R V Barry White

It is clear to see in the case of Barry White v The Crown that there are several issues arising on the facts. These issues shall now be argued under various grounds of appeal below. Ground 1- Failure to dismiss evidence that has been obtained unlawfully In regards to the evidence within the case in which great weight was held when Barry was charged, it can be seen that both pieces of evidence (the radio and the confession) have been obtained unlawfully and thus forth should be dismissed from the trial. Firstly is the issue of the radio which proved to be a conclusive piece of evidence upon which the jury ascribed great weight leading to them to be persuaded that the crowns case was proven beyond reasonable doubt, yet it was improperly obtained. Barry, although at the time of his arrest did not know what he was being arrested for, was ultimately charged with murder by the crown court, which is an arrestable offence by virtue of the fact that Barry could be sentenced to a term of imprisonment upon conviction.

[1] Section 18 of the Police and Criminal Evidence Act (PACE)[2], empowers an officer to enter premises ‘occupied or controlled by a person arrested for an arrestable offence’

[3] to search for evidence related to that offence or connected offences, therefore this section would have been used when the police carried out the search throughout Barry’s home on the 6th of May. What is interesting however is that the officer must have ‘reasonable grounds’ for believing that there is evidence on the premises that relates to the offence in question or to some offence ‘which is connected with or similar to that offence’. If Barry was charged with theft then searching his house for the stolen radio would be within the sections ambit.

However given the fact that Barry was ultimately charged with murder it seems unlikely that the radio which was seized would have a connection to the murder apart from the fact that they were stolen from the victim’s car; as to whether it would hold particular weight in a murder charge is somewhat questionable. In addition to this the section also states that any officer making such a search must have prior authorisation in writing from a fellow officer of at least the rank of inspector, or subsequent approval, if such is necessary for the effective investigation of the ‘offence’. From the facts it is clear to see that when the police arrived at Barry’s house and carried out their search that a warrant for the search was not present and was not shown to Barry, therefore the evidence obtained from the search should be inadmissible as the police didn’t have a valid warrant to search the premises under section 18 of PACE.

[4] Moreover it is a requirement of the revised Code B

[5] that when conducting a search, the police shall give the occupier a written notice of powers and rights showing which powers have been exercised. This is applicable to searches made under several powers, including those under ss18 and 32. The notice must specify under which power the search is being made and must also explain the rights of the occupier and the owner of any property being seized. The codes of practice are not technically ‘law’ however if Barry can show that evidence (that is relating to the radio) has been obtained in breach of the Code, then the trial judge or Appeal Court can be invited to exclude that evidence (s76(11)). In sum, Barry might be able to show that any evidence obtained relating to the radio and DVD’s should be excluded by s78[6]. The search might not be lawful under s18

[7] if: ‘the search was not properly authorised in writing by an inspector’ which in the case of Barry has been shown to be the case as no warrant was shown to him. In addition to the admissibility of the radio as evidence it is also important to look at the lawfulness of Barry’s confession as well. A confession is defined in s.82(1)

[8] of PACE as a statement ‘wholly or partly adverse to the party who made it’[9]. Barry, within these terms, appears to have made a confession. The admissibility of a confession is governed by several sections of PACE and so it is necessary to look at these in detail to analyse whether or not the confession made by Barry was indeed unlawfully obtained and thus forth inadmissible in a court of law. S.76(2) states that in relation to confessions which have allegedly resulted from ‘oppression’ or in consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession made, ‘the court shall not admit the evidence unless the prosecution proves that the confession was not obtained in such a manner’[10]. One way in which the confession from Barry could be considered as unreliable is by looking at section 78 of PACE, which allows a court to refuse to admit evidence if it appears, having regard to all the circumstances in which the evidence was obtained, that ‘admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it’[11]. An example of this in relation to Barry is the failure to properly record an interview, this is evidenced by the fact that the officers who conducted the interview failed to freshly caution Barry upon the start of the interview which under PACE Code C renders the interview inadmissible as this is a key requirement when conducting an interview. Furthermore there is also the issue of Barry’s right to a legal advisor, although he requested his own solicitor and could not make contact with them the police failed to wait to try again and also failed to offer Barry a different solicitor thus letting him conduct the interview by himself.

The importance of having a solicitor present during an interview under s. 58 PACE[12] has been demonstrated in a number of cases such as R v Samuel[13] and R v Walsh[14] therefore it must be considered as an important factor of a confession that legal advice be accessible and the fact that the court failed to see this when charging Barry is exactly the reason why the case should be either sent to a re-trial or dismissed entirely. Moreover in the case of Sang[15] at the House of Lords, which permitted the exclusion of evidence where its prejudicial effect outweighs its probative value, Lord Diplock thought that a discretion only existed at common law with regard to admissions and confessions and ‘generally with regard to evidence obtained from accused after commission of the offence’. One observation of Lord Diplock’s which could be helpful to Barry (although obiter dicta) is that the purpose of such judicial discretion is to ensure that an accused was not induced to incriminate himself by deception. This would apply to Barry in the sense that the police asked questions about whether he thought Stuart would use the crowbar to cause harm, in which he didn’t answer yet the courts took this as a confession of consent to Stuart inflicting the blows which caused the victims death.

This can be seen as an example of the unfairness section of PACE which can exclude a confession from being admissible evidence and given that the confession held great weight in the jury’s decision of a guilty charge towards Barry it is crucial that this needs to be addressed and looked into further as this could change the nature of the charge and the case as a whole. Ground 2- failure to safeguard the right to representation on interrogation Another breach which the court should have taken into account when arresting Barry was his right to legal representation during his interview. The access to a lawyer a suspect has is governed by section 58(1) of PACE[16], and states that a ‘person arrested and held in custody in a police station shall be entitled, if he so requests, to consult a solicitor at any time’[17]. In addition to this the request must also be recorded in the custody record and the request must be granted as soon as possible except to the extent that the delay is permitted by the section. In terms of Barry it seems that there has been a breach of Code C (in respect of the notification of free legal advice), given that although Barry requested his own solicitor when this failed the police failed to offer him one from the police station and instead proceeded to let him conduct the interview without legal aid. This is evidenced by Barry repeatedly requesting his solicitor and when the police gave up attempting to contact them Barry stated that he would proceed with the interview ‘notwithstanding he did not have his legal representative’ showing that he was hesitant to proceed without legal aid and the police failed to offer him an alternative. Therefore it would be possible that if the case went to appeal then the court would quash not only his confession which was produced as a result of the interview but possibly the entire case as he was deprived of his fundamental right to a legal representative as a result of the breach and the police’s impatience in contacting his own solicitor when they had ample time to do so as he had only been detained less than 24 hours. A case which supports this argument comes from Beycan[18], in which the Court of Appeal quashed a conviction based on a confession when the suspect had been arrested, taken to the station and asked: ‘are you happy to be interviewed in the normal way we conduct these interviews without a solicitor, friend or representative?’[19]. Although the police didn’t breach the code that explicitly, Barry’s case is arguably stronger as he actually expressed a desire for legal advice and when it couldn’t be provided he reluctantly proceeded to conduct the interview. It may be possible to construe the events from the case of Barry in a way which shows him ‘changing his mind’ about taking legal advice.

Thus there could be a further breach of Code C para 6 6(d) : ‘when the person who wanted legal advice changes his mind, the interview may be started without further delay provided the person has given his agreement in writing or on tape to being interviewed without receiving legal advice and that an officer of the rank of inspector or above has given agreement.’[20] It is not stated within the facts of the case whether or not this procedure was followed however given the fact that Barry was not properly cautioned when the interview was conducted and the fact that his custodial process wasn’t performed properly in the sense that he wasn’t booked in correctly because he was taken straight to an interview, it is unlikely that the procedure was in fact followed. The breach of this code and its implications upon trials was demonstrated in the case of Wadman[21], in which the defendant, having initially declined legal advice, changed his mind and then, while arrangements were being made, reverted to saying that he did not wish to have a solicitor. The judge in the case held that the code was not ‘mandatory’ and admitted the evidence. However on appeal the conviction was quashed and the court ruled that the judges approach to the code was flawed as he ‘confused the discretion he had on voir doire- whether to admit the evidence- with the absence of discretion for police officers when complying with the code; it was a disciplinary offence not to do so, it was not a case where the court should exercise its own discretion’.[22] This further strengthens the argument that the court should not have ignored the fact that Barry didn’t have a legal representative with him whilst recording his interview and the fact that the police breached Code C by not following the correct procedure and therefore the submitting the interview as evidence was unlawful. Ground 3- failure to direct the jury properly on convicting on the basis of joint criminal enterprise Barry was sentenced for murder on the principle that he committed the act of crime on the basis of a joint criminal enterprise, there are numerous reasons as to why this was the wrong decision by the court but first we shall analyse what it means to be part of a joint criminal enterprise. A joint criminal enterprise is defined as where an ‘offence is committed by two or more persons, of which each may play a different part, but they are acting together as part of a joint plan’[23]. The important part of this definition which is relevant to Barry’s charge is the word ‘plan’, the courts have noted that the word doesn’t mean that there has to be a formal agreement about what has to be done but instead it can happen in the spur of the moment and can be made with something as simple as a nod or wink to the other party. In order for the prosecution to prove the secondary liability of a person they must establish that the conduct by the defendant amounts to assistance or the encouragement of the joint person, the intention to assist or encourage the joint offender to commit the principal offence and the defendants knowledge of the essential matters which constitute the principle offence. Therefore in order to charge Barry on the ground of joint criminal enterprise it must be proven that the above three requirements have been satisfied, however in actual fact when looking at the case it is clear to see that they haven’t been satisfied, which I will now further explain below. Firstly is the requirement of knowledge of intention from the joint offender, in this case Stuart, from the defendant, in this case Barry. If it could be proven that Barry had reasonable knowledge that Stuart would use the crowbar to inflict the blows to the victim which lead to his death then that would be sufficient enough for the court to charge Barry with murder based on a joint criminal enterprise. However it seems that the court failed to analyse Barry’s interview properly as within it he was asked whether or not he knew that Stuart was carrying the crowbar which he stated that he did know he was carrying the weapon because it was a useful tool for breaking into cars, however what is interesting is that when he was asked whether he thought that Stuart might use violence on another human being he remained silent.

Yet the court looked at this as an acknowledgement of Stuart’s intention which is arguably wrong on a number of basis. For example in Powell and English[24] Lord Hutton[25] said that where the act committed by P (Stuart) is fundamentally different from that contemplated by D (Barry), D will not be liable. In relation to the case at hand it could be argued that although Barry knew that Stuart was carrying the crowbar that he only foresaw him using it as a tool for breaking into cars as it is what the pair have used in the past, not that he would have expected Stuart to use the tool as a harmful weapon towards the victim as Barry only intended to steal the car as is evident from the fact that when he received the keys to the car he immediately went and sat in the driver’s seat. It was in fact Stuart who then proceeded to commit the act of violence, therefore how can it be argued by the court that Barry consented to the murder when he was merely sat in the car waiting to drive away? Given that this requirement hasn’t been met and the fact that Barry did not comment on whether he thought Stuart would cause harm to the victim the conviction should be quashed and the trial should be appealed in light of the ground being breached. In conclusion it is clear to see that Barry, although admittedly committing a crime of theft, was wrongly charged on the grounds of murder due to a number of grounds and procedural breaches which the Crown Court failed to take into consideration such as the wrongful processing of Barry when he arrived at the station, the lack of a fresh caution when conducting his interview, the lack of legal representation during his interview and the two pieces of evidence (the confession and the radio) which held great weight in the charge were unlawfully obtained and therefore should not have been submitted before the court or relied upon. With this said I think it is fair to say that the charges should be quashed and that a new trial take place with the above mentioned grounds and breaches taken into consideration in order to provide a conviction that can be seen as an acceptable one in the eyes of law. Bibliography Statues and statutory instruments Police and Criminal Evidence Act 1984 (PACE) Cases Powell and English [1999] AC 1 R v Beycan [1990] R v Samuel [1988] QB 615 R v Sang [1980] 2 AC 402 HL R v Walsh (1990) 91 Cr App R 161 Wadman 1996 Websites Judicial Board Studies, ‘Directing The Jury’ (judiciary.gov.uk 2010) <https://www.judiciary.gov.uk/wp-content/uploads/JCO/Documents/Training/benchbook_criminal_2010.pdf> accessed 11/02/2015 Books and journals M Hannibal and L Mountford, Criminal Litigation Handbook 2013-2014 (8th, OUP, Oxford 2013) A Keane and P McKeown, The modern law of evidence (9th, OUP, Oxford 2012) G Slapper and D Kelly, English legal system 2013-2014, (10th, Routledge, London 2013) J F Archibold, Archbold: criminal pleading, evidence and practice 2014, (Sweet & Maxwell London 2014)

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[1] Police and Criminal Evidence Act 1984 (PACE) s.24

[3] Police and Criminal Evidence Act 1984 (PACE) s.18

[3] Police and Criminal Evidence Act 1984 (PACE) s.18

[8] Police and Criminal Evidence Act 1984 (PACE)

[5] Police and Criminal Evidence Act 1984 (PACE) Code B

[8] Police and Criminal Evidence Act 1984 (PACE)

[8] Police and Criminal Evidence Act 1984 (PACE)

[8] Police and Criminal Evidence Act 1984 (PACE)

[9] M Hannibal and L Mountford, Criminal Litigation Handbook 2013-2014 (8th, OUP, Oxford 2013) 92 [10]M Hannibal and L Mountford, Criminal Litigation Handbook 2013-2014 (8th, OUP, Oxford 2013) 94 [11] M Hannibal and L Mountford, Criminal Litigation Handbook 2013-2014 (8th, OUP, Oxford 2013) 96 [12] Police and Criminal Evidence Act 1984 (PACE) s. 58 [13] R v Samuel [1988] QB 615 [14] R v Walsh (1990) 91 Cr App R 161 [15] R v Sang [1980] 2 AC 402 HL [16] Police and Criminal Evidence Act 1984 (PACE) s. 58(1) [17] Police and Criminal Evidence Act 1984 (PACE) s. 58(1) [18]R v Beycan [1990] [19] R v Beycan [1990] [20] Police and Criminal Evidence Act 1984 (PACE) Code C para 6 6(d) [21] Wadman 1996 [22] Wadman 1996 [23] Judicial Board Studies, ‘Directing The Jury’ (judiciary.gov.uk 2010) https://www.judiciary.gov.uk/wp-content/uploads/JCO/Documents/Training/benchbook_criminal_2010.pdf accessed 11/02/2015 [24] Powell and English [1999] AC 1 [25] Lord Hutton page 21

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