Theobald v Nottingham Magistrates' Court

An interview is a confession for the purposes of Police and Criminal Evidence Act 1984 section 76 where it contains statements which are partly adverse to the accused and relevant to an issue in the proceedings, even if it does not admit guilt. Purely exculpatory statements are different. Where admissibility is challenged on reliability grounds, the tribunal must identify what was said or done, decide objectively whether it was likely to render the confession unreliable, and require the prosecution to prove beyond reasonable doubt that the confession was not obtained in consequence. Communications faithfully transmitted by a solicitor may constitute something said or done. The decision was quashed because the magistrate had applied the wrong definition and had not set out the required reliability analysis.

The claimant faced fraud charges arising from alleged VAT carousel transactions. A District Judge ruled that his interview under caution was not a confession and made an alternative finding that it was reliable. He also rejected arguments concerning hearsay, alleged promises by Customs and Excise, and abuse of process.

The claimant sought judicial review of those rulings. The central issues were whether the interview was a confession under section 76 of the Police and Criminal Evidence Act 1984, whether the statutory reliability test had been applied, and whether the factual findings concerning promises were perverse.

1. Interview was a confession. The court held that an interview need not contain an express admission of guilt. Under section 82(1) of the Police and Criminal Evidence Act 1984, a confession includes a statement wholly or partly adverse to its maker. The claimant’s admissions concerning the companies, transaction trail, invoices and his knowledge were relevant to his alleged involvement in the dishonest scheme. The District Judge therefore erred in ruling that the interview was not a confession.
2. Reliability assessment. The court directed the District Judge to apply the three-stage approach identified in Barry [1992] 95 Cr App R 384: identify what was said or done; determine objectively whether it was likely to render the confession unreliable; and require the prosecution to prove beyond reasonable doubt that the confession was not obtained in consequence. The District Judge was required to set out findings on each stage.
3. Solicitor’s communications and burden. Words faithfully transmitted by a solicitor may constitute something said or done for section 76(2)(b). The burden in the section 76 inquiry rested on the prosecution, unlike the burden applicable to the earlier abuse-of-process issue.
4. Other grounds. The authorities R v Sat-Bhambra [1988] Crim App R 55 and Park [1994] 99 Cr App R 270 concerned purely exculpatory statements and did not govern this interview. The hearsay ground did not arise once the interview was held to be a confession. The finding that no promise had been made was not perverse.
5. The decision ruling that the interview was not a confession was quashed. A declaration was granted that it was a confession for section 76 purposes. Admissibility was remitted to the District Judge for reconsideration in accordance with Barry. The committal hearing was directed to recommence on 15 July 2003. There was no order as to costs.

• Nottingham Magistrates' Court: The District Judge ruled that the interview was not a confession, while making an alternative reliability ruling, and rejected the related submissions.
• High Court (Administrative Court): The ruling that the interview was not a confession was quashed. The admissibility issue was remitted for reconsideration.