Wilding, R. v

Under section 76(2)(b) of the Police and Criminal Evidence Act 1984, the court must ask a hypothetical and fact-specific question: whether an omission, including the absence of an appropriate adult, was likely to make any resulting confession unreliable. The inquiry concerns the protection lost at the time, rather than the apparent reliability of the confession ultimately made.

The actual interview may inform that inquiry, but must not displace it. The absence of police fault does not prevent exclusion. Where a vulnerable suspect lacked a proper understanding of the investigation and of legal rights, and an appropriate adult would probably have led to legal advice and a realistic possibility of no admissions, the confession must be excluded.

The appellant was convicted at Chelmsford County Court of sexual activity with a female child under 16 and received a one-year sentence of imprisonment, suspended for two years. The complainant was unavailable at trial. The appellant’s police interview admissions were therefore the sole evidence against him.

He had maintained that he believed the complainant was 16. He challenged the admission of the interview because of his psychological difficulties and the absence of an appropriate adult. Although a psychologist gave evidence of vulnerability, the trial judge admitted the interview.

On appeal, the appellant relied on section 76(2)(b) of the Police and Criminal Evidence Act 1984. The section 78 ground was not pursued. The central issue was whether the absence of an appropriate adult was likely to have rendered any confession unreliable.

1. Appeal allowed; conviction quashed. The interview should have been excluded under section 76(2)(b) of the Police and Criminal Evidence Act 1984.

2. The court applied R v Gill [2004] EWCA Crim 3245. The statutory inquiry is not whether the actual confession appears reliable. It is whether, in the circumstances at the time, the absence of the protection an appropriate adult would have provided was likely to make any confession unreliable. An omission may constitute the relevant thing said or done for the purposes of the section.

3. The contents and manner of the actual interview could be considered, but only with care. They could not replace the required hypothetical inquiry into whether the appropriate adult’s presence would have made a difference.

4. The appellant was vulnerable within the relevant Code definition. He had intellectual difficulties, limited ability to deal with matters sequentially, susceptibility, and errors when recounting simple details. In the grave context of an arrest on suspicion of rape, he lacked a true understanding of the investigation, its seriousness, and his rights. The absence of police fault was immaterial: the assessment was objective and made after the event.

5. Had an appropriate adult attended, a solicitor would probably have been instructed. Although the later course was necessarily speculative, there was a realistic likelihood that no admissions would have been made. The trial judge had placed excessive weight on the actual interview and insufficient weight on the prior statutory question. The conclusion was confined to the appellant’s particular vulnerability and facts.

• Court of Appeal (Criminal Division): Allowed the appeal against conviction and quashed the conviction: [2010] EWCA Crim 2799.
• County Court at Chelmsford: On 19 February 2010, following trial before His Honour Judge Ball QC, convicted the appellant of sexual activity with a female child under 16. On 29 March 2010, imposed one year’s imprisonment suspended for two years.