Вы находитесь на странице: 1из 9

1 Q.B.

495

QUEEN'S BENCH DIVISION.

set aside t h e sentence imposed by the judge and substitute a


sentence t h a t t h e appellant be detained for life on t h e terms of
section 53 (2) of the Act of 1933.

C. C. A.
jg^
0.

Sentence
Solicitors: Registrar,
of Public
Prosecutions.

Court

varied accordingly.

of Criminal

Appeal;

ABBOTT.

Director

C A L L I S v. GUNN.

1963
Oct. 15.

CrimeEvidenceFingerprintsNo

canitionAdmissibility.

^J d p a rk ef
Ashwortb and

The defendant was taken to a police station and was there Hinchciiffe JJ.
charged with stealing 7, contrary to section 13 of the Larceny Act,
1916. While still in custody he declined to make any statement,
saying that he wished to have either his solicitor or an officer from
his unit present before he did so. He was then asked to give
his fingerprints. At no time was he cautioned that he might
refuse and that if he did give them they might be used in
evidence. He gave them without objection. At his trial the justices
refused to admit the fingerprint evidence, and because he could not
make out a prima facie case against the defendant without - the
fingerprint evidence, the prosecutor's request for an adjournment
was rejected. Accordingly the justices dismissed the charge.
On appeal by the prosecutor on the ground that the justices
ought to have admitted the evidence:
Held, that evidence of fingerprints, when relevant, was admissible subject only to the general principle that the court had an
overriding discretion to disallow evidence if its admission would
operate unfairly against a defendant; that that discretion should
be exercised if the evidence was obtained oppressively or by false
representations or a trick, threat or bribe; that, accordingly, a
caution was unnecessary before fingerprints were taken and, there
being here no misrepresentations by the police officer, there was
nothing which would justify the justices in excluding the evidence;
and that, therefore, the appeal must be allowed and the case
remitted to the justices.
Dicta of Lord Goddard C.J. in Kuruma v. The Queen [1955]
A.C. 197, 203; [1955] 2 W.L.R. 223; [1955] 1 All E.R. 236, P.C.
applied.
Dumbell v. Boberts (1944) 60 T.L.R. 231; [1944] 1 All E.R.
326, C.A. considered.
[Reported by TIMOTHY RYLAND, Esq., Barrister-at-Law.]

496

1963
CAIJJB

'

QUEEN'S BENCH DIVISION.

[1964]

CASE STATED by the Oxfordshire justices sitting at Bicester.


On November 23, 1962, a charge was preferred by the
prosecutor against the defendant that he on a date unknown
between July 20, 1962, and November 9, 1962, at Bicester, in the
county of Oxford, feloniously did steal 7, the property of the
Southern Gas Board, within the dwelling house of Eva Williams,
contrary to section 13 of the Larceny Act, 1916. The defendant pleaded " n o t guilty," and, with his consent, was tried
summarily.
The following facts were found by the justices. On November 9, 1962, one Winifred Calvert, a lodger at 11, Bardwell
Terrace, Bicester, discovered that the lock on the gas meter in
her sittingroom was broken. The meter was the sixpence or
shilling in the slot variety and she had placed money therein
during the previous week. On November 10, 1962, the gas meter
was examined by one Sidney James Harley, a meter reader for
the Southern Gas Board, and such inspection revealed that since
the meter was last inspected and emptied on July 20, 1962, 146
units of gas had been consumed; such consumption would have
cost 10 3s. When on November 9, 1962, Detective Constable
Power took possession of it the meter contained only 3 3s.
The defendant was friendly with Winifred Calvert's daughter,
habitually visiting the house up to October 29, 1962, on which
date he had slept at the house in the sittingroom, where the gas
meter was. When the defendant was arrested on November 22,
1962, and taken to the police station he declined to make any
statement, saying that he wished to have either a solicitor or an
officer from his unit present before he said anything. He had
insufficient money to pay a solicitor and was told that he could
ask for legal aid later. No attempt was made to contact an
officer from his unit because on previous occasions when that had
been done with other prisoners no officers had ever come to the
police station. No step was taken to get a solicitor either.
Detective Constable Power had not obtained an order from
the magistrates' court to have the defendant's fingerprints taken,
nor did he caution the defendant that he could refuse to have his
fingerprints taken and that his fingerprints might be used in
evidence if he did give them. Before taking the defendant's
fingerprint impressions Detective Constable Power said to the
defendant " I want to take your fingerprints. All right?" and
the defendant replied " Y e s . " Although Detective Constable
Power said that he asked the question in such a manner that a
reasonable man would have understood that he could object to

1 Q.B.

49

QUEEN'S BENCH DIVISION.

having his fingerprints taken, the justices found that not to


amount to a clear indication to the defendant that he had the
right to refuse. The defendant gave his fingerprints and raised
no objection thereto.
On November 23, 1962, Detective Constable Power took the
fingerprint impressions from the defendant upon a form and sent
the form to the Fingerprint Branch at New Scotland Yard. At
the time the fingerprint impressions were taken by Detective
Constable Power the defendant was in custody charged with this
offence.
I t was contended by the prosecutor's solicitor that the fingerprint impressions upon the form obtained from the defendant by
Detective Constable Power were admissible evidence in the case;
that there was no suggestion by the defendant at the time, or
in court, that he had objected to the way in which the fingerprints were taken; that it was not necessary to administer a
formal caution to the defendant that he need not give his fingerprints but that if he did they might be used in evidence, before
asking him if he would give his fingerprint impressions; and
that the defendant must have understood from Detective Constable Power's question that he need not give his fingerprint
impressions if he did not wish to do so.
It was contended by the defendant's solicitor that the evidence
relating to the fingerprint impressions was inadmissible; that
before fingerprint impressions were taken with a view to being
used in evidence if necessary, persons in custody must be formally cautioned that they were not obliged to have their fingerprints taken; that it was a fundamental principle of law that no
man was obliged to convict himself; and that fingerprint impressions taken as in this case were just as much inadmissible as a
statement taken without caution.
The justices were of opinion that the evidence relating to
the taking of the fingerprint impressions from the defendant was
not admissible on the grounds that the defendant ought to have
been cautioned that he need not give his fingerprints unless he
wished to do so and that they could be used in evidence if
he did give them. Accordingly they ruled that the evidence of
Detective Constable Power, in so far as it related to the obtaining
of the defendant's fingerprint impressions, was inadmissible as
a matter of law. The prosecutor's solicitor then applied for an
adjournment of the case and the defendant's solicitor objected;
the justices refused to grant such adjournment. The prosecutor's

1963
CALUS

'

498

QUEEN'S BENCH DIVISION.


1963

CALLIS

>
'

[1964]

solicitor then indicated that in the absence of the evidence they


i excluded he would not be able to raise a prima facie case
against the defendant and therefore would not waste time by
offering any further evidence. Accordingly, the justices ordered
that the case against the defendant be dismissed.
The prosecutor appealed and the questions for the opinion of
the High Court were: (i) whether the evidence of Detective Constable Power relating to his obtaining the defendant's fingerprint
impressions was admissible despite the absence of formal words
of caution, the defendant having without objection given his
fingerprint impressions; (ii) whether the justices had a discretion
to admit such evidence or not; and (iii) if the justices had such
a discretion, whether such evidence should have been admitted.

na<

John Archer for the prosecutor. The first question is whether


the evidence was admissible. If it was relevant, it was admissible.
Any alleged unfairness in obtaining evidence of this nature goes
to its weight and to a possible exercise of a discretion to exclude
it, not to its admissibility. If the defendant freely consented,
not only was the evidence clearly admissible but it ought to
have been admitted. If there had been unfairness so as to
vitiate the consent, that unfairness would give the court a discretion to exclude evidence otherwise relevant and admissible.
If there was no real consent the taking of fingerprints might be
an assault, as when a doctor examines someone without his consent: Reg. v. Payne l and Dumbell v. Roberts* per Scott L.J.
The overriding discretion of the court is to exclude evidence,
admission of which would be unfair to the defendant. If evidence
has been unfairly obtained, and especially if the probative value of
it is small, that discretion may properly be exercised so as to
exclude it. But here the evidence was not obtained unfairly, as
in answer to an inducement, so the consent was freely given.
Although the rule as to statements made by an accused person
is very strict, even a statement obtained in these circumstances
would be admissible: Reg. v. Joyce.3 This evidence is relevant
and therefore admissible; there was no unfairness even so as to
give the court a discretion, and it ought to have been admitted:
Kuruma v. The Queen.* The argument that the consent was not
1
[1963] .1 W . L . B . 637; [1963]
1 All B.B. 848, C C A .
= (1944) 60 T.L.B. 231; [1944] 1
All E . B . 326, C.A.

[1958] 1 W.L.R. 140; [1957] 3


All E . B . 623.
* [1955] A . C 197; [1955] 2
W.D.B. 233; [1955] 1 All E.R. 236,
P.C.

1 Q.B.

free in similar circumstances was rejected by Avory J. in Bex v.


Berg, Britt, Carre and Lummies.'
In Scotland there is no
necessity for a caution to be given before the taking of
fingerprints: Adair v. M'Garry.*
Peter Bruce for the defendant. The justices must decide
whether fingerprint impressions should be taken. Section 40 of
the Criminal Justice Act, 1948, and of the Magistrates' Court
Act, 1952, provide for the taking of fingerprints, and if they are
taken otherwise than is thus provided for, these statutory provisions are superfluous. Similar considerations would apply in
the case of the statutory provisions rendering the destruction of
the impressions necessary in the event of acquittal. In this
case the consent was not free. If a person may object to being
medically examined, so he should be able to object to fingerprints
being taken: Reg. v. Payne.7 The alleged consent is vitiated by
the surrounding circumstances, and has been excluded in like
circumstances: Beg. v. Urech.B Under the Judges Eules justices
may exclude evidence that in law is admissible, and they would
do so if it was obtained by force. The rule of the law of evidence
that a person is not obliged to answer an incriminating question
is not binding on a judge merely in his discretion; such evidence
is absolutely inadmissible, even if it is relevant. The cases
dealing with statements are not analogous. Scots law is different
in very important aspects, and so the majority decision in Adair
v. M'Garry 9 should not be applied to England.
LORD PARKER C.J. This is an appeal by way of case stated
from a decision of Oxfordshire justices sitting at Bicester, who
dismissed an information preferred by the prosecutor against the
defendant " that he on a date unknown between July 20, 1962,
" and November 9, 1962, at Bicester, in the County of Oxford,
" feloniously did steal the sum of 7, the property of the Southern
" G a s Board, within the dwelling-house of Eva Williams."
The short facts were that a Mrs. Calvert was a lodger at 11,
Bardwell Terrace, at Bicester. On November 9 she discovered
that the lock on the gas meter in her sittingroom was broken.
The gas meter was examined by a representative of the Southern
Gas Board, and his inspection revealed that having regard to the
5
6
7

QUEEN'S BENCH DIVISION.

(1927) 20 Cr.App.R. 38, C C A .


.1933 S.L.T. 482.
[1963] 1 W.L.E. 637.

[1962] C.L.Y. para. 587.


9 1933 S.L.T. 482.

1963
CALLIS

*>
'

"

500

QUEEN'S BENCH DIVISION.


1963

CALUS

.
*""*
Lc
"'cj" l i e r

[1964]

amount of gas consumed there should be 10 3s. in the gas meter;


m

^ac* ^ e r e

was

3 3s., 7 short.

The defendant was friendly with Mrs. Calvert's daughter;


he habitually visited the house, and on October 29, in fact, slept
' n ^ e h u s e m the sittingroom, where the gas meter was. In due
course the defendant was arrested and taken to the police station.
He declined to make any statement, saying that he wished to
have either a solicitor or an officer from his unit present before
he said anything. In fact no steps were taken to get a solicitor
or officer to come to the police station. Detective Constable
Power, while the defendant was in custody, said to him, " I
" want to take your fingerprints. All right? " and the defendant
replied: " Y e s . " In evidence Detective Constable Power said
that he had asked that question in such a manner that any
reasonable person would understand that he could object to having
his fingerprints taken. The justices, however, found that these
words did not amount to a clear indication to the defendant that
he had the right to refuse. In fact he gave his fingerprints and
raised no objection thereto.
The argument before the justices was that the evidence of the
fingerprints was in law inadmissible because no caution had been
given; nothing had been said to the effect that " you have a
" right to refuse to have your fingerprints taken and if they are
" taken they may be used in evidence " ; nothing of that was said.
The justices appeared to have acceded to that argument.
[His Lordship read the opinion of the justices and the questions
for the court as set out above and continued: ] I think the most
convenient course is to state what I understand to be the law in
regard to these matters before coming to the facts of this case.
I take the general law to be as stated by Lord Goddard C.J. in
Kuruma v. The Queen.1 The facts of that case matter little
save to say that a search was made and property seized which
the officers concerned had no power to do. The question was
whether the results of their search and seizure could be given
in evidence. Lord Goddard C.J., giving the opinion of the
Board, said 2 : " I n their Lordships' opinion the test to be applied
" in considering whether evidence is admissible is whether it is
" relevant to the matters in issue. If it is, it is admissible and
" the court is not concerned with how the evidence was obtained.
" While this proposition may not have been stated in so many
1

[1955] A.C. 197; [1955] 2


W.L.B. 233; [1955] 1 All B.B. 236,
P.C.

* [1955] A.C. 197, 203.

1 Q.B.

QUEEN'S BENCH DIVISION.

'' words in any English case there are decisions which support
1963
" it, and in their Lordships' opinion it is plainly right in
CALLIS
" principle."
"
That is dealing with admissibility in law, and as Lord Goddard
'
C.J. points out, and indeed as is well known, in every criminal Lord^Parker
case a judge has a discretion to disallow evidence, even if in
law relevant and therefore admissible, if admissibility would
operate unfairly against a defendant. I would add that in considering whether admissibility would operate unfairly against a
defendant one would certainly consider whether it had been
obtained in an oppressive manner by force or against the wishes
of an accused person. That is the general principle.
When, however, one comes to the admissibility of statements
made in answer to the police and to alleged confessions, a much
stricter rule applies. There is a fundamental principle of law that
no answer to a question and no statement is admissible unless it
is shown by the prosecution not to have been obtained in an
oppressive manner and to have been voluntary in the sense that
it has not been obtained by threats or inducements.
To that principle governing answers to questions and statements made by an accused must be added the Judges' Eules,
which are rules of practice indicating what the judges will exclude
within the meaning of oppressive conduct or as not being voluntary statements. That admissibility in regard to such answers
and statements is dealt with, as it were, in a watertight compartment is again made clear by Lord Goddard C.J. in Kuruma's
case, 3 where he says*: " It is right, however, that it should be
" stated that the rule with regard to the admission of confessions,
" whether it be regarded as an exception to the general rule or
" not, is a rule of law which their Lordships are not qualifying in
" any degree whatsoever. The rule is that a confession can only
" be admitted if it is voluntary, and therefore one obtained by
" threats or promises held out by a person in authority is not to
" be admitted."
Having said that, it is quite clear that this present case is not
concerned in any way with answers to the police or statements
made by a defendant. That being so, the Judges' Eules in regard
to the giving of a caution do not apply at all. As a matter of law
the evidence of fingerprints, if relevant, and it clearly was
relevant here, is admissible subject to the overriding discretion of
the court.
3

[1955] A.C. 197.

* Ibid. 205.

502

[1964]

QUEEN'S BENCH DIVISION.


1963

CALLIB

GUNN

'
Lord

c^

Great reliance has been placed on a dicta of Scott L.J. in


Dumbcll v. Roberts.5 That was a case of trespass to the person
and false imprisonment. Scott L.J. adverted to the practice in

arker

regard to the taking of fingerprints. He said : "There is a


" minor matter which I think calls for comment. There is, I
" believe, no statutory sanction for the practice disclosed in the
" evidence in the present case of the police taking fingerprints of
" a person under a charge before he is convicted or even com" mitted for trial. Such treatment is inconsistent with our
" British presumption of innocence until proof of guilt; and it is
" natural for it to be regarded as a slur on a man's character.
" Without free consent it involves trespass to the person."
I t is to be observed in the first place that none of the other
Lords Justices, Goddard L.J. or Luxmoore L.J., referred to that
matter at all. For my part I cannot read that as an authority
for saying that the fingerprint evidence should be excluded unless
what Scott L.J. calls " free consent " is proved if that involves
the giving of a caution.
In my judgment fingerprint evidence taken in these circumstances is admissible in law subject to this overriding discretion.
That discretion, as I understand it, would certainly be exercised by
excluding the evidence if there was any suggestion of it having
been obtained oppressively, by false representations, by a trick,
by threats, by bribes, anything of that sort. But in the present
case it is to be observed that whatever the defendant knew about
the law and his rights, the police never misrepresented it to him.
True, they did not give any caution. As I have said, it was quite
unnecessary to give any caution. There is no suggestion here
that they conveyed to him that he had to accede to the request.
If that had been done there might be a clear case for excluding the
evidence, but what the justices say is not that the police represented that he had to accede, but that they did not make it
sufficiently clear that he had any right to refuse.
In my judgment the justices approached this matter in the
wrong way; the case should go back to them with a direction that
the evidence was in law admissible subject to the exercise of their
discretion, and secondly, that, on the facts found, this court is of
opinion that there was nothing which would justify the exercise
of a discretion in favour of excluding this evidence. I should add
5 (1944) 60 T.L.E. 231; [1944] 1
All E . E . 326, C.A.

[1944] 1 All E.R. 326, 330.

1 Q.B.

QUEEN'S BENCH DIVISION.

503

t h a t I am more happy to come to this conclusion having regard


to w h a t is t h e position in Scotland: see Adair v. M'Garry.7
A

ASHWORTH J .

HINCHCLIFFB J .

1963
CALLIS
v.
GDNN.

I agree.

I also agree.
Appeal

Solicitors: Cole & Cole, Oxford; Darby & Son,

allowed.
Oxford.

i 1933 S.L.T. 482.

GOEDON v. CEADOCK.
[1962 G. No. 1362.]

C. A.
M

5,

Court of AppealLeave to appealConditional leave to defend action Upjohn L.JJ.


Order refusing defendant unconditional leave to defendWhether
plaintiff requires leave to appealWhether interlocutory appeal
Supreme Court of Judicature (Consolidation) Act, 1925 (15 & 16
Geo. 5, c. 49), s. 31 (1), (2).
The defendant to an action commenced by a specially indorsed writ
for the return of money alleged to have been a loan was given leave to
defend by the master, on the terms that the whole of the amount
claimed be brought into court. The defendant appealed from that
order to the judge in chambers asking for unconditional leave to
defend. The judge varied the master's order and reduced the amount
required to be brought into court as a condition of leave to defend
being granted, leave to appeal to the plaintiff being refused. On
the question whether, under section 31 subsections (1) (i) and (2)
of the Supreme Court of Judicature (Consolidation) Act, 1925,* the
plaintiff required leave to appeal:
Held, that, on the true construction of section 31 (2) of the Act
of 1925, no leave was required by either party to appeal against an
order refusing unconditional leave to defend and that, accordingly,
[Reported by M. MOODLEY, Esq., Barrister-at-Law.]
1

Supreme Court of Judicature


(Consolidation) Act, 1925: " S. 31.
" Eestrictions on appeals.(1) No
" appeal Bhall lie ...(c)
from an
" order of a judge giving uncondi'' tional leave to defend an action; . . .
" (i) without the leave of the judge
"or of the Court of Appeal from any

" interlocutory order or interlocutory


" judgment made or given by a judge
" . . . (2) An order refusing uncon" ditional leave Jo defend an action
" shall not be deemed to be an inter" locutory order within the meaning
"of this section."

Вам также может понравиться