The conviction for soliciting to commit murder was safe, the trial judge had correctly ruled the evidence of an undercover police officer was admissible and should not be excluded under s.78 Police and Criminal Evidence Act 1984.Appeal with leave of the single judge against conviction at Manchester Crown Court on 2 February 2001 for soliciting to commit murder. The defendant ('R') was sentenced by HH Judge Rhys Davies QC to six years' imprisonment. R divorced his wife in February 2000 and she remarried B in May 2000. R blamed B for his marriage breakdown and he contacted a number of private investigators to find someone who would assassinate B. He eventually met up with an investigator ('K') on 5 June 2000 and gave details of the school where they both worked and photographs of the couple. He told K that he wanted B killed outside London so he was not implicated and they discussed the price. K was a former policeman and informed the police. On 12 June R phoned K and confirmed he wanted B killed. On 14 June a serving police officer ('S') posed as a contract killer. K gave S's details to R and a meeting was arranged. S was fitted with a covert recording device. R said he wanted B killed and didn't want his body found so that he was not suspected. A second meeting was arranged which was also recorded and listened to whilst it occurred, R made it clear he wanted B killed. As R left he was arrested he gave three no comment interviews. At the trial he gave evidence that he didn't intend B to be killed and he had only gone along with S out of fear of him and his criminal associates. R sought to have the evidence of S excluded as he should have been cautioned after his conversation with K and before the first meeting with S. Failure to caution gave rise to breaches of Code C10.1 under Police and Criminal Evidence Act 1984. The judge rejected the submission on the basis that the codes of practice did not apply to the conversations and he declined to rule the contents inadmissible under s.78 Police and Criminal Evidence Act 1984. R appealed conviction on the ground that the evidence of S ought to have been excluded. In the first meeting R was being interviewed and should have been cautioned. The purpose of the second meeting was to get incriminating answers to questions. The prosecution contended that the codes of practice did not apply to the two meetings as the purpose of the meetings was not to question a suspect but to ascertain the true intentions of R and to create a situation where the police could control matters.HELD: (1) When assessing the applicability of the codes in relation to the conversations with S it was important to bear in mind the nature of the offence being investigated. The offence was capable of putting lives at risk and was committed in emotional circumstances. The judge had in mind balancing interests regarding the way the police should proceed. This was not a case where police officers were seeking, in order to circumvent the codes, conversations to get admissions. (2) On the facts of this case the judge had been right in concluding that the codes did not apply. There could be no criticism of the judge's alternative conclusion that even if there had been breaches the conversations ought to be admitted under s.78 Police and Criminal Evidence Act 1984.Appeal dismissed.

[2003] EWCA Crim 1955