidence should have been admitted.
 Mr Barry Macdonald QC, who appeared with Mr Conor O’Kane for the appellant before this court, made three principal submissions: –
- There had been a failure on the part of those who represented Ms Bothwell on trial to cross-examine Constable McAllister during the voire dire with a view to discrediting her and establishing that, far from being a technical breach caused by inadvertence on her part, the omission to comply with the Code of Practice was attributable either to the fact that the notes had not been made until some time later or, alternatively, that she had deliberately breached the Code in order to make it more difficult for the appellant to dispute the content of the note.
- The learned trial judge erred in refusing to exclude the evidence;
- On the trial itself the legal representative for the defence should have challenged Constable McAllister more effectively about her evidence that the appellant had made the alleged remark. Ms Bothwell’s instructions, it was claimed, were that she had said something along the lines of the first part of the statement that the police officer had attributed to her but that this had been uttered to the custody sergeant rather than Constable McAllister. Moreover, her statement to the custody sergeant had been made in the presence of a number of other officers. It was therefore claimed that those other officers should have been cross examined to establish that none of them had heard the alleged inculpatory remark. The failure to do this lost a vital opportunity to undermine Constable McAllister’s evidence on this critical issue.
 For reasons that will appear, it is not necessary to consider the first and third of these arguments at any length. It may be observed, however, in relation to the first submission (that, during the voire dire, the defence ought to have pursued the case that the statement attributed to Ms Bothwell had not been made) that this claim is at least controversial. In R v McKeown  NICA 42 this court said at paragraphs  and : –
“ We could not agree with a proposition that ‘the discretionary exclusion only arises if there is evidence in the first place that the confession was made’ if that were to have general application (although we do not understand the judge to be propounding this as a rule of general application). On the contrary, we consider that in suitable cases the issue of discretionary exclusion can arise and be determined without the need to reach a conclusion as to whether the confession had in fact been made. The subject is dealt with in Blackstone at F17.28:
‘Where the defence in a trial on indictment challenge the confession under s 78 [the equivalent in the English legislation of article 76], they may ultimately wish to assert at the trial that no confession was made . . . The issue at the voir dire is simply whether the introduction of the confession would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it. It is not the function of the judge to decide whether the confession was made (Keenan). See howeverAlladice  87 Cr App Rep 380, in which the trial judge reached such a decision before deciding to admit the statement.’
 There are some cases, however, where the question whether a confession was in fact made is so bound up with the issue of the fairness of admitting it in evidence that it becomes necessary to address the question whether it was in fact made – see, for instance, Ajodha v The State  AC 204,  2 All ER 193. Whether a particular case should be subject to this approach will depend heavily on the judge’s assessment of the requirements of fairness in the specific circumstances. An appellate court should be slow to interfere with what is essentially a discretionary judgment. We are not surprised that the judge felt it necessary to address the question whether the confession was in fact made before deciding if it would be fair to admit it in evidence and we would certainly not be prepared to say that he was wrong to do so.”
 In the present case it is, unfortunately, not entirely clear whether the judge decided that it was necessary for him to determine if the statement had in fact been made or that this should be left to the jury. On the one hand he said, “the accuracy and reliability of what was said are not in question” and, on the other, he later suggested that, “the question … whether she made or did not make these comments … is a matter for the jury”. In general the decision on whether something was or was not said by an accused person is a jury function. On an application that the evidence should be excluded the trial judge should focus on the impact that it would have on the fairness of the trial if the evidence is admitted, rather than on whether the statement was in fact made. Only where he feels unable to determine if it would have an unacceptable impact on the fairness of the trial, without addressing the issue whether the statement was actually made, should he embark on that inquiry.
The Code of Practice
 The most relevant provision of Code C that was in force at the time of the appellant’s arrest was: –
“11.3 A written record shall be made of any comments made by a suspect, including unsolicited comments, which are outside the context of an interview but which might be relevant to the offence. Any such record must be timed and signed by the maker. When practicable the suspect shall be given the opportunity to read that record and to sign it as correct or to indicate how (s)he considers it inaccurate.”
 This provision was not observed in a number of respects. The record was not timed. Ms Bothwell was not given the opportunity at any time to read the record nor was she invited to sign it as correct or to indicate how she considered it to be inaccurate. The failure to time the record is perhaps more significant than might first appear. If the record had been timed, a more reliable check could have been made of whether other officers were in the vicinity at the time and should have overheard the remark. An examination of other police officers’ notebooks and the custody record might well have established the identity of those who were present and should have heard the statement. If it could be elicited in cross examination that they had been present when the remark was made but did not hear it, this would have made considerable inroads in the reliability of the evidence of Constable McAllister.
 Although, for the reasons given above, the question whether the remark was made would have been a matter for the jury, the significance of the issue at the time that the application was made to exclude the evidence must not be overlooked. It should have been recognised at that stage that the failure to time the entry could have reduced the impact of the challenge to the evidence that the remark had been made. This in turn should have influenced the judge’s assessment of whether the admission of the evidence would have an unacceptably adverse effect on the fairness of the proceedings.
 Paragraph 11.5 of the Code is also relevant. It provides: –
“At the beginning of an interview the interviewer, after cautioning the suspect, shall put to him/her any significant statement or silence which occurred in the presence and hearing of a police officer or other police staff before the start of the interview and which has not been put to the suspect in the course of a previous interview. The interviewer shall ask the suspect whether (s)he confirms or denies that earlier statement or silence and if (s)he wants to add anything.”
 Because Constable McAllister told no-one about the remark that Ms Bothwell is alleged to have made, it was never put to her in interview that she had made the statement. This makes the interviews entirely incongruous since she consistently and repeatedly denied throughout that she knew anything about the hold-alls. In our judgment, the trial judge ought to have recognised this obvious anomaly. The lack of opportunity to deal with a remark attributed to her that was entirely at odds with what she was telling the interviewers was a significant drawback for the appellant in that it meant that she could not confront this allegation immediately.
Article 76 of PACE
 Article 76 (1) of PACE provides: –
“Exclusion of unfair evidence
- – (1) In any criminal 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.”
 It will be seen that the emphasis here is on the impact that the evidence will have on the fairness of the proceedings. The provision is not designed to punish the prosecuting authorities for a failure to comply with statutory requirements of the terms of Codes of Practice – see Blackstone’s Criminal Practice paragraph F17.17 to the effect that it is not the function of the court to use thePACE 1984, s. 78, (the equivalent of article 76) to discipline the police (Mason  1 WLR 139; Canale 2 All ER 187).
 Breach of a provision of the Code will not automatically lead to the exclusion of a confession (see, e.g., Delaney (1988) 88 Cr App R 338, where the Court of Appeal in England and Wales held that ‘… the mere fact that there has been a breach of the PACE Codes does not of itself mean that evidence has to be rejected’). The touchstone will always be the effect of the breach on the fairness of the proceedings. But the nature and extent of the breach must be considered in making an assessment of that issue. In Walsh (1989) 91 Cr App R 161, the defendant had been denied access to legal advice, and it was common ground that there had been a breach of section 58 of PACE. The Court of Appeal said (at p. 163): –
“The main object of section 58 of the Act and indeed of the codes of practice is to achieve fairness — to an accused or suspected person so as, among other things, to preserve and protect his legal rights; but also fairness for the Crown and its officers so that again, among other things, there might be reduced the incidence or effectiveness of unfounded allegations of malpractice.
To our minds it follows that if there are significant and substantial breaches of section 58 or the provisions of the code, then prima facie at least, the standards of fairness set by Parliament have not been met. So far as a defendant is concerned, it seems to us also to follow that to admit evidence against him which has been obtained in circumstances where these standards have not been met, cannot but have an adverse effect on the fairness of the proceedings. This does not mean, of course, that in every case of a significant or substantial breach of section 58 or the code of practice the evidence concerned will automatically be excluded.Section 78 does not so provide. The task of the court is not merely to consider whether there would be an adverse effect on the fairness of the proceedings, but such an adverse effect that justice requires the evidence to be excluded.”
 The ‘substantial breach’ theme was repeated in R v Keenan (referred to by the trial judge in paragraph 17 of his ruling). The case is also reported at (1990) Cr App R 1 and at page 11 of that report Hodgson J who delivered the judgment of the court said: –
“… where there have been substantial breaches of the “verballing” provisions, this Court has not been slow to hold that the trial judge was wrong to admit the interview evidence.”
 In the present case the judge considered that the breaches were inadvertent and were “not of the nature of the significant, substantial breaches that the court was referring to in R.-v-Keenan”. In the first place, for the reasons that we have given the judge should not have addressed the question whether the failure to comply with the Code was deliberate or unintended. This was a matter for the jury. But, in any event, it is not clear to us why he should have concluded that the breaches were any less significant. In Keenan the breaches were of a precisely similar character to those involved in the present case. Moreover, the officers who failed to comply with the Code claimed to have done so because they were unaware of its requirements – truly, a case of inadvertence, although, for the reasons that we have given, we do not consider that lack of deliberateness on the part of the defaulting officer is the issue.
 We likewise find ourselves unable to agree with the learned trial judge’s dismissive approach to the case ofScott (see paragraph 19 of his ruling). Again in that case the notebook containing the incriminating admission was not shown to the appellant. He was not invited to acknowledge its accuracy by his signature or to register his objection to its content. The breaches were described by the Court of Appeal as “serious and substantial … going to the very heart of the case”. We consider that this description perfectly fits the breaches in the present appeal.
 A further matter to which the judge has not alluded in his ruling is the fact that, although Constable McAllister interviewed Surgenor, at no point in the course of the interviews was it put to him that Ms Bothwell had said that they were asked to pick up two bags – despite his having consistently made the case that Ms Bothwell knew nothing about the hold-alls.
 We consider that the breaches of the Code were both serious and substantial. Moreover, we have concluded that the appellant was placed at a substantial disadvantage as a result of those breaches. Her legal representatives could not cross reference the timing of the alleged remark with notebook entries of other police officers to check whether they would have been present when the statement was alleged to have been made. She was not given a timeous opportunity to challenge the accuracy of the remark by having the notebook entry shown to her. She did not have the chance to deny having said it during her interviews when the entire course of her account was diametrically at odds with what Constable McAllister had claimed. She was therefore left on trial to dispute that she had made this critically damaging admission which went directly to the central issue of whether she knew that bags were to be handed over. It is beyond question that this necessarily belated challenge would have been less likely to find favour than one made immediately after the admission is alleged to have been made.
 We have decided that, faced with this array of factors, the judge ought to have concluded that the fairness of the proceedings would have been irredeemably affected by the admission of this evidence and that he should therefore have excluded it under article 76 of the 1989 Order.
 The case against the appellant did not depend exclusively on this item of evidence. She was quite unable to give a satisfactory account of how the hold-alls could have been placed in her car without her being aware of it and her description of the impromptu journey that she took with Surgenor has many implausible features. But we are satisfied that the alleged admission was of crucial importance to the prosecution case and, when it is removed from the evidence against the appellant, we find it impossible to say with the certainty required that her conviction is safe. It must therefore be quashed.
 Since the appellant has already served the sentence imposed on her following her conviction, we do not consider that it would be appropriate to order a re-trial.