Hasan, R v

The House considered two principal issues: the meaning of "confession" for the purposes of section 76(1) of the Police and Criminal Evidence Act 1984 and the circumstances in which the defence of duress is excluded by a defendant's voluntary association with criminals. The court held that a statement which is wholly exculpatory or neutral at the time it was made is not a "confession" within section 76(1) read with section 82(1); such statements remain subject to the general fairness discretion under section 78. The House also held that the defence of duress is excluded where the accused, by voluntary association with others engaged in criminal activity, foresaw or ought reasonably to have foreseen the risk of being subjected to compulsion by threats of violence; the test of foresight is to be objective (what he ought reasonably to have foreseen).

The court therefore concluded that the Court of Appeal had erred in its treatment of both issues: it had wrongly extended the scope of section 76(1) to cover wholly exculpatory statements and it had misapplied precedent on voluntary association (notably Baker and Ward). The Crown's appeal was allowed, the Court of Appeal's order was set aside, the defendant's conviction was restored and the matter was remitted to the Court of Appeal for further procedural steps.

Background and facts:

• The defendant worked for Claire Taeger and had dealings with a violent associate, Frank Sullivan. Two aggravated burglaries at the same address (29 August 1999 and 23 January 2000) were charged. The defendant was acquitted on the first count and convicted on the second. Evidence included a confidential, off-the-record police report of a meeting with the defendant made in the context of an unrelated murder inquiry.
• Procedural posture: the defendant appealed. The Court of Appeal quashed the conviction, finding (a) that the confidential statement was a "confession" within section 76 of PACE and (b) there had been misdirections on the law of duress in relation to voluntary association. The Crown appealed to the House of Lords on both issues.

Nature of the appeal and issues before the House:

• (i) Whether a statement intended by its maker to be exculpatory or neutral, but which later proves damaging at trial, falls within the statutory definition of "confession" in section 76(1) read with section 82(1) of PACE; and whether the Court of Appeal was correct to interpret those provisions compatibly with the European Convention on Human Rights via section 3 of the Human Rights Act 1998.
• (ii) Whether the defence of duress is excluded where the accused voluntarily associated with others and (a) foresaw (or should have foreseen) the risk of any compulsion by threats of violence, or (b) only where he foresaw (or should have foreseen) the risk of compulsion to commit offences of the same type as charged; and whether the foresight is to be judged subjectively or objectively.

Court's reasoning and conclusions:

• On confessions: the House analysed the statutory text and legislative history of PACE and affirmed the approach in Sat-Bhambra and Park that section 82(1) extends the ordinary meaning of "confession" to include partly adverse or "mixed" statements but does not sweep in statements which are exculpatory or neutral on their face when made. Such statements may become damaging later but are not confessions under section 76; they remain amenable to exclusion under the broad fairness discretion in section 78. The Court of Appeal’s reliance on Saunders v UK and section 3 of the Human Rights Act was rejected as inapt in the PACE context.
• On duress: the House reviewed common-law limitations of the defence (immediacy, threat to life/serious injury, directed at defendant or close persons, requirement that no reasonable evasive action was available, and exclusion where the defendant voluntarily exposed himself to the risk). The court held that where a defendant voluntarily associates with known criminals he cannot rely on duress if he foresaw or ought reasonably to have foreseen the risk of being subjected to compulsion by threats of violence; the appropriate test of foresight is objective. The Baker and Ward gloss requiring foresight only of compulsion to commit offences of the same type was rejected as wrongly stated.

Relief sought and disposition: the Crown sought to restore the conviction and have the certified questions answered. The House allowed the Crown's appeal, answered the certified questions in favour of the Crown as above, restored the conviction and remitted for the defendant to surrender to bail.

This was an appeal by the Crown which the House allowed. The House held (1) that a statement which is wholly exculpatory or neutral when made is not a "confession" within section 76(1) of the Police and Criminal Evidence Act 1984 read with section 82(1); such statements may nonetheless be excluded under section 78 if their admission would render proceedings unfair, and (2) that the defence of duress is excluded where, by voluntary association with others engaged in criminal activity, the accused foresaw or ought reasonably to have foreseen the risk of being subjected to compulsion by threats of violence (the foresight being judged objectively). On these bases the Court of Appeal was wrong to quash the conviction; the conviction was restored and the appeal remitted for procedural completion.

Trial at the Central Criminal Court (Old Bailey): defendant convicted on second count (aggravated burglary). Appeal to the Court of Appeal (Criminal Division) ([2003] EWCA Crim 191; reported sub nom R v Z [2003] 1 WLR 1489) — conviction quashed on grounds including that a confidential statement was a 'confession' under PACE and alleged misdirections on duress. Crown appealed to the House of Lords — [2005] UKHL 22 (this judgment).