(back to preceding text)

    45.  On 26 June 2000 the defendant had an "off the record" interview with police officers who were involved in a separate murder enquiry. The reason for the confidential interview was that the defendant said that he was in fear of a notorious criminal called Sullivan. The police agreed not to question the defendant about the burglaries. He was not cautioned. There was no tape recording. The police prepared a report of the interview. In the context of the murder enquiry, the defendant said that Sullivan only told him about the murder in late February or early March 2000. When made the report of the confidential interview contained nothing adverse to the defendant's interest in respect of the second burglary. It was either entirely exculpatory or entirely neutral in effect.

    46.  Eventually there were important differences between what the defendant had said during this confidential interview and what he was to say at his trial. In the confidential interview the defendant did not say that he had taken part in the second burglary because of threats made by Sullivan against himself and his family. In accordance with the police report of the confidential interview the threats had not been made until late February or early March 2000, that is after the second burglary.

IV. The Ruling on the Confidential Statement at Trial

    47.  At the criminal trial the prosecution relied on the confidential statement for two purposes. First to assert that the defendant was a dishonest witness and secondly as evidence of the statement's truth, namely an admission that the defendant had not become aware of Sullivan's claims that he had killed somebody until after the second burglary. The questions arose whether the confidential statement was a confession under section 76 of PACE or ought to be excluded under section 78. Faced with section 76, read with section 82(1), and the decision of the Court of Appeal in R v Sat-Bhambra (1989) 88 Cr App R 55, counsel for the defendant conceded at trial that an exculpatory or neutral statement was not a confession within the meaning of section 76 and that accordingly it could not be excluded under that particular statutory provision. The judge acted on this basis. Counsel for the defendant did, however, invite the judge to exclude the statement under section 78 on the basis that the admission of it would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it. Taking into account that at the time of the trial Sullivan was in prison and could no longer be a danger to the defendant, the judge ruled that section 78 did not prevent the Crown from cross-examining the defendant on differences between the confidential statement and his account at trial. The prosecutor apparently did so with some effect.

    48.  The jury had before it the evidence of the victims of the second burglary as well as the account of the defendant, viewed against the impact of the confidential statement on which the prosecutor cross-examined. The jury convicted the defendant of the second burglary.

V. The Decision of the Court of Appeal on the Confidential Statement

    49.  On appeal the Court of Appeal upheld the judge's decision under section 78. There is no appeal on that aspect of the case. The Court of Appeal concluded however that the confidential statement was a confession: R v Z [2003] 1 WLR 1489. The Court of Appeal based this conclusion on the impact of section 3 of the Human Rights Act 1998, and the effect of Saunders v UK (1997) 23 EHRR 313, para 71.

    50.  The relevant point of law of general public importance certified by the Court of Appeal reads as follows:

"Whether a 'confession' in section 76 of the Police and Criminal Evidence Act 1984 includes a statement intended by the maker to be exculpatory or neutral and which appears to be so on its face, but which becomes damaging to him at the trial because, for example, its contents can then be shown to be evasive or false or inconsistent with the maker's evidence on oath."

VII. The Provisions of PACE

    51.  It is necessary to set out the relevant provisions of PACE. So far as it is material section 76 provides as follows:

"(1)  In any proceedings a confession made by an accused person may be given in evidence against him in so far as it is relevant to any matter in issue in the proceedings and is not excluded by the court in pursuance of this section.

(2)  If, in any proceedings where the prosecution proposes to give in evidence a confession made by an accused person, it is represented to the court that the confession was or may have been obtained -

(a) by oppression of the person who made it; or

(b) in consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in consequence thereof,

the court shall not allow the confession to be given in evidence against him except in so far as the prosecution proves to the court beyond reasonable doubt that the confession (notwithstanding that it may be true) was not obtained as aforesaid.

(3) In any proceedings where the prosecution proposes to give in evidence a confession made by an accused person, the court may of its own motion require the prosecution, as a condition of allowing it to do so, to prove that the confession was not obtained as mentioned in subsection (2) above.

(Emphasis supplied)

Section 82(1), an interpretative provision of PACE, provides in respect of section 76 that:

". . . 'confession' includes any statement wholly or partly adverse to the person who made it, whether made to a person in authority or not and whether made in words or otherwise;"

A partly adverse statement is commonly described as a "mixed statement". In R v Sharp [1988] 1 WLR 7 the House of Lords held that such a statement is evidence of the self-serving as well as the incriminating parts.

    52.  It is necessary to read section 76(1), as interpreted in accordance with section 82(1), together with section 78 which provides for the exclusion of unfair evidence. Section 78, so far as it is material, provides:

"(1)  In any 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 evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.

(2)  Nothing in this section shall prejudice any rule of law requiring a court to exclude evidence."

Subject to the discretion of a trial judge under the common law to exclude evidence where its likely prejudicial effect outweighs its probative value (see section 82(3); R v Sang [1980] AC 402) the provisions of section 76, read with section 82(1), and section 78, constitute a part codification of the law governing criminal evidence.

    53.  Four preliminary observations about the framework of these provisions of PACE must now be noted. First, section 76 owes its origin to the Eleventh Report of the Criminal Law Revision Committee (Cmnd 4991 (1972)). The Committee had concluded that reliability was the most appropriate basis for determining the admissibility of confessions but considered that the use of oppression should also result in exclusion. That is the rule which is contained in the two parts of section 76(2) of PACE. The rationale of the two-pronged rule in section 76(2) was explained in Lam Chi-ming v The Queen [1991] 2 AC 212 by Lord Griffiths as follows [220E-F]:

"Their Lordships are of the view that the more recent English cases established that the rejection of an improperly obtained confession is not dependent only upon possible unreliability but also upon the principle that a man cannot be compelled to incriminate himself and upon the importance that attaches in a civilised society to proper behaviour by the police towards those in their custody."

Secondly, it is necessary to consider the meaning of "oppression" in section 76(2)(a). Section 76(8) provides non-exhaustively that "'oppression' includes torture, inhuman or degrading treatment, and the use or threat of violence (whether or not amounting to torture)". In R v Fulling [1987] QB 426 Lord Lane CJ, giving the judgment of the Court of Appeal, concluded that:

"'oppression' in section 76(2)(a) should be given its ordinary dictionary meaning. The Oxford English Dictionary as its third definition of the word runs as follows: 'Exercise of authority or power in a burdensome, harsh, or wrongful manner; unjust or cruel treatment of subjects, inferiors, etc.; the imposition of unreasonable or unjust burdens.' One of the quotations given under that paragraph runs as follows: 'There is not a word in our language which expresses more detestable wickedness than oppression.'

We find it hard to envisage any circumstances in which such oppression would not entail some impropriety on the part of the interrogator."

Thirdly, the width of section 78(1) is of critical importance. Although it is formally cast in the form of a discretion ("the court may") the objective criterion whether "the evidence would have such an adverse effect on the fairness of the proceedings" in truth imports a judgment whether in the light of the statutory criterion of fairness the court ought to admit the evidence. Fourthly, any evidence obtained by the police by oppression is liable to be excluded under section 78. It would cover the case where the police by oppression obtained a wholly exculpatory but plainly false statement from an accused such as to damage his credibility at trial. That would be unfair under section 78. It is therefore clear that section 76, as read with section 82(1), and section 78, are designed to provide in a coherent and comprehensive way for the just disposal of all decisions about statements made by accused persons to the police. There is no gap in the procedural safeguards of the relevant provisions of PACE.

IX. The Decisions in Sat-Bhambra (1988) and Park (1993)

    54.  In two decisions the question whether a wholly exculpatory or neutral statement can be a confession was considered by the Court of Appeal (Criminal Division). In Sat-Bhambra (1989) 88 Cr. App R 55 Lord Lane CJ observed (at 61):

"First, were the answers given by the appellant upon the interviews properly to be described as a confession or confessions? Section 82(1) of the Act defines confession as follows: ''confession' includes any statement wholly or partly adverse to the person who made it, whether made to a person in authority or not and whether made in words or otherwise.'

His answers upon the interviews, the tapes of which the jury heard, were, as his counsel described, exculpatory. Their principal damaging effect was to demonstrate that the appellant was evasive and prevaricating and that many of the statements which he made proved eventually to be false.

The question therefore arises: can a statement be described as wholly or partly adverse to the person making it, when it is intended by the maker to be wholly exculpatory and appears to be so on its face, but becomes damaging at the trial because, for example, its contents can by then be shown to be evasive or false or inconsistent with the maker's evidence on oath?

. . . The words of the section do seem prima facie to be speaking of statements adverse on the face of them. The section is aimed at excluding confessions obtained by words or deeds likely to render them unreliable, i.e. admissions or partial admissions contrary to the interests of the defendant and welcome to the interrogator. They can hardly have been aimed at statements containing nothing which the interrogator wished the defendant to say and nothing apparently adverse to the defendant's interests. If the contentions of the appellant in the present case are correct, it would mean that the statement 'I had nothing to do with it' might in due course become a 'confession', which would be surprising, with or without section 82(1).

We are inclined to the view that purely exculpatory statements are not within the meaning of section 82(1). We are supported in this view by the learned author of Cross on Evidence, 6th ed., p 544. The same view is taken by Andrews and Hirst on Criminal Evidence, paragraph 19.04. They cite the words of Lord Widgery CJ in Pearce (1979) 69 Cr App R 365, where he says 'A denial does not become an admission because it is inconsistent with another denial.'

In so far as they express a contrary view we respectfully dissent from the views of the Supreme Court of Canada in Piche v R (1970) 11 DLR 700, and of Chief Justice Warren in Miranda v Arizona 384 U.S. 436, 477 (1975), where he said that such statements 'are incriminating in any meaningful sense of the word.'

However in the light of what we have to say hereafter, we do not need to come to any firm conclusion on this aspect of the case . . ."

(The observation in Pearce which is attributed to Lord Widgery CJ is contained in a judgment prepared by Lloyd J.) The observations by Lord Lane CJ in Sat-Bhambra, although technically obiter dicta, were characteristically analytical.

    55.  In Park (1994) 99 Cr App R 270 a defendant had been stopped by police officers whilst driving a car which contained property stolen in burglaries. The question arose whether a statement was a confession. The court applied the interpretation of section 82(1) which had been suggested in Sat-Bhambra: at 274. Kennedy LJ added the following observation (at 274):

"In the current edition of Archbold (1993) at paragraph 15-293, dealing with this particular section and that authority, it is said that section 82(1) was not aimed at statements which the maker intended to be exculpatory and which were exculpatory on their face, but which could later be shown to be false or inconsistent with the maker's evidence on oath. It seems to us that that is precisely the situation here in relation not only to the answers in which the appellant denied ownership of certain items but also in relation to those answers where he accepted ownership of certain items, and accordingly, in our judgment, neither the conversation at the roadside nor, when we come to it, the conversation in the police station yard amounted to a confession."

It may well be that the statement made by the defendant in Park was in fact a mixed statement, i.e. partly adverse to the defendant. But the Court of Appeal concluded that a wholly exculpatory statement falls outside the scope of section 82(1). It is, however, on the reasoning in Sat-Bhambra that one is principally dependent.

X. Section 82(1)

    56.  In the present case the Court of Appeal did not disagree with the interpretation adopted in Sat-Bhambra but concluded that under section 3(1) of the Human Rights Act 1998, which came into force on 2 October 2000, that decision must be reconsidered. Before this view can be examined it is necessary to consider the interpretation of section 76, read with section 82(1), and viewed in the context of section 78, as a matter of ordinary statutory interpretation. That is necessary because counsel for the accused submitted that the words in section 82(1) "'confession' includes any statement wholly or partly adverse to the person who made it" provide a gateway to bringing wholly exculpatory or neutral statements within the scope of section 76. Counsel emphasised that the legislature could in section 82(1) have used the straightforward definition that "confession" means a wholly or partly adverse statement. That, he conceded, would have left no room for doubt. But, he said, "includes" is an expansive concept. In my view this argument attaches too much importance to this choice of language. The explanation for the drafting technique is probably that the word "includes" was selected because the core meaning of "confession", i.e. a wholly adverse statement, is at the forefront. Section 82(1) then extends that core meaning to partly adverse statements. This restates the effect of R v Harz and Power [1967] 1 AC 760. In other words, in terms of admissibility no distinction is to be made between a full confession of guilt and admissions falling short of guilt. But, in any event, it is wholly implausible that the draftsman would have made express reference only to wholly or partly adverse statements if he also had in mind covering under the definition of "confession" wholly exculpatory statements. There is no support in the preceding case law for such a view: R v Harz and Power, supra. Neither the Eleventh Report of the Criminal Law Revision Committee nor any other external aid to PACE give any assistance to such an argument. The plain meaning of the statute is against such a strange interpretation. And it is inconceivable, on policy grounds, that the legislature would have introduced such a fundamental change in the law by leaving the question whether an exculpatory statement is a confession to depend on developments at trial.

    57.  There is nothing in the statutory context which compels a strained interpretation of section 82(1). After all, as has been pointed out, section 78 is wide enough to permit the court to exclude wholly exculpatory statements which were obtained by oppression, e.g. in order to fabricate a false exculpatory account to the detriment of the defendant. In these circumstances the House ought now to affirm the interpretation suggested in Sat-Bhambra.

    58.  Properly construed section 76(1), read with section 82(1), requires the court to interpret a statement in the light of the circumstances when it was made. A purely exculpatory statement (e.g. "I was not there") is not within the scope of section 76(1). It is not a confession within the meaning of section 76. The safeguards of section 76 are not applicable. But the safeguards of section 78 are available.

XI. Section 3 of the Human Rights Act 1998

    59.  In the Court of Appeal counsel for the defendant relied on the decision of the European Court of Human Rights in Saunders v UK (1997) 23 EHRR 313. He emphasised what the European Court of Human Rights said (at para 71):

"In any event, bearing in mind the concept of fairness in article 6, the right not to incriminate oneself cannot reasonably be confined to statements of admission of wrongdoing or to remarks which are directly incriminating. Testimony obtained under compulsion which appears on its face to be of a non-incriminating nature - such as exculpatory remarks or mere information on questions of fact - may later be deployed in criminal proceedings in support of the prosecution case, for example to contradict or cast doubt upon other statements of the accused or evidence given by him during the trial or to otherwise undermine his credibility. Where the credibility of the accused must be assessed by a jury the use of such testimony may be especially harmful. It follows that what is of the essence in this context is the use to which evidence obtained under compulsion is put in the course of the criminal trial."

Relying on Saunders, and section 3(1) of the Human Rights Act 1998, counsel for the defendant invited the court to reconsider Sat-Bhambra. On the other hand, counsel for the prosecution submitted that Sat-Bhambra was compatible with section 3(1) and was good law.

    60.  Rix LJ observed (at para 37):

"In our judgment, the Human Rights Act 1998 and in particular its section 3(1), which provides that 'So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect to in a way which is compatible with the Convention rights', require us to reconsider this issue. The discussion in Sat-Bhambra already indicates that two views are possible as to what amounts to an 'adverse' (or, more generally, an incriminating) statement and Saunders's case shows that the ECtHR has adopted for itself the view expressed by the Supreme Courts of Canada and the USA rather than that of our courts. The definition of 'confession' is an inclusive one and clearly intended to be a broad one. The question in any event arises: at what time is the judgment, whether a statement is or is not a confession, whether it is or is not adverse, to be made? Sat-Bhambra indicates that the decision is to be made at the time of the statement; but prima facie one would have thought that the test is to be made at the time when it is sought to give the statement in evidence. That is, to our mind, confirmed by the underlying rationale of section 76. We do not agree that it is primarily to prevent verballing. That is now the function of Code C, and in any event verballing is a danger whether an accused speaks voluntarily or not. Section 76 goes back to an earlier time when the concern was that an accused, who has a right of silence, may be prevailed upon both to surrender his right and to make unreliable statements by reason of either 'oppression' or 'anything said or done . . . likely . . . to render unreliable' what he says (section 76(2)). In such circumstances the prosecution bear the criminal burden of proving that the confession was not obtained in such circumstances. If therefore an accused is driven to make adverse statements by reason of oppression, why should he lose the protection of section 76(2) just because, although he may have sought to exculpate himself, in fact he damned himself?

We therefore think that the confidential statement was, at the time it had to be considered, a confession. . . ."

On appeal to the House counsel for the defendant supported this interpretation.

    61.  It is now necessary to examine this reasoning. The reliance by the Court of Appeal on the decision in Saunders was misplaced. As the cited passage from the judgment in Saunders shows, the ECtHR was solely concerned with evidence obtained under compulsion or under threat of a legal penalty. The ECtHR did not make any pronouncement on all statements made to investigators during a criminal investigation, in whatever context. The ECtHR did not attempt to define what might amount to a confession for the purposes of section 76 of PACE. The Saunders decision is of no assistance in the present context. (Saunders was discussed in Brown v Stott (Procurator Fiscal, Dunfermline) [2003] 1 AC 681: it is not necessary to cover the same ground in this case.)

    62.  That brings me to the reliance by the Court of Appeal on section 3(1) of the 1998 Act. Undoubtedly there is a strong obligation under section 3(1) to interpret legislation compatibly with Convention rights. There is a strong rebuttable presumption in favour of an interpretation consistent with Convention rights: Ghaidan v Godin-Mendoza [2004] 2 AC 557. Rix LJ held that the interpretation of section 76(1), read with section 82(1), which was suggested in Sat-Bhambra, would be incompatible with a Convention right. The House must, however, consider whether in truth any Convention right is engaged. While it is not spelt out in the judgment of the Court of Appeal, Rix LJ presumably had in mind that article 6 is the particular Convention right in question. There is, however, nothing in the text of article 6 or in the corpus of European jurisprudence which supports the view that sections 76(1) and 82(1) create any incompatibility with article 6. Given the unrestricted capability of section 78 to avoid injustice by excluding any evidence obtained by unfairness (including wholly exculpatory or neutral statements obtained by oppression), sections 76(1) and 82(1) are in my view compatible with article 6. The decision of the Court of Appeal to the contrary was wrong.

XII. Postscript

    63.  In the present proceedings the defendant was cross-examined on his earlier statement under section 4 of the Criminal Procedure Act 1865 (commonly referred to as Lord Denman's Act). The provision of section 119 of the Criminal Justice Act 2003, governing previous inconsistent statements, contain changes but are not yet in force. The effects of the changes are a matter for future debate. The House was told that this provision will come into force on 5 April 2005.

XIII. Disposal

    64.  I would answer the certified question, which is set out in para 50 above, in the negative.

    65.  For the reasons given by Lord Bingham and the reasons I have given, I would also allow the appeal and make the order which Lord Bingham proposes.

LORD RODGER OF EARLSFERRY

My Lords,

    66.  I have had the privilege of considering in draft the speeches of my noble and learned friends, Lord Bingham of Cornhill and Lord Steyn. For the reasons they give I too would allow the appeal, restore the respondent's conviction and remit the matter to the Court of Appeal.

My Lords,

    67.  In 1993 I set my name to the Law Commission's Report, Legislating the Criminal Code: Offences against the Person and General Principles (Law Com No 218, 1993). This followed wide and expert consultations on two earlier drafts of a Criminal Code, the first drafted by an eminent academic team, Report to the Law Commission on the Codification of the Criminal Law (Law Com No 143, 1985), and the second by the Commission with extensive help from the code team, A Criminal Code for England and Wales (Law Com No 177, 1989), and a further consultation paper, Legislating the Criminal Code: Offences against the Person and General Principles (LCCP 122, 1992). In relation to duress, the draft codes expressed in code style the recommendations of the Law Commission's earlier work on defences of general application, Defences of General Application, Working Paper No 55, 1974, and Report on Defences of General Application, Law Com No 83, 1977. These took a largely subjective view of the requirements of the defence, but the 1993 Report carried this even further.

    68.  The overall result was a proposed defence which had "as its guiding principle the reasonable reaction of the defendant in the circumstances as he or she believed them to be" (Law Com No 218, para 29.7). Thus (i) there had been almost no support on consultation for the approach in Graham that the defendant's belief that a threat had been made had to be reasonable; consistently with the defence of self-defence, therefore, the defendant should be judged on the facts as she honestly believed them to be (paras 29.8 to 29.10); (ii) the substantial balance of opinion on consultation had been that the defence should be available to a defendant who honestly believed that official protection would be ineffective (paras 29.3 to 29.7); and (iii) there remained strong support for the view that the defence should apply where the particular defendant in question could not reasonably have been expected to resist the threat (paras 29.11 to 29.14). The draft Bill reflected this consistently subjective approach to the defence.