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495
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
'
[1964]
1 Q.B.
49
1963
CALUS
'
498
CALLIS
>
'
[1964]
na<
1 Q.B.
1963
CALLIS
*>
'
"
500
CALUS
.
*""*
Lc
"'cj" l i e r
[1964]
^ac* ^ e r e
was
3 3s., 7 short.
1 Q.B.
'' 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
* Ibid. 205.
502
[1964]
CALLIB
GUNN
'
Lord
c^
arker
1 Q.B.
503
ASHWORTH J .
HINCHCLIFFB J .
1963
CALLIS
v.
GDNN.
I agree.
I also agree.
Appeal
allowed.
Oxford.
GOEDON v. CEADOCK.
[1962 G. No. 1362.]
C. A.
M
5,