Z, R v

At his trial at the Central Criminal Court before HH Judge Paget QC and a jury the appellant, Z, was convicted on a count of aggravated burglary (count 2) and sentenced to a term of 9 years’ imprisonment. He was acquitted on a further count of aggravated burglary (count 1). He was given leave to appeal against conviction by the full court on two grounds. He renews his application for leave to appeal on a third ground, and adds a fourth to that application. We have given him leave to advance those two further grounds during the hearing of this appeal. He has also been given leave to appeal against sentence.

Both counts of the indictment concerned the burglary of the same premises, the home of Mr and Mrs W. Count 1 concerned an alleged burglary on 29 August 1999, which the appellant said had never occurred, although he admitted being in Mr W’s home that night. On that count the jury preferred the appellant’s evidence to that of Mr W or at any rate were in doubt as to which to prefer. Count 2 concerned a burglary on 24 January 2000, which the appellant admitted carrying out, but subject to the defence of duress. On that count the jury were satisfied that he was not entitled to that defence and so convicted him.

The alleged duress concerned a man X, who had become the boyfriend and minder of a woman Y in about July or August 1999. Y ran an escort agency and was involved in prostitution. Before X’s appearance on the scene, the appellant had been Y’s minder and driver for a few months. He had spent a life time in crime: his convictions were all before the jury and included theft, handling, possession of an offensive weapon, possession of drugs, assault occasioning actual bodily harm, burglaries (commercial and residential), and possession with intent to supply (his girlfriend); but not robbery, aggravated burglary or using violence with a weapon.

After X came on the scene, the appellant’s work for Y diminished and X was urging Y to get rid of him. In October or early November there was a row and the appellant finished working for Y. However, the relationships were not completely severed because Y was renting the appellant’s flat from him in Lewisham (while he was on the run from the police).

X had a reputation, said a police witness, as a violent man, and also as a drug dealer “who will deal with any kind of drug”. He had a criminal record, but “not a very lengthy one”, as the judge put it. It included convictions for burglary, drug offences and dishonesty; but the only conviction for violence went back to 1986, when he received 28 days for an assault occasioning actual bodily harm. X’s brother, who gave evidence for the defence and said he was not on good terms with him, described him in these terms: “His way of life is crime. He projects a gangster image and he bullshits and talks crap. I take him as an idiot and his imagination runs riot…[He] said a lot of things which are untrue and fantasy. I do not know anybody to believe what he says.”

The core of the appellant’s duress defence, however, turns on X’s own boast (and/or threat) that he had committed one or even three murders in the course of his drug dealings, and that the body of one courier or dealer was in the boot of a red Rover which was used by him and Y. It was in any event true that a man, AB, had died on 16 December 1999 of a heroin overdose, that his body was found in the red Rover in April 2000, and that X and Y were indicted for his murder and stood trial in January 2002. The police believed that AB had been injected with a fatal dose of heroin because of the large sum of money that he had with him. We have been informed that the jury of that trial were discharged, and that X faced a second trial in May 2002, but was acquitted. At the time of the appellant’s trial, however, X and Y were in custody awaiting the first trial. The appellant’s duress defence was that X had used his account of murder or murders to back up a threat to the appellant of deadly consequences to him and his family if he did not carry out a burglary at Mr W’s house, where it was known that there was a safe with what was thought to be a lot of money in it.

It is necessary at this point to say something further about the earlier incident at Mr W’s house on 29 August 1999, which gave rise to the first count on the appellant’s indictment. Mr W had, in his wife’s and baby child’s absence, phoned Y’s agency for a prostitute. The appellant was sent with a girl to Mr W’s home. At the door, Mr W, who had changed his mind, pretended that he had not made the call. The appellant, however, insisted that the £50 fee be paid nevertheless. Mr W gave evidence that the appellant had forced his way into his house at knife point and compelled him to pay, and that while he was getting money from a safe in his office on the first floor the appellant stole some £4,000 in cash out of the safe. The appellant’s evidence on the other hand was that he merely received £50 out of the safe, although he saw that it was full of money and later reported that fact back at Y’s office to her and X. As we have said, the appellant was acquitted on that count.

We revert to the defence of duress pleaded with respect to the appellant’s second visit to Mr W’s house. The appellant’s evidence was that in November 1999 Y owed him some £200 in rent. At Y’s office there was a fight between the appellant’s girlfriend and Y, in which Y came off the worse. X went to help her, but the appellant warned him off. X ended up allowing the appellant to take Y’s red Rover as security for the outstanding rent. The appellant parked it on the drive at his flat at Lewisham which he was renting to Y. The next day it was gone. Presumably Y had retained a key. Then shortly before Christmas 1999 the appellant got a phone call from X saying that he wanted to see him. X went round to where the appellant was living. He apologised for Y taking her car back, and explained that he was short of cash as he was doing a big cocaine deal. He also wanted the key that the appellant had to the Rover. The appellant said he would look for it. Some time later, shortly after Christmas, X phoned again. He was anxious for the key to the Rover. He came round, and told the appellant that he was doing a cocaine deal, had “dealt with” two dealers (by which the appellant seemed to be saying that X had killed them, but this was rather obscure), that someone had walked in at the wrong moment and had to be killed as well, which was done by injecting him with a heroin overdose. The appellant was not sure whether to believe him or not, but X offered to show him the body in the boot of the Rover. The appellant gave him a key, but X later told him it was the wrong key. A few weeks after that the appellant said that he was ambushed outside his home one morning by X and a black man (the appellant also said that this occurred in the evening, but the discrepancy does not appear to have been picked up at trial). X demanded that the appellant get him money from Mr W’s safe: the black man (“a lunatic yardie”) would go with him and see that it was done. If he did not do it, he and his family would suffer.

The black man drove him straightway round to Mr W’s house. It was about 7 am. He had no chance to go to the police. In any event, they would not be able to protect all his family. The black man gave him a knife and told him he had a gun. The black man stayed with the car, while he rang the doorbell. He pretended to be a policeman, but Mr W recognised him and slammed the door shut. He broke through a window and had the knife in his hands. Mr W barricaded himself in a room at the back. The appellant could not get at Mr W to open the safe, so he tried to lift it, but could not. The alarm was ringing, and he ran off back to the car. Back at Y’s office, X raved, but the black man said the appellant had done all that he could.

Mr W’s account was consistent, save that he said that he saw the appellant drive off, alone in the car. Mrs W said she hid upstairs with the baby and later saw the appellant walk to his car, a white Astra, and that there was no black man in it. However, a neighbour, called by the defence, said that she had heard the alarm go off and seen a dark-skinned man standing opposite the Ws’ house. The judge commented: “she is a perfectly respectable and wholly independent witness and is some support for the fact that there was another man”.

On 14 April the body was discovered in the boot of the Rover in Kent. On 17 April the police arrested X and Y. They were interviewed, and bailed on 19 April. They said that the appellant had had possession of the Rover in December 1999.

On 5 June 2000 the appellant was arrested and interviewed in respect of the burglaries. He denied everything. On 7 June Mr and Mrs W identified him at an identification parade. He was charged, and produced a hand-written note, which read:

“1.

I rely on the defence of duress.

2.

I am sorry for my foolishness in not raising this account at an earlier stage.

3.

The threats of violence against me and my loved ones continues.

4.

I have asked my legal representatives to investigate this matter further.

5.

When they have done so I will be happy to provide fuller details.”

Mr Blair-Gould, who appears on this appeal, as he did at trial, for the Crown, points out that the note does not specify that it applies only to the second incident and gives no details of the identity of the person or persons imposing the duress nor of its circumstances.

On 26 June the appellant was interviewed by the Kent police in the presence of his solicitor in respect of the body in the boot. He made a witness statement which he signed. In it he explained his account of his relationships with Y and X, and how the Rover had come to be on the drive by his Lewisham home for a single night sometime well before Christmas. He said “I guessed they took it back but I don’t know this. I tried to contact them on the telephone but to no avail. I have had absolutely no contact with [her] since.”

In addition to making the witness statement, The appellant also had an “off the record” conversation with the police that day, on the basis of which on the next day they drew up a report setting out what he had told them in full. This report (the “officer’s report”) states in its first paragraph that “there was a great deal of information [the appellant] gave that he was not prepared to put in statement form and wished to remain confidential for fear of reprisals against himself and his family.” In it was set out the appellant’s account of his dealings with X as he was later to describe them to the court at his own trial, including X’s threats, with these important differences, which came to have considerable significance for the Crown’s case against him: first, the officer’s report says nothing about X’s threats against him and his family being related to the demand that he carry out a burglary of Mr W’s house, as distinct from being related to a demand for silence over the information relating to the body in the boot; and secondly, the report does not date X’s tale about his murder and his threats to the appellant in that connection to a time before the burglary, but to a date in late February or early March 2000 and in any event before the death of the appellant’s son on 23 March 2000.

It is not disputed that the full details narrated by the appellant that day to the police, to the extent that they went beyond what was in the witness statement, were intended to be confidential. Quite what assurance was given to the appellant by the police is not absolutely clear. Mr McNulty, who appears for the appellant on this appeal as he did at trial, informs us however, and it has not been disputed, that when the police who had conducted that interview came to give evidence about it, in circumstances which we will describe in further detail below, they were unequivocal that a promise of confidentiality had been given, and were embarrassed to be asked to give evidence about it. It is also common ground that it was agreed that no questions would be asked about the burglary offences with which the appellant had been charged. Nor is it disputed that none of the precautions which Code C would have required if the appellant was being interviewed in connection with his own arrest were in operation on 26 June: thus, the appellant was not cautioned, no contemporaneous record or tape was made, but instead the police officers made only brief trigger notes, which were not shown to the appellant or to his legal representative, nor was he shown the written up report, nor asked to sign it.

By at latest 2 October 2000 a copy of the officer’s report had been disclosed to the appellant. On 23 October he gave notice of application for further disclosure of any material which suggested that the admissions made by X to the appellant, that he committed murder, were true and that thus the appellant had good grounds for believing the admissions. The notice went on to say that the appellant relied upon the defence of duress in relation to count 2, that the source of the duress was X, and that the material threats were made to the appellant by X in the context of admissions as to X’s complicity in the murder of AB. This application was heard at court, and the material was pursued in further correspondence.

At his trial the appellant gave evidence to the effect stated in para 8 above. He was asked in the course of his evidence in chief what had changed between 7 June 2000, when he had provided no details of his duress defence, and his trial in February 2001 when he had explained how he had acted in fear of X’s threats. He said that X and Y were “safely locked up now so there’s no threat to my family no more”.

As a result of the appellant’s evidence concerning X’s threats in explanation of his defence of duress, Mr Blair-Gould sought to cross-examine the appellant on the terms of the officer’s report, since he wished to establish that in June 2000 the appellant had placed X’s threats in late February to early March 2000 and in any event after the burglary of 24 January. The appellant said that he was under the impression that the conversation was off the record and would stay between him and the officers, and he did not want to say anything about it whatsoever. This led to a discussion in the absence of the jury in which Mr McNulty applied to exclude cross-examination on the officer’s report on the ground that it would not be admissible under section 76 of the Police and Criminal Evidence Act 1984 (“PACE”) as a confession; alternatively fairness, he submitted, required its exclusion under section 78 of PACE. He complained that Mr Blair-Gould had already broken confidentiality in making mention of the officer’s report, but that he still wished to maintain the confidentiality of its contents. Archbold was consulted and in the light of the then current equivalent of paras 15-261/2 of Archbold 2003 Mr McNulty felt bound to concede that authority (eg R v. Sat-Bhambra 88 Cr App R 55) was against his submission under section 76: in that statements intended to be exculpatory did not fall within the definition of “confession” in section 82(1) of PACE as something “adverse”. Ultimately the judge ruled in favour of permitting the cross-examination. He described it as “not…altogether the easiest question to decide”, but thought that the promise of confidentiality had already been waived by the appellant because he had himself explained that now that X was in custody his fears of him had gone. The transcript then records the following comment from the appellant: “I’m in fucking prison, aren’t I”.

In cross-examination the appellant explained that in his interview with the police officers he had not been specific or clear about dates, because he had regarded the occasion as off the record: but in any event the position was that X had first mentioned killing someone just before Christmas, but did not go into the full details until the later conversation in February/March. It cannot be said that the appellant’s evidence was clear, and at one point there was this exchange:

“A. You are confusing me.

Q. I think you are confusing yourself because you are inventing a story as you go along.”

However, when in due course the police officers were called by way of evidence in rebuttal, their evidence was no clearer. The judge summed up to the jury as follows:

“You heard those two officers called to give their account… but you may think that they were not sure exactly what was said because they were recording the information for a wholly different purpose. It may be that the defendant’s account of that may be right.”

There was also some further evidence from the appellant in re-examination regarding the significance for him of the promise of confidentiality even after X was in custody. The evidence in re-examination was elicited (as it would have to be, in the absence of any special dispensation by the judge) without further instructions from the appellant. He said that he was “in severe trouble” (ie danger) in prison, for having talked to the police. He also said that without the promise of confidentiality, he would never have spoken to the police.

This then is the factual and forensic background to the four grounds of appeal argued on behalf of the appellant. The first two relate to the admission of cross-examination and rebuttal evidence on the officer’s report; the third and fourth relate to the judge’s directions on the defence of duress.

Mr McNulty submits that the judge acted unreasonably in failing to exclude all reference to the officer’s report or at least its contents and in this connection in failing to take account of the breaches of Code C which had accompanied the making of that report. He also failed to take into account the appellant’s rights to be protected against danger to his or his family’s life and physical welfare, rights enshrined within articles 2 and 8 of the European Convention of Human Rights and Fundamental Freedoms (“ECHR”). On the importance of maintaining promises made by the police which have been relied on by an accused or potential accused, Mr McNulty relied on R v. Croydon Justices, ex parte Dean [1993] QB 769: there the divisional court quashed a committal on the ground that it was an abuse of process to prosecute Dean, a seventeen year old who had assisted the police repeatedly over a period of five weeks after a promise to him that he would not be charged in connection with the subject-matter of his assistance. Staughton LJ, albeit he considered the case before the court to be “quite exceptional”, cited with approval the dictum of McMullin V-P in the Hong Kong court of appeal in Chu Piu-wing v. Attorney-General [1984] HKLR 411 at 417/8:

“there is a clear public interest to be observed in holding officials of the state to promises made by them in full understanding of what is entailed by the bargain.”

For the Crown, on the other hand, Mr Blair-Gould submits that the defence had never previously suggested that the contents of the report were confidential and had pressed for disclosure of all material relating to its subject-matter of X’s admission of murder. It had also introduced that subject-matter in the appellant’s evidence in chief; and the appellant had explained his lack of reticence on the basis that he no longer feared X, since he was in custody, and his family was safe. As for Code C, that did not apply as the police were interviewing the appellant not in connection with his own charge but a separate case against X and Y. In any event, the police officers did not have a “full understanding” of the bargain (cf McMullin V-P’s dictum), since they had no reason to suppose that what the appellant was about to or did tell them had anything to do with his own case. There was a public interest in exposing the appellant’s false reliance on his duress defence which overrode any public interest in the promise of confidentiality.

The judge described this as a difficult issue and we are inclined to agree that it is, for the very reason that it concerns two conflicting public interests. Moreover, Mr McNulty also stressed an argument which, in the emergency of the moment, he failed to make, perhaps even to appreciate, at the time: that although the subject-matter of the revelations about X are the same, whether said only in confidence to the police or exposed to the court at trial – a fact that gives strength to the judge’s view that the appellant had himself chosen to waive confidentiality – nevertheless there is an important difference between speaking in one’s own defence at trial (which no one, not even X, could object to) and speaking voluntarily to the police about someone else’s case. The latter alternative could lead to dangers in particular to a prisoner, whether from X or others, which went quite beyond the former situation. Moreover, although the appellant at trial had volunteered his evidence about what X had told him, he did not say that he had previously spoken to the police about it, even though it might even have assisted him to say that (subject, of course, to the point in rebuttal that he had given a different version on the previous occasion which was said to explode his defence at trial).

In our judgment, on the arguments addressed to him, the judge cannot be said to have exercised his discretion erroneously or unreasonably. On any view, the appellant’s evidence about his fears was inconsistent: he both said that he no longer feared X now that he was in custody, and sought to say that he did fear reprisals (“I’m in fucking prison, aren’t I”). The appellant’s reliance on the importance of confidentiality, especially in the absence of the distinction now sought to be drawn, was therefore at best insecure. And if the reason for the confidentiality had gone, then it is difficult to say that further exposure of the 26 June interview was unfair, and the conflict in public interests was also resolved. In such a situation, and where Mr McNulty had conceded that authority was against him on his section 76 argument, the alleged breaches of Code C would also have faded in importance: for Code C would only apply directly if the appellant was being interviewed on his own case, and the argument for bringing them in by way of analogy only applies with strength where the consideration is reliability (the concern of section 76) as distinct from confidentiality.

We therefore think that the judge’s exercise of discretion cannot be faulted. The issue was never addressed again after the appellant’s evidence in re-examination. There remains the underlying question on reliability, but that is best visited under ground two, which directly raises it in the context of section 76.

Mr McNulty submits that it is now clear, in the light of Saunders v. UK (1997) 23 EHRR 313, that the view expressed in Sat-Bhambra as to the limited meaning of a “confession” in section 76 is wrong. A confession should be regarded as anything which turns out to be in fact self-incriminating, even if at the time the remarks were made they were intended to be exculpatory. The quality of a statement must be determined from the way it is sought to be employed, rather than its formal content. Though the officer’s report was not directly self-incriminating, the use put to it at trial by the prosecution gave it the character of an “adverse” statement.

Section 76 provides in part 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;

(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.”

Section 82 (1) of PACE 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.”

Section 82(3) also provides:

“Nothing in this Part of this Act shall prejudice any power of a court to exclude evidence (whether by preventing questions from being put or otherwise) at its discretion.”

In Saunders the European Court of Human Rights (at para 71) said this:

“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.”

In Sat-Bhambra the defendant was arrested by customs officers for importing heroin. He was extensively interviewed on ten tapes. An application to exclude the interviews succeeded in part on the ground that the last six tapes were made at a time when the defendant was affected by medication given for his diabetes. When the medical expert who had given evidence on the voire dire relating to that application later gave evidence at the trial and said that the defendant might have been suffering from hypoglaecemia throughout the interviews, a fresh application was made to exclude the four first tapes. The judge refused to do so on the basis that the evidence had already been admitted, whereas section 76(2) speaks of confessions which the prosecution “proposes to give in evidence” and a prohibition that the court “shall not allow the confession to be given in evidence”. This court agreed: once the evidence was in, it was too late to prevent its admission under section 76 or to exclude it under section 78; but the court retained the power under section 82(3) to take all proper steps to remedy any possible unfairness. This the judge had done: he had clearly decided that the statements were voluntary, but impeccably summed up to the jury the evidence touching on the defendant’s condition and the reliability and weight of what he said in interview. In the light of that decision, this court did not have to make up its mind about another point which had been argued, namely as to whether the defendant’s exculpatory remarks in interview were in any event a “confession” within section 76 and section 82(1). Lord Lane CJ’s remarks on this issue were therefore obiter. He said (at 61/2):

“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 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 “wholly or partly” are no doubt included in order to emphasise the view of the House of Lords in Customs and Excise Commissioners v. Harz and Power (1967) 51 Cr. App.R. 123, (1967) 1 A.C. 760, and do not help to solve the problem. 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, 6^th 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 C.J. 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 D.L.R. 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.””

That view was adopted and applied by this court in R v. Park (1999) Cr App R 270 at 274 without further reasoning. The defendant there was stopped by the police whilst driving a car which contained property stolen from burglaries. It was held that exculpatory answers given denying ownership of some items and accepting ownership of others were not confessions. Nor was the occasion an interview requiring the protection of the PACE Codes. The appeal was dismissed.

On this appeal Mr McNulty submits that the decision of Saunders and the enactment of the ECHR into English law as from 2 October 2000 by means of the Human Rights Act 1998 (the “HRA 1998”) require this court to reconsider the issue. Mr Blair-Gould relies on Sat-Bhambra as a still correct statement of the law. “I have nothing to do with it” cannot be a confession. If Parliament had wanted to say that “confession” means anything ultimately embarrassing, it could have said so. What section 76 was concerned about was the danger of verballing.

In our judgment, the HRA 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 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. Indeed, although no reference was, by agreement, made to the appellant’s charge of burglary during the interview with the police, the appellant had already written his note claiming duress and, although his note was unparticularised, it is difficult to think what defence of that nature he could possibly have had in mind, other than by reference to X and the body in the boot. That remains so, whether the defence was claimed truthfully, opportunistically, or falsely and cynically. Thus in practical effect, if not in express form, the appellant was on 27 June setting out the basis of his defence: his fear of X. His applications for disclosure made that expressly clear by October 2000. In such circumstances, why was this interview not a confession? We can, in other words, leave open to another day whether “I did not do it” is a confession. This case is that of an accused who says “I did do it, but under duress”; and the duress which he claims, so the prosecution seek to prove, is an incoherent one because it only operates from a time after the burglary.

The judge therefore erred, albeit he could not be blamed for doing so since he founded himself on Sat-Bhambra as written up in Archbold and on Mr McNulty’s own concession on the same basis, in not considering the position under section 76(2). There has been some discussion before us as to whether section 76(2) strictly applies to the prosecution’s desire to cross-examine the appellant on the officer’s report (in circumstances where there was no attempt to put that document itself into evidence, since it was not made or signed by the appellant) as distinct from the prosecution’s desire to call evidence from the two Kent police officers by way of rebuttal. The same point would apply to section 78. However, whatever may be the strict position as to that, no point is taken on it, since Mr Blair-Gould accepts that the judge’s ruling in effect covered both matters. Moreover, in practice the point in most cases is unlikely to matter, because a judge would not permit the prosecution to cross-examine on material that would be (or even had been) excluded under sections 76 or 78. However, in case the point is important in some other case, we would draw attention to it and reserve the position. On the basis that those sections do not apply to cross-examination, section 82(3) would nevertheless still apply.

We have therefore to decide whether, if it had been called upon to do so, the Crown would have met the burden on it under section 76(2). We do not think that it would. The appellant only gave the interview because he was assured it would remain confidential. It was therefore given “in consequence of anything said or done”. Was it in consequence likely, in the circumstances existing at the time, to be rendered unreliable? We think that this is where, by analogy at any rate, the alleged breaches under Code C play a powerful role. Moreover, the very fact that the police were primarily interested in the role of X and Y, and were not at all interested in the appellant’s position vis a vis the burglary on the 24 January, was conducive to the likelihood of unreliability as to the fine detail of what exactly was said at some earlier as distinct from some later stage. In a sense, the proof of this pudding is in the eating, because when the two police officers were called, their evidence did not, it seems, contradict that of the appellant himself. Hence the terms in which the judge summed up their evidence to the jury (see at para 21 above). It is almost as though the judge, in retrospect and founding himself on section 82(3) and the true ratio of Sat-Bhambra, was seeking to remove from the case the sting of the prosecution’s reliance in this respect on the officer’s report.

In the light of the judge’s summing up on this point we have therefore asked ourselves whether the conviction remains safe, despite the admission of the appellant’s unreliable confession. We bear in mind that the defence of duress was what the case was about; that the officer’s report was used to argue that the defence was completely excluded as being chronologically incoherent; that despite the police officers’ evidence, this point relating to the timing of X’s admissions of murder played, as we have been informed, a material role in the Crown’s final speech; and that the judge’s comments on the officers’ evidence, although helpful to the appellant, were comments only, which the jury were entitled to disregard, rather than directions. We are inclined to think, therefore, that there is material here for finding the conviction to be unsafe. We will, however, revert to the question of safety after dealing with the other two grounds of appeal.

It has in recent years become classic doctrine to direct a jury on the defence of duress by means of a series of questions. The burden of proof on each of them is on the prosecution, but the prosecution’s success in satisfying the jury on any one of them has the effect of destroying the defence. The first two questions are always necessary, the third and fourth may or may not arise, depending on circumstances and whether the matters covered by them are in issue. The first two questions ask whether the defendant was in fact driven by threats or whatever is relied on as the duress to act as he did; and whether a reasonable person put in the position of the defendant would also have been so driven. These two questions, therefore, ask first, whether the defendant was, on a subjective level, driven by threats to act as he did, and secondly, whether such threats, on an objective level, would have operated similarly on a reasonable person. No complaint is made as to the judge’s directions to the jury on these first two questions.

The third and fourth questions reflect two recognised limitations to the defence of duress, which arise (3) if the defendant fails to escape from the threats when he could have done so; and (4) if the defendant has put himself voluntarily in a position in which he is likely to be subjected to threats. Ground three presently under consideration reflects the third question, and ground four below reflects the fourth question. Both are inchoately referred to in the speech of Lord Morris of Borth-y-Gest in Director of Public Prosecutions for Northern Ireland v. Lynch [1975] AC 653 at 670, (1975) 61 Cr App R 6 at 10:

“Duress must never be allowed to be the easy answer of those who can devise no other explanation of their conduct, nor of those who readily could have avoided the dominance of threats, nor of those who allow themselves to be at the disposal and under the sway of some gangster-tyrant.”

They are also referred to in R v. Sharp [1987] QB 853 at 857, (1987) Cr App R 207 at 210 in the judgment of Lord Lane CJ in this court, thus –

“No one could question that if a person can avoid the effects of duress by escaping from the threats, without damage to himself, he must do so…It seems to us that it is part of the same argument as to be practically indistinguishable from it, to say that a man must not voluntarily put himself in a position where he is likely to be subjected to such compulsion.”

On this third question, there was at trial no issue as to whether, assuming the first two questions to have been decided in his favour, the appellant could have done anything to escape from the threats. This is because it appears to have been accepted by the prosecution that, on the appellant’s account of events, he was driven by the black man, on X’s orders, directly from being ambushed outside his house on the morning of 24 January to Mr W’s home. There was no escape; the black man was armed. Instead, the prosecution took, and cross-examined the appellant on, a somewhat different point: namely whether he could have avoided the effects of the duress, not by any means of escape, or by going to the police or something of that kind, but by a pretence at carrying out the robbery, or a half-hearted attempt at it.

The judge directed the jury on this third question as follows (at 12D/13B):

“The third question is: Could the defendant have avoided acting as he did without harm coming to his family? In fact, as we know, having broken in, he left empty handed. No harm apparently has resulted. I will remind you of the evidence in due course but Mr X, according to the defendant, accepted that position.

If he had left as soon as the alarm went off and as soon as [Mr W] started telephoning the police, would it have been any different? Could he have pretended that he could not find the house? You will remember some of the questions that he was asked on this topic by Mr Blair-Gould. Could he have pretended to the minder – if there was a minder – that there was no answer when he rang? All those are matters for you to consider. If you are sure that he could have avoided acting as he did without harm coming to his family, again the defence fails and he is guilty. But if you are not sure that he could have avoided acting as he did without harm coming to his family, then there is one final question…”

Mr McNulty submits that this is a misdirection. He makes the following complaints. First, the question is put in entirely objective terms, without regard to the appellant’s awareness of any avenues of escape of this kind. Secondly, the objective test is worded too demandingly, in terms of mere possibilities rather than in terms of reasonable possibilities. Thirdly, the judge encouraged the jury to look at the question in terms of hindsight (“No harm apparently has resulted”) rather than prospectively at the time. For all or any of these reasons the jury may have erroneously been led to withdraw the defence of duress on this question alone.

Mr Blair-Gould, on the other hand, submits that the cross-examination to which the judge drew attention in his direction on this third question was relevant to the truth of the appellant’s whole story as to the events of that morning. The judge’s reference to his family coming to no harm was likewise relevant to the underlying truth of his whole account. There was in any event no call for any reference by the judge to “reasonable” possibilities, because on any view the appellant was not an unusually timid man.

We think that the direction on this third question was a misdirection. There never was any suggestion that the appellant could have avoided the effect of the threat against him, assuming one had ever been made, by going to the police or simply refusing to carry out the robbery. On analysis the issues raised under this third question collapse into the issues raised under questions one and two. We therefore think that there is a danger that the jury may have been confused by being asked an additional question on matters already covered by the first two questions. Moreover, the comment that no harm had in the event come to the appellant’s family, even though the robbery was unsuccessful, raised immaterial considerations. The issue on the defence was how matters were or appeared at the time. If later matters are taken into consideration at all, it can only be as a means of checking the position at the relevant time. And although the appellant did indeed leave empty-handed, on the Ws’ evidence it was plainly not for want of trying.

We will again leave the importance of this misdirection on the question of safety for consideration after dealing with the fourth ground.

The judge directed the jury on the fourth question as follows:

“Question 4: Did the defendant voluntarily put himself in the position, in which he knew he was likely to be subjected to threats? You look to judge that in all the circumstances. If he had stopped associating with [X] after the August 1999 incident, would he have ever found himself in this predicament?

It is for you to decide. It is right to say he says that he did stop associating with but [X] kept finding him. It may not be wholly straightforward. It is for you to consider and it is a relevant consideration because if someone voluntarily associates with the sort of people who he knows are likely to put pressure on him, then he cannot really complain, if he find himself under pressure. If you are sure that he did voluntarily put himself in such a position, the defence fails and he was guilty. If you are not sure and you have not been sure about all the other questions, then you would find him not guilty.”

Mr McNulty submits that this was also a misdirection, and further, that the question should never have been left to the jury at all. It should never have been left to the jury, because there was no evidence of voluntary association with a criminal in any relevant sense of that concept. It was a misdirection because, even if there was relevant voluntary association, the judge omitted to direct the jury that the association had to be in circumstances where the appellant could foresee that he would be likely to be subject to threats to commit, not merely any kind of crime, but crimes of the kind in question, here aggravated burglary.

Logically, the submission that there was no evidence to justify the fourth question comes first. For this purpose Mr McNulty laid stress upon the following. It was not any kind of voluntary association with a criminal that is relevant. A barrister voluntarily associates with criminals for the purposes of defending them, but he does not thereby come under any obligation to them. A woman may have a violent man as a partner, but that is not enough for voluntary association such as will deprive her in case of need of a defence of duress. The appellant had no dealings with X other than in the context of Y’s business, and even in that context it was X who joined Y rather than the appellant who joined X. Thus, when X came on the scene, the appellant left. After that, it was X who pursued the appellant.

We do not agree with this submission. The appellant was Y’s minder and driver, knowing that she operated a prostitution racket. Such organised rackets are rarely far away from violence and general criminality. It is in this context that X himself comes on the scene, and for a while the three are part of the same organisation. There was evidence that X had a reputation for violence and for dealing in drugs. The judge’s directions were discussed with counsel in advance and Mr McNulty frankly accepted that there was no submission to the judge that the fourth question simply did not arise: the issue was rather whether the appellant’s evidence of attempted dissociation relieved him of the bite of this fourth question – and that issue was left to the jury. In that connection, see R v. Baker and Ward [1999] 2 Cr App Rep 335 at 346D/E.

We turn then to Mr McNulty’s alternative submission that the vice of such voluntary association is that it renders the defendant liable to pressure to commit a crime of the relevant degree of seriousness. The judge merely said “with the sort of people who he knows are likely to put pressure on him”, without further diagnosing the criminality involved. Mr McNulty points out that the model Judicial Studies Board direction operative at the time of trial and now refers to this issue at two points, for it reads:

“Did the defendant voluntarily put himself in a position in which, as he knew, he was likely to be subjected to threats of the kind I have referred to. This situation might arise where a person [joins a criminal group likely to bring pressure on him to commit an offence and/or involves himself in criminal activities which bring him into contact with other criminals likely to subject him to such threats]…” (emphasis added).

Mr McNulty submits that the phrases emphasised are designed to limit the scope of the direction accordingly.

In this connection, the model direction has been drafted with this court’s decision in Baker and Ward in mind; but, as Mr Blair-Gould points out, authority is divided on this issue. In Baker and Ward the appellants had robbed a superstore with an imitation pistol: their defence was that, having involved themselves in dealing in cannabis, they had failed to pay for a supply which they bought for £10,000: this had led to threats (and the infliction) of violence which had compelled them to carry out the robbery on orders. The judge directed the jury in respect of voluntary association, but was later faced with the direct question from the jury:

“If the defendant joined a criminal group involved in trading in illegal drugs, can they say that they did not voluntarily join a criminal group which might involve them in armed robbery?” (at 342B).

In responding to the question the judge spoke of joining a criminal group which a defendant was aware might “require him if necessary to commit offences to obtain money” (at 343E). Roch LJ, giving the judgment of this court, said that that was a misdirection (at 344C):

“What a defendant has to be aware of is the risk that the group might try to coerce him into committing criminal offences of the type for which he is being tried by the use of violence or threats of violence. We have concluded that these additions to the judge’s original direction on this aspect of the case (the original direction closely following the Judicial Studies Board’s Model Direction) turned his direction into a misdirection” (emphasis added).

Roch LJ repeated this point at 346C:

“The purpose of the pressure has to be to coerce the accused into committing a criminal offence of the type for which he is being tried.”

That was not the only misdirection found on that appeal, which was allowed.

In R v. Heath [2000] Crim LR 109, however, this court rejected a submission based on Baker and Ward that the accused had to be aware that he might be subjected to pressure to commit an offence of the type of which he was accused. The appellant was a heroin user who owed £1500 to his supplier. He was threatened, and agreed to be a courier of “shampoo”. He changed his plea to guilty after the trial judge had ruled that the defence of duress was not open to him. The judgment is not adequately reported for present purposes at the citation given above, but we were provided with the full transcript (Case No: 98/7230/Z2, 7 October 1999). Kennedy LJ declined to accept the passages cited above as a “free-standing statement of the law” and added:

“It is the awareness of the risk of compulsion which matters. Prior awareness of what criminal activity those exercising compulsion may offer as a possible alternative to violence is irrelevant.”

Kennedy LJ went on to say, under the heading of “Conclusion”, that the defence of duress did not run “because, as he recognised, by becoming indebted to a drug supplier (a voluntary act) he exposed himself to unlawful violence”.

Heath was followed when the issue came up again in R v. Harmer [2002] 2 Crim LR 401, on almost identical facts. It was accepted that the addict anticipated violence if he did not pay his supplier, but not that he could foresee being compelled to participate in crime, a submission based on Professor Sir John Smith QC’s commentary in the Criminal Law Review on Heath. Again we have the benefit of the full transcript [2001] EWCA Crim 2930 (12 December 2001). May LJ rejected the submission, saying –

“17.

In our view, in this case, as in the case of Heath, the appellant “could not rely on the threats, claiming them as an excuse for his criminal conduct, because he recognised by becoming indebted to a drugs supplier, a voluntary act, he exposed himself to unlawful violence”. That is enough to exclude reliance on duress. The fact that he did not foresee that he might be required under the threat of violence to commit crimes is in our view irrelevant.”

Thus, on the basis of Heath and Harmer, not only is it unnecessary to foresee the type of crime which an accused might be put under duress to commit, but it is not even necessary to anticipate pressure to commit any crimes, as long as the threat of unlawful violence could be anticipated.

We agree with the comment in Archbold at para 17-126 that the reasoning in Heath, that Baker and Ward did not intend to lay down a general statement of law, is “open to question”. In our judgment the passages cited above are part of the ratio of Baker and Ward. We are therefore faced with inconsistent decisions of this court, and must make up our mind which to adopt.

The issues are well illustrated by the commentary of Professor Sir John Smith QC on Harmer at 402:

“The Law Commission Working Paper No. 55 (1974) stated what the Commission took to be the correct principle very clearly:

“The defence should not be available where the defendant has joined an association or conspiracy which was of such a character that he was aware that he might be compelled to participate in an offence of the type with which he is threatened”. [J.C.S.’s italics]”

Subsequent Law Commission drafts in Reports No. 143 (1985) and No. 177 (1989) state the law less fully but to the same effect, indicating that the comments received by the Commissioners had given them no grounds for changing their opinion. Heath did not accept that the offence which the defendant must have foreseen that he might be required to commit was an offence of the type with which he was charged but that was as far as the decision went. There is a great difference between joining a terrorist organisation, the purpose of which is the commission of violent crime, and becoming indebted to drug dealers who are known to use violence to collect their debts. In both cases the joiner may know that he may be subjected to compulsion, but compulsion to pay one’s debts is one thing, compulsion to commit crime is quite another – and it is the latter which is in issue here. Such a distinction would not be unprincipled, but might be excluded as a matter of policy.”

Given this conflict we have considered some of the earlier authorities. In R v. Lynch [1975] AC 653 at 679B Lord Wilberforce spoke about –

“whether the appellant had voluntarily exposed himself to a situation in which threats might be used against him if he did not participate in a criminal enterprise”.

That suggests that there must be anticipation not only of threats but of their direction at compelling participation in crime. The passage was cited by Lowry LCJ in R v. Fitzpatrick [1977] NI 20 at 28C. Lowry LCJ had already quoted from the Law Commission’s Working Paper No 55 (from which Professor Sir John Smith quoted above) as follows (at 26B):

“we do not consider it to be an objection of substance to the proviso that, while aware that the association he had joined was prepared to commit criminal offences, the defendant had not anticipated the particular kind of offence which was in fact committed. On balance, therefore, we favour a limitation upon the defence which would exclude its availability where the defendant had joined an association or conspiracy which was of such a character that he was aware that he might be compelled to participate in offences of the type with which he is charged.”

Lord Lowry concluded by formulating a rule in these terms (at 33A):

“This court is satisfied that there are circumstances in which persons who associate with violent criminals and voluntarily expose themselves to the risk of compulsion to commit criminal acts cannot according to the common law avail themselves of the defence of duress” (emphasis added).

Lynch and Fitzpatrick were again considered in the judgment of Lord Lane CJ in R v. Sharp [1987] QB 853, a decision of this court. Lord Lane concluded in these terms (at 861G):

“In other words, in our judgment, where a person has voluntarily, and with knowledge of its nature, joined a criminal organisation or gang which he knew might bring pressure on him to commit an offence and was an active member when he was put under such pressure, he cannot avail himself of the defence of duress” (emphasis added).

On the other hand, in Heath Kennedy LJ relied on this sentence from the speech of Lord Edmund Davies in Lynch (itself cited in Baker and Ward):

“If a man chooses to expose and still more if he chooses to submit himself to illegal compulsion it may not operate even in mitigation of punishment…”

We do not, however, think that Lord Edmund Davies was there rejecting the notion that the compulsion had to bear on criminality, for he went on immediately to say (at 39) –

“It would surely be monstrous to mitigate the punishment of a murderer on the ground that he was a member of a secret society by which he would have been assassinated if he had not committed murder.”

Similarly, in Harmer May LJ relied (at para 8) on the fact that in Sheppard (1988) 86 Cr App R 47 the following ruling of the trial judge in Sharp was approved, viz “that the defence of duress is not available to an accused who voluntarily exposes and submits himself to illegal compulsion” (see the judgment of Mustill LJ at 51/52). However, the actual decision in Shepherd was to quash the conviction on the ground that the trial judge had erred in withdrawing the defence of duress from the jury. Moreover, it is clear from Sharp that Lord Lane had not regarded the ruling at Sharp’s trial as so expressed (see Sharp at 856E/G), for he glossed it as follows:

“(b)

the defence of duress is not available to a man who has voluntarily joined an organisation or a gang which he knows might compel him to commit serious crimes similar to those with which he is charged…namely, that duress is not available to a man who, to put it briefly, has the necessary knowledge, and with the necessary knowledge joins the gang of miscreants.”

That is no doubt why Lord Lane concluded his judgment in the terms cited in para 68 above. It follows that those terms cannot be divorced from Lord Lane’s earlier statement of his understanding of the trial judge’s ruling.

We are therefore of the view that the balance of authority is in favour of the direction approved by Lord Lane in Sharp and by the Law Commission in the passage cited in Lynch, namely that there must be anticipation of pressure to commit a crime of the type charged. We also think that principle is in favour of that approach, as reflected, for instance in the law of joint enterprise. We do not think that an anticipation of compulsion by threats in the abstract, unconnected with a view to the commission of crime, is principled or indeed realistic. What is the compulsion needed for? It is hard to think that in practice it is unrelated to crime, but if that is possible, it merely emphasises the need for a relation to exist if the defence is to make sense. Once the relevant threats are threats to commit crime, the question then becomes, what kind or level of crime? There is no reason in principle, although policy could, we suppose, take a harsher view, why an adherent of a gang of pickpockets, who could, let us suppose, anticipate threats of violence to compel him to continue in his role as a pickpocket, should only for that reason lose his defence of duress if, unexpectedly, he were compelled by threats to carry out, say, armed robbery. The authorities which discuss the defence of duress are replete with references to the distinctions which might have to be made in the context of that defence between lesser crimes and crimes of increasing seriousness. For instance, it has now been established, but not without difficulty, that duress cannot be a defence to murder: see Lynch, R v Abbott [1977] AC 755, 63 Cr App R 241, R v Howe [1987] AC 417, 85 Cr App R 32.

We therefore think that a direction on the question of voluntary association should refer to threats to commit a crime “of the type charged”. We do not, however, intend that those words should be treated as though they were part of a statute. They are intended to direct the jury’s attention to the issue whether the accused anticipated that association with criminals could link him, even against his will, with criminality of the seriousness with which he is charged.

In the present case the appellant would have wished the jury to consider an argument that whatever his adherence to Y’s prostitution racket, or even in that connection his association with X, might lay him open to did not include aggravated burglary. In that connection, his acquittal on count one might well have assisted him.

There remains an argument of principle, or perhaps policy, that the rule should not be expressed in terms of the accused’s subjective anticipation but in objective terms of what a reasonable person in the position of the accused should have anticipated. That debate would require still more detailed examination of the authorities, which we think is not necessary in the present case.

It may be, of course, that those who associate with drug dealers, especially those who deal themselves (as in Baker and Ward), do subjectively or ought objectively to realise that in case of their defaulting on their obligations they will come under pressure from highly criminalised gangs to commit serious crime, and especially drug crime. X was reputed to be a drug dealer, but it was not in that connection that the appellant had any real association with him (although there was some evidence that he may have been supplied with small quantities of crack cocaine by Y and/or X).

We therefore think that there was a misdirection in the judge’s formulation of question four and that he should have directed the jury to consider whether the appellant knew that he was likely to be subjected to threats to commit a crime of the type of which he was charged.

Following this examination of the appellant’s four grounds, we conclude by considering the question of the safety of his conviction. We have found that there was an error of law under ground two and misdirections under grounds three and four. The prosecution’s case was of course a strong one, since the actus reus was admitted, and the only defence was that of duress, in respect of which the prosecution needed to succeed in respect of only any one of the relevant questions for the jury’s consideration. It is quite possible that the jury convicted on the basis of question one by itself, on the basis that they were satisfied that the whole defence was a concoction: in which case questions three and four became irrelevant. Moreover, much of the sting of the admission of cross-examination and rebuttal evidence relating to the officer’s report may have been removed by the manner in which the judge summed up the evidence of the police officers.

Nevertheless, we think that the combination of these errors renders the conviction unsafe. As for ground two, the prosecution’s reliance on the officer’s report went to the heart of the defence, for if X only spoke of the body in the boot after 24 January 2000, then the defence became incoherent and could not succeed. As for ground three, we think that the judge’s third question and the way in which it was developed must have been confusing to the jury. And as for ground four, the appellant was entitled to have his defence put to the jury on the basis that he could not have anticipated threats to compel him to so serious a crime as aggravated burglary. The jury might well have considered the defence as a whole to be unrealistic, especially as the evidence of the presence of the “black man” outside the Ws’ home that morning was thin. Nevertheless, there were at least two features of this case which in this connection were much in the appellant’s favour. One is that the jury acquitted him on count one, which shows that in at any rate this respect his credibility received a measure of support from the jury. The other is that there really was a body in the boot of the Rover, which led in due course to the indictment of X for murder: in that respect his acquittal on that indictment lay in the future.

For these reasons, we conclude that the appellant’s conviction on the second count of his indictment is unsafe and accordingly this appeal has been allowed and the conviction quashed. It is unnecessary therefore to deal with his appeal against sentence.