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Cite as: [1998] UKPC 49, [1999] 2 WLR 552, [1999] 2 AC 111

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Mohammed v. The State (Trinidad and Tobago) [1998] UKPC 49 (9th December, 1998)

Privy Council Appeal No. 29 of 1998

Allie Mohammed Appellant

The State Respondent

FROM

THE COURT OF APPEAL OF

TRINIDAD AND TOBAGO

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JUDGMENT OF THE LORDS OF THE JUDICIAL

COMMITTEE OF THE PRIVY COUNCIL,

Delivered the 9th December 1998

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Present at the hearing:-

Lord Steyn

Lord Hutton

Lord Hobhouse of Woodborough

Lord Millett

Sir Patrick Russell

·[Delivered by Lord Steyn]

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1. At 7.30 p.m., on Saturday, 6th December 1986, Surindra Maraj was shot in his motor car outside his brother’s house in Gray Street, Port of Spain. He died. On 7th December 1986 the police charged the appellant, Imran Ali, Raffick Mohammed and Roger Huggins with the murder. On 12th April 1989 a jury convicted all four men of murder and the judge sentenced them to death. On 1st December 1992 the Court of Appeal allowed the appeal and ordered a retrial. In 1993 a judge ordered the appellant to be tried separately from his three co-defendants. In June 1994 the three co-accused were tried. The judge directed them to be acquitted on a submission of no case to answer. On 27th March 1995 the appellant’s retrial began. After an 8-day trial the jury convicted the appellant of murder. The judge sentenced him to death. The difference in the fate of the appellant and the three co-accused is explained by the fact that a confession was admitted in evidence against the appellant but was not admissible against the co-accused.

2. The appellant appealed to the Court of Appeal on several grounds. The Court of Appeal dismissed the appeal. The appellant now appeals with special leave from the decision of the Court of Appeal.

PROSECUTION CASE:

3. The prosecution relied on the eye-witness evidence of two police officers. At about 6.30 p.m. on the evening of the murder they followed a car with registration no. PX 1797 driven by the appellant in which Imran Ali was a passenger. They drove from the appellant’s home to the lookout at Lady Young Road. There Imran Ali transferred to another car with registration no. PAS 6466 in which there were two men identified by the police officers as Raffick Mohammed and Roger Huggins. Both cars left the scene. The police officers followed PAS 6466 but lost it in traffic. The murder occurred shortly afterwards and a short distance away. Another witness testified that at about 7.30 p.m. when he was collecting his sister on Gray Street, he saw a car with registration no. PAS 6466 drive past his car and shots were fired from that car into another car. He followed PAS 6466 for a short distance. He then returned to the scene where he found Surindra Maraj slumped over the steering wheel. This was the state of the evidence against the three co-accused. They were apparently acquitted on the ground that there was no one able to give direct evidence that the same three men were still in the car when the shots were fired from it into the other car.

4. The appellant became aware that the police were looking for him in connection of the murder of Surindra Maraj. At about midday on Sunday, 7th December 1986, he voluntarily went to the police station. When he was asked about the murder the appellant said that for the whole of the night of 6th December 1986 he was “pulling bull” with his car, i.e. he was working as a taxi driver. Between 1.00 p.m. and 3.00 p.m. on the same day the appellant made and signed a written statement. This statement was largely exculpatory: the appellant still said that he had been driving his taxi during the evening of 6th December. He did, however, also say that at about 7.30 p.m. on 6th December he left his home and that he was driving his car PX 1797. There was no objection to the admission of this statement.

5. On the next day Inspector Bastien, who had taken the first statement, went to see the appellant and told him that his statement was untrue so far as he said that he was driving his taxi in the early hours of the evening in question. Inspector Bastien cautioned the appellant and told him that he wanted the truth. Inspector Bastien did not inform the appellant that he was entitled to legal advice. Instead Inspector Bastien proceeded to question the appellant and took a statement from him. A Justice of the Peace authenticated the statement. In his second statement the appellant said that Maraj was the victim of a kidnapping not long before. He explained that the motive for killing the deceased was to prevent him giving evidence against three brothers of Imran Ali who had been charged with the kidnapping. He said that he drove Imran Ali to the lookout for a rendezvous with the hired gunman and waited for Imran Ali nearby while the deed was being done and drove him home afterwards. In other words, if admissible, the statement showed that the appellant was privy to the plan to murder and acted (albeit reluctantly as he insisted) as the get-a-way driver. The defence objected to the admission of the second statement. The grounds of objection were that the statement was not free and voluntary, that it was obtained by oppression, and that it was obtained in breach of the appellant’s constitutional rights. After a voir dire in the presence of the jury, at the request of the defence, the judge in the exercise of his discretion admitted the statement.

THE DEFENCE CASE:

6. The appellant gave sworn evidence, consistent with his first statement, that on the night in question he was working as a taxi driver. He denied dropping off Imran Ali at the lookout point. He denied being involved in a plan to kill the deceased. He said he made the second statement because he was very tired and because he had been told by the police that if he made a statement he could go home.

The prosecutor’s speech:

7. Counsel for the appellant elected not to make a speech to the jury. Nevertheless Mr. E. Welch, counsel for the prosecution, with the approval of the judge, made a lengthy speech to the jury urging the jury in emotive language to convict the appellant.

The summing up, the retirement of the jury and the verdict:

8. The judge gave detailed directions of law and placed the issues of fact, and the cases for the State and the defence, before the jury. Having reviewed the evidence of the police observations and the second statement, the judge summarised the position as follows:-

“You decide what, in the circumstances what weight you will give to it, if any, but unless you are prepared to act on that second statement it seems to me that the case for the Prosecution falls to the ground and you must acquit the accused because there is no other evidence to prove the journey to the lookout on to the Lady Young Road; the journey to the QRC; the entry of Imran into that vehicle at sometime 7.30 ish or thereabout at a time when on the evidence the incident on Gray Street would have been completed.”

9. The judge duly completed his summing up. The jury retired for a period of three hours. Upon their return to court they delivered a unanimous verdict of guilty of murder.

The judgment of the Court of Appeal:

10. Concentrating only on the grounds which are being pursued on the present appeal, the effect of the careful judgment of M. de la Bastide C.J. can be summarised as follows: (1) The police obtained the second statement in breach of the appellant’s constitutional rights because the police had not informed the appellant of his right to communicate with a lawyer. But the judge had a discretion to admit the statement. He had not erred in doing so. (2) The trial judge had wrongly permitted prosecution counsel to address the jury. Moreover, the Chief Justice observed that the speech “infringed the cardinal rule that prosecuting counsel must not unduly press for a [conviction]”. It amounted to an irregularity. But the Court of Appeal held that once the appellant’s second statement was admitted into evidence, the result was inevitable, with or without an address by the prosecution. The Court of Appeal applied the proviso and dismissed the appeal.

The issues before the Board:

11. The issues arising on this appeal can be considered under three headings. First, there is a ground of appeal in respect of the admission in evidence of the second statement, which was obtained in breach of the appellant’s constitutional rights. This is a point of general importance and will need to be considered in some depth. Secondly, there are several grounds of appeal directed to the correctness of the judge’s summing up. It will be possible to deal with these points quite shortly. Thirdly, it will be necessary to re-examine the impact of the prosecutor’s speech to the jury.

(1) Evidence obtained in breach of a suspect’s constitutional rights.

The Constitutional Right:

12. Given that a breach of the appellant’s constitutional rights is conceded, it is possible to refer to the applicable provisions of the Constitution of Trinidad and Tobago of 1976 quite briefly. The preamble recites that the People of Trinidad and Tobago “recognise that men and institutions remain free only when freedom is founded upon respect for moral and spiritual values and the rule of law” (paragraph (d)) and “desire that their Constitution should … make provision for ensuring the protection in Trinidad and Tobago of fundamental human rights and freedoms” (paragraph (e)).

13. Section 5(2) of the Constitution provides that Parliament may not deprive a person who has been arrested or detained “of the right to retain and instruct without delay a legal adviser of his own choice or to hold communication with him”: see section 5(2)(c)(ii). Section (2) further provides that Parliament may not deprive a person “of the right to such procedural provisions as are necessary for the purpose of giving effect and protection to the aforesaid rights and freedoms”: see section 5(2)(h). In Attorney-General of Trinidad and Tobago v. Whiteman [1992] 2 A.C. 240 the Privy Council considered the effect of section 5(2)(h) upon the right contained in section 5(2)(c)(ii). Lord Keith of Kinkel observed at page 248:-

“… persons who have been arrested or detained have a constitutional right to be informed of their right to communicate with a legal adviser both upon a proper construction of section 5(2)(h) of the Constitution of 1976 and on the basis of a settled practice existing when that Constitution was introduced. Davis J.A. said towards the end of his judgment in the Court of Appeal:

‘I am not prepared to lay down any general rule as to the precise point in time when a person in custody ought to be informed of this right, but it should be as early as possible, and in any event before any ‘in-custody interrogation’ takes place.’

14. Their Lordships would endorse that.”

15. The only other provision of the Constitution to which their Lordships need to refer is the First Schedule which provides for Forms of Oath (or Affirmation) of Allegiance and of Office. The judicial oath contains inter alia the words “I …. do swear … (solemnly affirm) that I will … uphold the Constitution and the law”.

The judge’s ruling.

16. Before the judge the prosecution conceded that the failure of the police to inform the appellant of his right to communicate with a lawyer amounted to a breach of the appellant’s constitutional rights. The police officers testified on the voir dire. It was not suggested in cross-examination that they deliberately denied the appellant his rights. The judge expressly found as a fact that the breach had occurred accidentally. The judge proceeded on the basis that he had a discretion to exclude the statement. Weighing the public interest against unfairness to the appellant he exercised his discretion in favour of admitting the statement.

The Court of Appeal.

17. In dealing with this ground of appeal the Chief Justice observed that the constitutionality of the right of a person in custody to be informed that he is entitled to communicate with a lawyer was first recognised in Trinidad and Tobago in 1990, that is some years after the statement in the present case was taken: Attorney-General v. Whiteman (1990) 39 W.I.R. 397. The Chief Justice said that it was not a case where the police deliberately and cynically flouted the appellant’s constitutional rights. The Court of Appeal held that the judge had a discretion to admit or exclude the statement and that the judge had not erred in the exercise of his discretion.

The arguments on appeal.

18. On appeal to the Privy Council counsel for the appellant submitted that the judge and the Court of Appeal erred in their approach. First, and in reliance on the well known decision of the United States Supreme Court in Miranda v. Arizona (1966) 384 U.S. 436, counsel for the appellant submitted that the rule is that confession evidence obtained in breach of a suspect’s rights is always inadmissible. If this is correct, the judge should have excluded the confession as soon as it was established that it was preceded by a breach of constitutional rights. Secondly, and by way of an alternative submission, counsel submitted that the rule is that a confession obtained in breach of constitutional rights is prima facie inadmissible and may only be admitted in exceptional circumstances or where there are compelling circumstances for so doing.

The Miranda argument.

19. Counsel for the appellant acknowledged that when the Constitution of Trinidad and Tobago was first enacted in 1962, and when it was replaced by the Constitution of 1976, the rule under English criminal procedure was that where in the process of interrogation the police infringed a suspect’s rights the judge had a discretion to admit or exclude even a voluntary confession. In exercising that discretion the judge had to conduct a balancing exercise, weighing the seriousness of the breach against the public interest. But counsel argued that this practice cannot stand with the constitutional character of the rights which were infringed. For this proposition counsel for the appellant was unable to cite any decision of the Privy Council or the Court of Appeal of Trinidad and Tobago.

20. Counsel further acknowledged that his submission is in conflict with a decision of the Privy Council in King v. The Queen [1969] 1 AC 304. In that case it was established that in searching a suspect the police had acted in breach of the rights guaranteed under the Constitution of Jamaica. The constitutional provision read as follows:-

“Except with his own consent, no person shall be subjected to the search of his person or his property or the entry of others on his property.”

21. The Crown’s case was that the police found drugs on the defendant. The defendant said the drugs were planted on him. The magistrate accepted the evidence of the Crown; he admitted the challenged evidence; and he convicted the defendant. The Court of Appeal dismissed an appeal. After a lengthy review of the authorities Lord Hodson observed (at 319C-G):-

“The appellant relied in support of his submission that the evidence illegally obtained against him should be excluded on the argument that it was obtained in violation of his constitutional rights, and reference was made to an Irish case of The People (A.G.) v. O’Brien, where the point was discussed by the Supreme Court of Eire. The provision of the Jamaican Constitution scheduled to the Jamaica Order in Council, No. 1550 of 1962 (paragraph 19) gives protection to persons against search of persons or property without consent.

22. This constitutional right may or may not be enshrined in a written constitution, but it seems to their Lordships that it matters not whether it depends on such enshrinement or simply upon the common law as it would do in this country. In either event the discretion of the court must be exercised and has not been taken away by the declaration of the right in written form.

23. Having considered the evidence and the submissions advanced, their Lordships hold that there is no ground for interfering with the way in which the discretion has been exercised in this case.

24. This is not in their opinion a case in which evidence has been obtained by conduct of which the Crown ought not to take advantage. If they had thought otherwise they would have excluded the evidence even though tendered for the suppression of crime.”

25. Counsel submitted that this decision was concerned with the discovery of real evidence during an illegal search rather than a confession obtained in breach of a suspect’s rights. That is true. Counsel further pointed out that in the case of a confession obtained in breach of the duty to inform a suspect of his right to legal advice, there is the added factor of the suspect’s right not to incriminate himself. On this ground counsel submitted that King is distinguishable and should not be treated as applicable. In the alternative counsel argued that King was wrongly decided. At present their Lordships are only considering whether, contrary to the Miranda ruling, a trial judge has a discretion to admit a voluntary confession obtained in breach of constitutional rights. On this point, King is highly material. Lord Hodson cited authorities dealing with the judge’s discretion to exclude confessions. And he considered the matter in the context of evidence obtained in breach of a constitutional right. King is therefore weighty authority for the proposition that in such a case a judge has a discretion to exclude or admit the confession. And subsequently in what was admittedly an obiter dictum by Lord Diplock the Privy Council affirmed in Thornhill v. Attorney-General of Trinidad and Tobago [1981] AC 61 at page 68 in respect of a confession obtained after a breach of the defendant’s constitutional right to communicate with his lawyer that only the trial judge (as opposed to a judge hearing a constitutional motion) can rule on the question whether the statement should be admitted in evidence. It is plain that the Privy Council took the view that even in such a case the trial judge has a discretion to admit or exclude a confession. Moreover, their Lordships are satisfied that in regard to the existence of the discretion the observations of Lord Hodson and Lord Diplock were correct. In framing the Constitution of Trinidad and Tobago the legislature was not writing on a blank sheet. Fundamental as the rights of a suspect to communicate with his lawyer are it does not follow that such rights can only be given due recognition by an absolute exclusionary rule such as was enunciated in Miranda. The rigidity of the Miranda rule is underlined by counsel’s concession that, if applicable, it would not permit the judge to read the statement. Whatever the statement contained it would have to be excluded, and that would be so even in the case of a trivial breach. Such an absolute rule does not easily fit into a system based on English criminal procedure. At the time of the enactment of the constitutional guarantees the settled practice in England and Trinidad and Tobago was that the judge had a discretion to admit or exclude a voluntary confession obtained in breach of the Judges’ Rules. In these circumstances their Lordships are satisfied that it would not be right now to hold the judge’s discretion to admit or exclude a confession was entirely abolished by the relevant constitutional provision. Their Lordships therefore reject the argument based on the Miranda decision.

The prima facie rule.

26. Counsel’s alternative submission was backed by formidable principled argument, and by an impressive body of comparative material. Counsel submitted that unless there is at least a prima facie rule against admitting a confession obtained in breach of constitutional rights no or virtually no value would be accorded to the incorporation of those rights in a written constitution. It is a short but important point. For further support of this view counsel cited decisions from a number of jurisdictions. The three most useful sources of authority proved to be Ireland, Canada and New Zealand. The effect of the Irish decisions is that in a case where a constitutional breach is committed “for the purpose of securing a confession”, the confession must be excluded “on that ground alone”: see The People (Director of Public Prosecutions) v. Lynch [1982] I.R. 64, at 79, following The People (Attorney-General) v. O’Brien [1965] I.R. 142 which was cited in King: and compare The People (Director of Public Prosecutions) v. Kenny [1990] 2 I.R. 110. Important as this feature is, the Irish decisions do not establish a general prima facie rule against admitting confessions obtained in breach of a constitutional right. The Canadian position is instructive. Section 10(b) of the Canadian Charter of Rights and Freedoms provides that a detained suspect has the right “to retain and instruct counsel without delay and to be informed of that right”. Section 24(2) of the Charter provides that evidence obtained in breach of its provisions is inadmissible when the admission of the evidence would “bring the administration of justice into disrepute”. Applying these provisions the Supreme Court of Canada has held that the use of self-incriminating evidence obtained following a denial of the right of access to a lawyer “will, generally, go to the very fairness of the trial and should generally be excluded”: Collins v. The Queen (1987) 33 C.C.C. (3d) 1, at 20. But, as counsel for the appellant acknowledged, there is built into the Canadian Charter an express provision dealing with the consequences of a relevant breach of constitutional rights. The New Zealand decisions cited by counsel for the appellant are the most directly relevant. Section 23 of the New Zealand Bill of Rights Act 1990 requires everyone arrested or detained to be informed of his right to consult and instruct a lawyer without delay. Like the Constitution of Trinidad and Tobago the New Zealand Bill of Rights does not contain a provision governing the effect of a breach. In a powerfully reasoned series of decisions the New Zealand Court of Appeal has developed the principle that confessions obtained in breach of section 23 are prima facie inadmissible: Reg v. Goodwin [1993] 2 N.Z.L.R. 153; Reg. v. Te Kira [1993] 3 N.Z.L.R. 257; Reg. v. H. [1994] 2 N.Z.L.R. 143, 150. It has been held that the prima facie rule may be excluded and the evidence admitted where the breach was unconsequential, where there was no real or substantial connection between the breach and the obtaining of the evidence or where the evidence would have been discovered in any event: Reg. v. H., supra, at page 150, per Richardson J. The rationale of the prima facie rule was summarised by Hardie Boys J. in Reg. v. Te Kira, supra, as follows (at 276):-

“The Court’s duty to uphold the rights affirmed by the Act requires it to make an appropriate response where there has been a breach. The response is and should be seen as itself an affirmation, a vindication, of a right that is fundamental to all citizens, and not simply as punishment of the officer for breach or as compensation to the person affected, who may be unworthy of much consideration. Often the only effective way in which the Court can affirm the right is by refusing to recognise or to give effect to what has resulted from it. That may mean rejection or exclusion of a confessional statement. To those who see that as a rogues’ charter, one can only say that it is the price of freedom; that had the police observed the law the evidence would not have been obtained anyway; and that if the law is to be changed that is the function of Parliament, not of the Court.”

27. The thrust of the New Zealand decisions is therefore that only such a prima facie exclusionary rule gives proper effect to the constitutionality of the particular provision.

28. On balance their Lordships have arrived at a view that does not entirely accord with the view which has prevailed in New Zealand. The position needs careful explanation. If there is any dispute about issues of fact affecting an alleged breach of section 5(2) of the Constitution of Trinidad and Tobago the burden of proof rests on the prosecution and the standard of proof is the usual criminal standard, viz. proof beyond a reasonable doubt. An example of such an issue would be the question whether the police deliberately infringed the suspect’s rights. Once the facts have been determined the occasion for the exercise of the judge’s discretion arises. Under the law of Trinidad and Tobago the discretion of the trial judge is neither prima facie exclusionary nor prima facie inclusionary. It is, however, also not a completely open textured discretion. As Lord Hodson made clear in King (at page 315D-E) the judge has to conduct a balancing exercise. On the one hand, the judge has to weigh the interest of the community in securing relevant evidence bearing on the commission of serious crime so that justice can be done. On the other hand, the judge has to weigh the interest of the individual who has been exposed to an illegal invasion of his rights.

29. It will be recalled that in King Lord Hodson observed that it matters not whether the right infringed is enshrined in a constitution or is simply a common law right (or presumably an ordinary statutory right). Their Lordships are satisfied that in King, which was decided in 1968, the Board took too narrow a view on this point. It is a matter of fundamental importance that a right has been considered important enough by the people of Trinidad and Tobago, through their representatives, to be enshrined in their Constitution. The stamp of constitutionality on a citizen’s rights is not meaningless: it is clear testimony that an added value is attached to the protection of the right. The narrow view expressed in King is no longer good law. On the other hand, it is important to bear in mind the nature of a particular constitutional guarantee and the nature of a particular breach. For example, a breach of a defendant’s constitutional right to a fair trial must inevitably result in the conviction being quashed. By contrast the constitutional provision requiring a suspect to be informed of his right to consult a lawyer, although of great importance, is a somewhat lesser right and potential breaches can vary greatly in gravity. In such a case not every breach will result in a confession being excluded. But their Lordships make clear that the fact that there has been a breach of a constitutional right is a cogent factor militating in favour of the exclusion of the confession. In this way the constitutional character of the infringed right is respected and accorded a high value. Nevertheless, the judge must perform a balancing exercise in the context of all the circumstances of the case. Except for one point their Lordships do not propose to speculate on the varying circumstances which may come before the courts. The qualification is that it would generally not be right to admit a confession where the police have deliberately frustrated a suspect’s constitutional rights.

Conclusion on the breach of constitutional rights point.

30. In the present case the judge was entitled to conclude, on unchallenged evidence, that the police had acted in good faith. The judge took into account the competing considerations in exercising his discretion. The Court of Appeal held that the exercise of his discretion on the particular facts of this case was not shown to be flawed. Their Lordships have not been persuaded that the view of the Court of Appeal was wrong.

(2) The alleged misdirections.

31. Counsel submitted that the judge should have given a direction in accordance with Reg. v. Turnbull [1977] Q.B. 224. The judge directed the jury that unless they were prepared to act on the second statement “the case for the prosecution falls to the ground”. In these circumstances the prosecution’s case did not wholly or substantially depend on identification evidence. Moreover, there was nothing unfair in the way in which the judge placed the evidence of police observations before the jury. Their Lordships have not been persuaded that there was any failure to direct the jury properly in respect of the identification evidence. This ground is rejected.

32. Counsel further submitted that because the appellant was relying on an alibi, the judge should have directed the jury on the evidential status of lies in accordance with Reg. v. Lucas (Ruth) [1981] Q.B. 720. Their Lordships are quite satisfied that the judge fairly placed the defence case before the jury. There was no need in this case for a direction on lies. This ground is rejected.

(3) The prosecutor’s closing speech.

33. The defence called no witnesses other than the appellant and waived the right to make a closing speech to the jury. Nevertheless, the judge permitted the prosecutor to make a lengthy closing speech to the jury. Following the decision of the Court of Appeal of Guyana in Director of Public Prosecution’s Reference (No. 1 of 1980) (1980) 29 W.I.R. 94 the Court of Appeal in the present case held that the judge was wrong to permit prosecuting counsel to make a closing speech. Counsel for the prosecution, who did not appear at the trial, accepted the correctness of this ruling of the Court of Appeal. It is therefore unnecessary to review the applicable statutory provisions again. This ground of appeal must be approached on the ground that there was an irregularity.

34. The Chief Justice observed:-

“We also agree with the submission by counsel for the appellant that the nature of the address which counsel for the prosecution made compounded the mischief. I do not propose to examine it in detail, but it was in our view an inappropriate and unbecoming address, both in its style and in its content. Apart from any other criticisms which might be made of it - and there are several - it clearly infringed the cardinal rule that prosecuting counsel must not unduly press for a prosecution. The judge did stop the prosecutor on one or two occasions but still allowed him far too much latitude. We have held that the judge ought not to have allowed him to have addressed at all. The fact that prosecuting counsel chose to take the opportunity which was wrongly given him, suggests that he did not properly appreciate that restraint and detachment should characterise the proper performance of his role. The nature and length of his address confirm this impression.”

35. Recognising that there had been an irregularity, the Chief Justice turned to the proviso in section 44(1) of the Supreme Court of Judicature Act Chap. 4:01. The Chief Justice observed:-

“The test is whether the jury without having heard any address from the prosecution, but with the benefit of a proper summing up by the judge would inevitably have arrived at the same verdict. In our view, once the appellant’s statement was admitted into evidence, that result was inevitable, with or without an address by the prosecution. While the appellant went into the box and contradicted his second statement and maintained the correctness of his earlier exculpatory statement, it is in our view wholly unrealistic to suppose that any reasonable jury might have come to the conclusion on the evidence in this case that the appellant had made up the second statement because of pressure exerted on him by the police, or that that statement was composed by the police themselves who forced the appellant to adopt and sign it.”

36. Counsel for the appellant challenged this conclusion.

37. The prosecutor informed the jury of his view that the appellant was plainly guilty. He made emotional appeals for sympathy for the deceased and his family. He demanded that the jury should not let the appellant “get away with it”. He repeatedly “urged” the jury to convict. His speech contained many inflammatory passages. The prosecutor had commenced his speech by saying “I act as a minister of justice”. The contrary is the case: the prosecutor made a wholly improper speech. The judge’s interventions during the speech were perfunctory. And in his summing up the judge did not direct the jury to disregard the speech. The judge told the jury in general terms not to be swayed by emotion but he said nothing to counteract the prejudice which the speech of the prosecutor was calculated to generate in the minds of the jurors.

38. The Court of Appeal concluded that the speech made no difference to the inevitable outcome. In arriving at this conclusion the Court of Appeal observed that it is unrealistic to suppose that a jury might have accepted that “the appellant had made up the second statement because of pressure exerted on him by the police, or that that statement was composed by the police themselves who forced the appellant to adopt and sign it”. The appellant’s defence was that his initial statement to the police had been correct, and that his second statement was untrue and that he had only made it because of the length of time for which he was detained. It was not part of his defence that the police had fabricated the second statement and made him sign it by force.

39. In any event, there was an issue to be resolved by the jury. And their Lordships are not satisfied that a conviction was a foregone conclusion. The prosecutor clearly thought that there was a risk of an acquittal. Why else would he have taken such elaborate pains to attempt to generate prejudice against the appellant in the minds of the jury? The judge may have regarded a conviction as inevitable because at the end of his summing up the following passage occurs:-

“THE JUDGE: Mr. Foreman, have you and all the Members of the Jury arrived at a verdict upon which you all agree or do you wish to retire to consider your verdict.

THE FOREMAN: We wish to retire.”

40. After this trial took place the Privy Council drew attention to the undesirability of the judge posing such a question: see Crosdale v. The Queen [1995] 1 W.L.R. 864, at 875G-876B. For present purposes the relevance of the passage is that, given a chance not to retire, the jury said they wished to retire. And in a case involving one defendant and relatively few issues the jury then retired for three hours, which in the circumstances and in Trinidad and Tobago is a lengthy retirement for a jury. Even after hearing the prosecutor’s speech the jury may not have found their decision straightforward. In these circumstances their Lordships cannot be satisfied that, if the prosecutor had not made the speech, the jury would inevitably have convicted.

Conclusion.

41. The conviction and sentence are quashed. Given that the murder took place as long ago as 1986 no question of a retrial arises.