Z, R v

A statement intended to be exculpatory may nevertheless be a confession for Police and Criminal Evidence Act 1984 purposes when, at the time it is tendered, it adversely affects the accused’s case. Where confidentiality induced the statement and the circumstances made its detail likely to be unreliable, the prosecution must prove beyond reasonable doubt that it was not so obtained.

A jury direction on duress must address matters as they appeared at the time. The voluntary-association limitation requires anticipated threats to compel criminality of the type charged, not merely anticipated unlawful violence in the abstract.

Z was convicted at the Central Criminal Court of aggravated burglary arising from a second entry into the home of Mr W. He admitted the burglary but relied on duress, alleging that X had threatened him and his family unless he obtained money from a safe.

At trial, the Crown used an officer’s report of a confidential police interview to challenge the chronology of that account. The judge also gave directions concerning Z’s ability to avoid the threats and his voluntary association with X. Z appealed against conviction on those evidential and duress-direction grounds, and also had leave to appeal against sentence.

1. Appeal allowed; conviction quashed. The combination of an evidential error and two misdirections rendered the conviction unsafe. It was unnecessary to determine the appeal against sentence.

2. The court held that the confidential account was a confession for the purposes of Police and Criminal Evidence Act 1984 section 76. The relevant question was whether it was adverse when the prosecution sought to use it, not merely whether it appeared exculpatory when made. Z had effectively admitted the burglary while advancing duress, and the report was deployed to make that defence chronologically incoherent.

3. The judge should therefore have considered section 76(2). The Crown could not have proved beyond reasonable doubt that the statement had not been obtained in circumstances likely to make it unreliable. Confidentiality induced Z to speak; the usual safeguards analogous to Code C were absent; and the interview concerned X and Y rather than the detailed chronology of Z’s own defence. The report went to the heart of the duress defence and its admission could not safely be cured by the judge’s comments on the police evidence.

4. The direction on whether Z could avoid the threats was erroneous. There was no evidential basis, assuming the threats existed, for a separate inquiry into escape or avoidance. The suggested alternatives of pretended or less vigorous compliance duplicated the subjective and objective questions already applicable to duress. The jury also had to assess the position as it appeared at the time, rather than by hindsight because no harm subsequently came to Z’s family.

5. The voluntary-association direction was also defective. Although there was evidence permitting that issue to be left to the jury, the limitation applies only where the accused anticipated threats compelling criminality of the type charged. Anticipation of violence or pressure in the abstract does not suffice. The court left open whether that anticipation is wholly subjective or should include an objective element.

Orders were made under Contempt of Court Act 1981 section 11 restricting publicity about the officer’s report and Z’s communications with police concerning X and Y.

• Court of Appeal (Criminal Division): allowed Z’s appeal against conviction and quashed the conviction: [2003] EWCA Crim 191.
• Central Criminal Court: HHJ Paget QC and a jury convicted Z of aggravated burglary and imposed nine years’ imprisonment. Z was acquitted on a separate count of aggravated burglary.