Shavargo McPhee v The Queen

A confession is admissible only if voluntary. The prosecution must prove that it was not obtained by oppression or rendered unreliable by anything said or done. Separately, under the Evidence Act, the court may exclude evidence where, considering all the circumstances, admission would adversely affect fairness. Breaches of police practice do not automatically require exclusion.

For a detained minor, rights to legal consultation, communication with a parent or guardian, and assistance from an appropriately informed appropriate adult are important safeguards. Unrecorded questioning, failures concerning those safeguards, probable lack of food and inadequate supervision may cumulatively render a confession unreliable and its admission unfair. The appeal was allowed and the question of retrial remitted.

The appellant, aged 17 years and six months when arrested, was convicted of murder committed during an armed robbery. The prosecution case rested principally on an accomplice and oral and written confessions made after about 31 hours in custody. At a voir dire, the trial judge rejected allegations of torture and admitted the confessions.

After proceedings in the Court of Appeal of the Commonwealth of the Bahamas, the appeal to the Board concerned unexplained periods away from the cell, absent interview records, no lawyer, failed attempts to contact the appellant’s mother, no properly informed appropriate adult and probable delay in providing food. The central questions were whether the Crown had proved voluntariness under section 20(2) of the Evidence Act, whether admission was unfair under section 178, and whether the conviction could be saved by the proviso.

Disposition. The Board allowed the appeal against conviction. The question whether a retrial should be ordered was remitted to the Court of Appeal.

1. Voluntariness and fairness. Under section 20(2) of the Evidence Act, a confession is inadmissible if obtained by oppression or rendered unreliable by anything said or done. The Crown bears the relevant burden. Section 178 creates a separate fairness jurisdiction. As explained in Peart v The Queen [2006] UKPC 5, breach of proper practice does not automatically require exclusion; the court must consider all the circumstances, particularly the gravity of the breach and its consequences.
2. Safeguards for minors. Section 19(2) of the Constitution of the Bahamas entitled the appellant to consult a lawyer and, as a person under 18, to a reasonable opportunity to communicate with his parent or guardian. The police were not required to obtain a lawyer where no request had been made. However, after failed attempts to contact the mother, the appellant should at least have been told and alternative means considered. The additional duty in paragraph 20 of the Police Force Standing Orders was also breached. An appropriate adult is not merely an observer. The role includes advising the suspect, observing whether questioning is proper and fair, and facilitating communication, as recognised in Rolle v The Attorney General [2012] 2 BHS J No 42. The Bishop had not been informed of that role.
3. Unrecorded interviews and cumulative effect. Paragraphs 60–61 of the Police Force Standing Orders required all suspect interviews to be recorded contemporaneously where possible, or otherwise summarised accurately and promptly. The unexplained periods during which the appellant was removed from his cell, combined with the likelihood that investigators would have questioned him before the recorded confession, inevitably indicated unrecorded interviews. That deficiency made their significance impossible to assess. Combined with the uninformed appropriate adult, probable lack of food and failures concerning parental contact, the circumstances meant that the Crown could not prove that the confession was reliable under section 20(2)(b). In any event, admission was unfair under section 178 and the confession should have been excluded.
4. The proviso. The conviction could not be regarded as inevitable without the confession. The remaining case depended principally on accomplice evidence, given late and requiring the appropriate warning, and there was no eyewitness identification. The proviso therefore could not save the conviction.
5. Additional grounds. The observations that an obvious alternative verdict must be left to the jury, even if not advanced by the defendant, were unnecessary to the decision and applied the approach in R v Coutts [2006] UKHL 39 and Von Starck v The Queen [2000] 1 WLR 1270. On the confession as described, manslaughter was not an obvious alternative. The Board also agreed that, had the case been presented at trial in its current form, a direction meeting the requirements of R v Mushtaq [2005] UKHL 25 would have been required.

1. Privy Council: Shavargo McPhee v The Queen [2016] UKPC 29 — appeal against conviction allowed; question of retrial remitted to the Court of Appeal.
2. Court of Appeal of the Commonwealth of the Bahamas: prior appellate proceedings are identified, but its citation and disposition are not stated in the judgment.