B e f o r e :
THE LORD CHIEF JUSTICE OF ENGLAND (Lord Lane)
MR. JUSTICE TAYLOR
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MR. JUSTICE HENRY
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R E G I N A
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RUTH SUSAN FULLING
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(Transcript of the Shorthand Notes of Marten Walsh Cherer Ltd., Pemberton House, East Harding Street, London, EC4A JAS. Telephone Number: 01-583 7635. Shorthand Writers to the Court.)
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MR. N. DAVEY appeared on behalf of the Appellant. ,MR. S. LAWLER appeared on behalf of the Crown.
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THE LORD CHIEF JUSTICE: On 6th August 1986 in the Crown Court at Leeds before Judge Hurwitz and a jury, this appellant was convicted by a majority verdict of ten to two of obtaining property by deception. She faced a further similar count, the trial of which was adjourned. No sentence has yet been passed.
She appeals against conviction by leave of the single Judge.
The facts which gave rise to the charge were these. In September 1981 the appellant claimed some £5,665 from her insurers in respect of what she claimed was a burglary at her flat in Leeds. The insurance company in July 1982 paid her £5,212 in settlement of the claim.
Many months later a man called Turnpenny, an acknowledged criminal, gave to the police a mass of information about the activities of other criminals, which resulted in a large number of people being arrested, among them being this appellant. Turnpenny gave evidence that the appellant had told him that her "burglary" was bogus; that a man called Maddon had committed it; that she knew the whereabouts of the stolen property. She gave him to understand that the idea of the bogus burglary had been initiated by one Drewery, with whom the appellant had been living and with whom she was infatuated. Turnpenny conceded that he had good reasons for wishing to harm Drewery.
As a result of this information the appellant was arrested in the early hours of Friday 12th July 1985. Drewery was arrested at the same time. She was interviewed twice on that day, but exercised her right to say nothing despite persistent questioning by the police. She was interviewed again on the following day, Saturday. The interview was split into two, with a break in between, according to the police of 50 minutes, according to her of about 5 or 10 minutes.
The police witnesses described how, after initially refusing to answer questions, her attitude started to change. One of the officers, Detective Sergeant Beech, said: "You've obviously got a lot on your mind, are you finding it difficult?" "Yes." "Would I be right in saying that you want to talk about this but every bone in your body is telling you you shouldn't?" "Something like that" was the reply. Then came the break already described.
When the interview was resumed, in answer to questions from the officer she admitted a number of offences. Amongst them was the setting up of the bogus burglary: "I approached a man in a pub because I was short of money and asked him if he would break in for me." She admitted obtaining the money from her insurers. She said that she had spent some of it on a holiday for herself and Brewery. She expressed her sorrow at having committed the offences and said she felt relieved that she had confessed. She sought, it should be added, to exculpate Drewery.
Thus there were two legs to the prosecution case: Turnpenny's evidence and the police account of her confession. The only corroboration of the former was the latter. The prosecution concede that if the confession goes, then the appeal should be allowed. They would not seek to rely on Turnpenny's uncorroborated evidence.
The only issue in the appeal is whether or not the confession was properly admitted.
A submission was made to the learned Judge that the confession should be ruled inadmissible by virtue of the provisions of section 76 of the Police and Criminal Evidence Act 1984, which 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."
It was represented to the learned Judge that the confession was or might have been obtained by oppression of the appellant within the meaning of subsection (2)(a).
The appellant's evidence on the voir dire as to her reason for making the confession was this. After the break in the final interview one of the police officers, Detective Constable Holliday, told her that Drewery, her lover, had been having for the last three years or so an affair with a woman called Christine Judge. Now Christine Judge was one of the many people who had been arrested as a result of Turnpenny's disclosures. She was in the next cell to the appellant and, said the appellant, Detective Constable Holliday told her so. These revelations, said the appellant, so distressed her that 6he "just couldn't stand being in the cells any longer". Then later in her evidence she said this: "As soon as the matter about Christine came out, Detective Constable Holliday left the room and my head was swimming. I felt numb and after a while I said to Detective Sergeant Beech, 'Is it true?' and he said 'Ronnie shouldn't have said that, he gets a bit carried away. Look Ruth, why don't you make a statement?' "
She said that she knew Drewery had in 1982 had an affair with a woman called Christine. She had before the interview noticed that the cell next door to hers had the name Christine Judge on its door, but said she did not realise that this was the same Christine until the police told her. After she had made her confession she had shouted to Christine to ask her if what the police had told her was true. Up to that point she said she was not particularly expressing her distress, but once she had spoken to Christine she just cried and cried. Later in cross-examination she said, "I agreed to a statement being taken, it was the only way I was going to be released from the cells", but she conceded that she was not suggesting that she had been offered bail in return for a statement.
The officers denied that they had made to her any such revelation as she suggested.
The basis of the submission to the Judge was that the information given to her by the police about Christine amounted to oppression, and that the confession was, or might have been, obtained thereby, and that the prosecution had failed to discharge the burden of proving beyond reasonable doubt that the confession was not so obtained.
In his ruling on the matter the Judge declined to make any express finding of fact as to whether the appellant or the police were correct in their account of events. He was prepared to assume for the purposes of argument that the appellant's version of events was the true one and to judge the matter on that basis. That is the subject of criticism by Mr. Davey, but we think he has no proper ground for complaint on that score.
The material part of the ruling runs as follows: "Bearing in mind that whatever happens to a person who is arrested and questioned is by its very nature oppressive, I am quite satisfied that in section 76(2)(a) of the Police and Criminal Evidence Act, the word oppression means something above and beyond that which is inherently oppressive in police custody and must import some impropriety, some oppression actively applied in an improper manner by the police. I do not find that what was done in this case can be so defined and, in those circumstances, I am satisfied that oppression cannot be made out on the evidence I have heard in the context required by the statutory provision.
"I go on to add simply this, that I have not addressed my mind as to whether or not I believe the police or the defendant on this issue because my ruling is based exclusively upon the basis that, even if I wholly believed the defendant, I do not regard oppression as having been made out. In those circumstances, her confession - if that is the proper term for it - the interview in which she confessed, I rule to be admissible."
Mr. Davey has drawn our attention to a number of authorities on the meaning of "oppression". Lord Justice Sachs in Priestly (Note) (1967) 51 Cr. App. R. 1, said this: ".....to my mind this word [oppression] in the context of the principles under consideration imports something which tends to sap, and has sapped, that free will which must exist before a confession is voluntary ..... the courts are not concerned with ascertaining the precise motive of a particular statement. The question before them is whether the prosecution have shown the statement to be voluntary, whatever the motive may be, and that is always the point to which all arguments must return. To solve it, the court has to look to the questions which I have already mentioned. First, was there in fact something which could properly be styled or might well be oppression? Secondly, did whatever happened in the way of oppression or likely oppression induce the statement in question?"
Prager (1972) 56 Cr. App. E. 151, was another decision on Note (e) to the Judges' Rules 1964, which required that a statement by the defendant before being admitted in evidence must be proved to be "voluntary" in the sense that it has not been obtained by fear of prejudice or hope of advantage or by oppression. At page l6l in the judgment of the Court, delivered by Lord Justice Edmund Davies, appears the following passage:
"As we have already indicated, the criticism directed in the present case against the police is that their interrogation constituted 'oppression'. This word appeared for the first time in the Judges' Rules of 1964, and it closely followed the observation of the Lord Chief Justice (Lord Parker) in Callis v. Gunn (1963) 48 Cr. App. R. 36 at page 40 condemning confessions 'obtained in an oppressive manner'."
Lord Justice Edmund Davies, having cited the relevant passage from Priestly, went on as follows: "In an address to the Bentham Club in 1968, Lord MacDermott described 'oppressive questioning as 'questioning which by its nature, duration, or other attendant circumstances (including the fact of custody) excites hopes (such as the hope of release) or fears, or so affects the mind of the subject that his will crumbles and he speaks when otherwise he would have stayed silent'. We adopt these definitions or descriptions .....".
Director of Public Prosecutions v. Ping Lin (1976) A.C. 574 was again a case in which the question was whether a statement by the defendant was shown to be voluntary. It was held that a trial Judge faced by the problem should approach the task in a common sense way and should ask himself whether the prosecution had proved that the contested statement was voluntary in the sense that it was not obtained by fear of prejudice or hope of advantage excited or held out by a person in authority. Lord Wilberforce, Lord Morris of Borth-y-Gest and Lord Hailsham expressed the opinion that it is not necessary, before a statement is held to be inadmissible because not shown to have been voluntary, that it should be thought or held that there was impropriety in the conduct of the person to whom the statement was made. What has to be considered is whether a statement is shown to have been voluntary rather than one brought about in one of the ways referred to.
Finally Mr. Davey referred us to a judgment of this Court in R. v. Rennie (1982) 74 Cr. App. R. 20.
Mr. Davey submits to us that on the strength of those decisions the basis of the learned Judge's ruling was wrong; in particular when he held that the word "oppression" means something above and beyond that which is inherently oppressive in police custody and must import some impropriety, some oppression actively applied in an improper manner by the police. It is submitted that that flies in the face of the opinions of their Lordships in Director of Public Prosecutions v. Ping Lin.
The point is one of statutory construction. The wording of the 1984 Act does not follow the wording of earlier rules or decisions, nor is it expressed to be a consolidating Act, nor yet to be declaratory of the common law. The preamble runs as follows: "An Act to make further provision in relation to the powers and duties of the police, persons in police detention, criminal evidence, police discipline and complaints against the police; to provide for arrangements for obtaining the views of the community on policing and for a rank of deputy chief constable; to amend the law relating to the Police Federations and Police Forces and Police Cadets in Scotland; and for connected purposes".
It is a codifying Act, and therefore the principles set out in Bank of England v. Vegliano (1891) AC 107 at page 144 apply.
Lord Herschell, having pointed out that the Bills of Exchange Act 1882 which was under consideration was intended to be a codifying Act, said this: "I think the proper course is in the first instance to examine the language of the statute and to ask what is its natural meaning, uninfluenced by any considerations derived from the previous state of the law, and not to start with inquiring how the law previously stood, and then, assuming that it was probably intended to leave it unaltered, to see if the words of the enactment will bear an interpretation in conformity with this view.
"If a statute, intended to embody in a code a particular branch of the law, is to be treated in this fashion, it appears to me that its utility will be almost entirely destroyed, and the very object with which it was enacted will be frustrated. The purpose of such a statute surely was that on any point specifically dealt with by it, the law should be ascertained by interpreting the language used instead of, as before, by roaming over a vast number of authorities in order to discover what the law was, extracting it by a minute critical examination of the prior decisions, dependent upon a knowledge of the exact effect even an obsolete proceeding such as a demurrer to evidence."
Similar observations are to be found in Bristol Tramways Carriage Co. Ltd. v, Fiat Motors Ltd. (1910) 2 KB 831 at page 836 per Cozens-Hardy, M.R.
Section 76(2) of the 1984 Act distinguishes between two different ways in which a confession may be rendered inadmissible: (a) where it has been obtained by oppression; (b) where it has been made in consequence of anything said or done which was likely in the circumstances to render unreliable any confession which might be made by the defendant in consequence thereof. (b) is wider than the old formulation, namely that the confession must be shown to be voluntary in the sense that it was not obtained by fear of prejudice or hope of advantage, excited or held out by a person in authority. It is wide enough to cover some of the circumstances which under the earlier rule were embraced by what seems to us to be the artificially wide definition of oppression approved in Prager.
This in turn leads us to believe 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. We do not think that the Judge was wrong in using that test. What however is abundantly clear is that a confession may be invalidated under section 76(2)(b) where there is no suspicion of impropriety. No reliance was placed on the words of section 76(2)(b) either before the Judge at trial or before this Court. Even if there had been such reliance, we do not consider that the policeman's remark was likely to make unreliable any confession of the appellant's own criminal activities, and she expressly exonerated - or tried to exonerate - her unfaithful lover.
In those circumstances, in the judgment of this Court, the learned Judge was correct to reject the submission made to him under section 76 of the 1984 Act.
The appeal is accordingly dismissed.
