Dhorajiwala, R. v

A responsible advocate’s statement, founded on documents or a proof of evidence, that a confession was or may have been obtained by oppression or by conduct likely to make it unreliable is a representation for the purposes of Police and Criminal Evidence Act 1984, section 76(2).

Where that representation raises a reasonable argument under either limb of section 76(2), the allegations require evidential investigation on a voir dire. The court may require the prosecution to discharge its burden under section 76(3), even where neither party requests evidence. A confession cannot be admitted unless the prosecution proves beyond reasonable doubt that it was not obtained by the prohibited means.

The appellant, a pharmacist and shop manager, was convicted in the Crown Court at Reading of seven counts of theft. The prosecution alleged that she had taken cash from sales which were not entered on the till. It relied substantially on admissions made during an interview conducted by two private investigators.

The appellant alleged that the interview was threatening, that she could not leave the small room, and that she had no access to legal advice. The trial judge admitted the interview without hearing evidence on a voir dire. The central issue on appeal was whether the judge should have required the prosecution to prove that the confession had not been obtained by oppression or by conduct likely to render it unreliable under section 76 of the Police and Criminal Evidence Act 1984.

1. Appeal allowed. The conviction was unsafe and was quashed.

2. A statement by responsible counsel, based on documents or a proof of evidence held when made, that a confession was or may have been obtained by oppression or reliability-damaging conduct amounts to a representation under section 76(2) of the Police and Criminal Evidence Act 1984. Counsel’s submissions for the appellant therefore engaged the statutory burden on the prosecution.

3. The judge had heard submissions but no evidence. He must consequently have concluded that the allegations disclosed no reasonable argument under either limb of section 76(2). That conclusion was wrong. The appellant’s allegations that she had been prevented from leaving, denied legal advice, told that prison was the consequence, and interviewed in a threatening manner were capable of raising issues of oppression and unreliability.

4. The court applied the approach in R v Fuller [1987] 1 QB 426. Although section 76(8) indicates serious forms of oppression, oppression bears its ordinary meaning and ordinarily involves impropriety by an interrogator. Section 76(2)(b) has wider reach and may apply even without such impropriety.

5. Those allegations had to be tested on a voir dire. Under section 76(3), the judge had power to require the prosecution to prove that the confession was not obtained in either prohibited way; on these facts, that power should have been exercised. Without evidence, the judge could not properly be satisfied beyond reasonable doubt that the prosecution had discharged its burden.

6. The interview was powerful evidence. Its erroneous admission materially undermined the fairness of the trial. The court did not determine whether the private investigators were subject to the PACE Codes or whether section 78 required exclusion, because evidence of their terms of employment was absent.

• Court of Appeal (Criminal Division) — Allowed the appeal against conviction and quashed the convictions: [2010] EWCA Crim 1237.

• Crown Court at Reading — The appellant was convicted by a jury of seven counts of theft. Judge Risius admitted the private-investigator interview and imposed concurrent suspended sentences, compensation and prosecution costs orders.