Neutral Citation Number: [2010] EWCA Crim 1506
Case No: 200904828 C4
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT KINGSTON UPON THAMES
HIS HONOUR JUDGE BINNING
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 05/07/2010
Before :

LORD JUSTICE STANLEY BURNTON
MRS JUSTICE DOBBS
and
HIS HONOUR JUDGE PERT QC 
(sitting as an additional judge of the Court of Appeal Criminal Division)

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Between :

	JAY MICHAEL CHRISTOPHER ALAGARATNAM	Appellant	
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	THE QUEEN	Respondent	

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John Cooper QC (instructed by Tuckers Solicitors) for the Appellant
Christopher Hehir (instructed by the CPS) for the Respondent

Hearing dates : 22 June 2010
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Judgment

Lord Justice Stanley Burnton : 
Introduction 
1.	On 20 August 2009 in the Crown Court at Kingston-upon-Thames before His Honour Judge Binning and a jury the appellant, Jay Alagaratnam, a young man now aged 18, was convicted of robbery. His co-accused, Temman Dias,  was convicted of 6 counts of robbery. The appellant was subsequently sentenced to 5 years’ detention in a young offender institution, with time on remand in custody to count. He appealed against his conviction with leave of the single judge. 
2.	After hearing submissions, we dismissed the appeal, and stated that our reasons would be given subsequently. These are our reasons for dismissing his appeal.
The facts
3.	The appellant’s co-accused, Temman Dias, was convicted of 6 counts of robbery. He was sentenced to concurrent sentences of imprisonment for public protection with a minimum term of 9 years.
4.	Between August 2007 and October 2008 a series of street robberies took place in the area of Battersea, south west London.  These robberies were executed in the same fashion namely a lone female was attacked from behind, her neck was placed in an arm lock and she was choked or strangled into unconsciousness and her handbag stolen.
5.	On Friday 3 October 2008 at around 2.00am, Sarah Townsend (née Briggs) was on her way home in a taxi having spent the evening in Central London. At or close to her front door she was attacked and strangled, losing consciousness. Her handbag was stolen.
6.	At around 6.45a.m., police officers, in a planned operation, went to the address of the co-accused at 14 Bowstead Court, Battersea where they arrested the appellant and his co-accused. The appellant had in his possession a Blackberry mobile telephone and a bank card belonging to Sarah Townsend. A pair of gloves also belonging to Mrs Townsend was found on the co-accused’s bed. Other property was found at a location midway between her home and the co-accused’s address.
7.	The appellant was interviewed by DS Booth and TDC Field in the presence of a solicitor and his aunt, acting as appropriate adult. In his first interview on 3 October he provided a prepared statement denying involvement in the robbery of Sarah Townsend. During that interview, DS Booth asked the following question:
“Because Mr Dias has been arrested as you’re aware, again from the same bedroom with you and in relation to the Royal Bank of Scotland card in the name of Sara Briggs, he believes you brought it into the bedroom? What have you to say about that?”
TDC Field asked further questions: 
“How well do you know Mr Dias? 
Are you good friends with him? 
Is there any reason why he would say that you are responsible for bringing them into the house?”  
The appellant made no comment answers to all these and other questions.
8.	At the conclusion of the interview, DS Booth made a further statement that included the following: 
“I think that in view of your answers there is little point in continuing the interview at this time. We have a large amount of other matters, other offences where women have been viciously attacked that we shall talk to you about tomorrow and also again your questions about this matter. What I would like you to do is sleep on it overnight. Think about what Mr Dias may or may not have said about your involvement in these matters. I appreciate, I believe you may be quite influenced by him, he's 24, you're 16. Think very carefully about your position. You're in a very precarious position you find yourself at this time. These are very, very serious street robberies. The method that's used I would suggest is far, far worse than holding a knife to a young lady's throat, far worse. We'll go into that tomorrow. Do you understand? Thanks for nodding your head.”
9.	The officers’ statements that Dias had said that the appellant was responsible for bringing the stolen items into the house were inaccurate. What Dias had said was that the appellant was one of two people who could have brought one of these items, the bank card, into the house.
10.	The appellant was interviewed again on 4 October 2009 and provided a further prepared statement admitting participation in the robbery of Sarah Townsend, denying participation in other earlier robberies and making no comment to subsequent questions. We shall refer to that prepared statement as “the confession”.
11.	On 4 October 2008 the appellant and Dias were charged with the robbery of Sarah Townsend and appeared at the magistrates’ court on 6 October 2008 where their detention was authorised for a further questioning about the earlier robberies. Pre-interview disclosure was made by the officers which did not identify any evidence against the appellant. The appellant was interviewed on 6 and 7 October in the presence of the same appropriate adult but a new solicitor. He provided a third prepared statement denying involvement in the earlier robberies. In a prepared statement made on 7 October, he corrected an error regarding his ownership of two mobile telephones. It read:
“I wish to make this statement to clear up a misunderstanding during my Interview yesterday. I was questioned about a Samsung phone. I wish to confirm that I own 2 black Samsung mobile phones. … ”
12.	The co-accused largely declined to answer questions in his interviews. 
13.	Both appeared on an indictment containing 16 counts – 8 counts of robbery and 8 counts of attempting to choke, suffocate or strangle with intent. Before trial the prosecution elected to proceed on the robbery counts only. The only count against the appellant charged the robbery on 3 October 2008.
14.	The prosecution case was that the appellant and co-accused were responsible for the robbery on 3 October 2008.  They relied upon evidence of recent possession: the Blackberry mobile telephone and bank card belonging to the victim were found in the appellant’s pockets when he was searched. They further relied upon lies told by the appellant at the time of his arrest namely that the telephone and bank card belonged to his sister. They relied upon the appellant’s confession in interview.
15.	The case for the appellant was that he was not present at the time of the robbery of Sarah Townsend and had made false admissions to that robbery due to the misleading and improper behaviour of the interviewing police officers. The items of stolen property found in the appellant’s possession were given to him by unknown individuals to give to the co-accused and he had brought these items into the co-accused’s home innocently. Thus the issue for the jury was whether they could be sure that the appellant was responsible for the robbery of Sarah Townsend.
16.	At the trial, no objection was made to the admission in evidence of the confession until after DS Booth had given evidence. The appellant then applied for the jury to be discharged, on the basis that the confession was inadmissible or that its admission in evidence was unfair. The application was refused. The judge found that what had been said by the officers had not been likely to make the confession unreliable.
17.	The appellant subsequently gave evidence in which he explained why he had made the confession.
18.	As appears above, the jury duly convicted the appellant.
The contentions of the Appellant
19.	The only ground of appeal pursued before the Court was that the judge had erred in ruling that the Appellant’s confession was admissible and in failing to exclude it under section 78 of PACE. Its admissibility not having been challenged before it was adduced in evidence, the jury should have been discharged. As it was, the Appellant was convicted in part on the basis of an inadmissible confession. In those circumstances, his conviction was unsafe and had to be quashed.
20.	On behalf of the appellant, Mr Cooper QC (who was not trial counsel) submitted that his confession had been given in consequence of the misleading account of what Dias had said to the police. That account had been deliberately misleading: Dias had told the police that the victim’s belongings found by them had been brought in by one or other or both of two persons, one of whom was the appellant, whereas he was told that Dias had said that he alone had brought those items into the flat. In addition, the police had behaved towards the appellant and his appropriate adult systematically and continuously in an oppressive and intimidating way and undermined the authority of his legal advice; and they had failed to take into account his youth and inexperience while in police custody. In these circumstances, there had been oppression within the meaning of section 76(2)(a) of PACE; in addition, section 76(2)(b) applied. In any event, the confession should have been excluded under section 78.
21.	We did not call on Mr Hehir on behalf of the prosecution, but took into account his very clear and helpful skeleton argument.
The statutory provisions
22.	Section 76 of PACE is so far as relevant as follows:
76.  Confessions.
 (1) In any proceedings a confession made by an accused person may be given in evidence against him in so far as it is relevant to any matter in issue in the proceedings and is not excluded by the court in pursuance of this section. 
(2) If, in any proceedings where the prosecution proposes to give in evidence a confession made by an accused person, it is represented to the court that the confession was or may have been obtained— 
(a) by oppression of the person who made it; or
(b) in consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in consequence thereof,
the court shall not allow the confession to be given in evidence against him except in so far as the prosecution proves to the court beyond reasonable doubt that the confession (notwithstanding that it may be true) was not obtained as aforesaid. 
(3) In any proceedings where the prosecution proposes to give in evidence a confession made by an accused person, the court may of its own motion require the prosecution, as a condition of allowing it to do so, to prove that the confession was not obtained as mentioned in subsection (2) above.
….
(8) In this section “oppression” includes torture, inhuman or degrading treatment, and the use or threat of violence (whether or not amounting to torture).
23.	The provisions of section 78 are familiar:
78. Exclusion of unfair evidence.
 (1) In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it. 
(2) Nothing in this section shall prejudice any rule of law requiring a court to exclude evidence.
Discussion
24.	Mr Cooper submitted that the interviewing officers had deliberately lied to the appellant. At the trial, DS Booth was cross-examined on behalf of the appellant. He denied having deliberately said anything untrue. The judge did not find that the officer had deliberately misled the appellant. In these circumstances, it would require exceptionally cogent evidence to justify this Court from, in effect, reversing the finding of fact of the trial judge. There is no such evidence. The difference between what Dias had said, and what was said by the officers, was not great. Since items from the robbery were found in the appellant’s possession, the natural inference from what Dias had said was that it was the appellant who had brought those items into the house.
25.	Mr Cooper submitted that the conduct of the officers on 3 August amounted to oppression within the meaning of section 76. While subsection (8) is not a definition of that term, it indicates what kind of conduct may amount to oppression. The conduct of the officers in this case was not oppression, and it is significant that trial counsel did not so contend.
26.	However, even innocent misrepresentations and other conduct may be such as to be likely to render a confession unreliable. But in our judgment, there is nothing in the present case to justify this conclusion, which again would require this Court to overturn the trial judge’s finding of fact. Quite apart from anything said by the officers, there was strong evidence against the appellant, as he was well aware. He had been found with proceeds of the robbery shortly after it had been committed. He was advised by a solicitor and had the benefit of his aunt’s presence. We must assume, in the absence of any evidence to the contrary, that his solicitor advised him not to admit to anything he had not done, and that his statement should be true and accurate. The large number of manuscript alterations to the confession, initialled by the appellant, supports this assumption. 
27.	In any event, the appellant’s own evidence did not suggest that what he had been told by the police led to his confession. His case was that he had been given the items in question by someone he did not know outside Dias’s home and told to give them to him. Thus he admitted that he had brought them into Dias’s home, which is what, in relation to the bank card, the officers had said that Dias had said. He said that he had been worried by what the police had said to him, and that his solicitor had told him that he needed an explanation of the property found on him, and asked what it was. He said he could have said that he had found the items, but felt that his solicitor would not believe him, so the only option was to admit it, whether he did it or not. He told the solicitor that he had found the items, and his solicitor told him, “No one’s going to believe that. Let’s be serious here.” According to the summing up, he said that the confession was his solicitor’s idea, and “I felt an admission was my only option”. 
28.	It appears, therefore, that the pressure on the appellant to make his confession, according to his testimony, came from his solicitor, not from what the officers had said. His solicitor sensibly advised him that his possession of proceeds of the robbery called for some explanation, and it was given in the confession. Moreover, his statement correcting an earlier statement demonstrates that he could have withdrawn any earlier untrue statement, just as he had corrected one. The fact that there had been a change of solicitor adds to this consideration.
29.	In these circumstances, we considered that there was no basis for interfering with the judge’s finding and decision. To the contrary, the subsequent evidence of the appellant confirmed the correctness of his finding. The prosecution had satisfied the requirements of section 76. There was no basis for excluding the confession under section 78.
30.	Lastly, the procedure in this case was unsatisfactory. If objection is taken to the admission of a confession, that should be made before it is admitted in evidence before the jury, so that any factual issues may be resolved in the absence of the jury on a voir dire, with the benefit of the evidence of the defendant, should he wish to testify.