The meaning of the word "confession" in s.76 Police and Criminal Evidence Act 1984 was reconsidered in light of the decision of the European Convention on Human Rights in Saunders v United Kingdom.Defendant's ('D') appeal against conviction for aggravated burglary. D's defence to the offence had been one of duress. On appeal he had submitted that: (i) the judge had acted unreasonably in failing to exclude all reference to a police officer's report following an off-the-record conversation and in failing to take account breaches of Code C Police and Criminal Evidence Act 1984; (ii) the judge had failed to take into account his rights to be protected against danger to his or his family's life and physical welfare as enshrined in Art.2 and Art.8European Convention on Human Rights; (iii) in light of the decision of the European Court of Human Rights in Saunders v United Kingdom (1996) 23 EHRR 313, the view expressed in R v Sat-Bhambra 88 Cr App R 55 as to the meaning of confession in s.76 of the Act was wrong; (iv) there had been a misdirection as to duress; and (v) there had also been a misdirection in relation to voluntary association.HELD: (1) The first ground of appeal related to a difficult issue that had concerned two conflicting public interests namely the public interest in exposing D's false reliance on his duress defence and the public interest in the promise of confidentiality. The judge had not exercised his discretion under s.78 of the Act erroneously or unreasonably. (2) Section 3 Human Rights Act 1998 required the court to reconsider the meaning of "confession" in s.76 Police and Criminal Evidence Act 1984. The discussion in Sat-Bhambra (supra) indicated that two views were possible as to what amounted to an adverse statement. The definition of "confession" was inclusive and intended to be a broad one. The decision as to whether or not a statement was a confession was to be made at the time it was sought to give the statement in evidence. That was confirmed by the underlying rationale of s.76 of the Act. In this case, the confidential statement was, at the time it fell to be considered, a confession. The judge had erred in relying on the decision in Sat-Bhambra (supra). (3) The direction in relation to duress was a misdirection. There had never been any suggestion that D could have avoided the effect of the threat against him. The issues raised under this, the third question in the series of questions ordinarily posed in a duress direction, collapsed into the issues raised under the first two questions. Therefore there was a danger that the jury may have been confused by being asked an additional question on matters already covered by the first two questions. (4) As to voluntary association, the balance of authority was in favour of the direction approved by Lord Lane in R v Sharp 1987 QB 853. There had to be anticipation of pressure to commit a crime of the type charged. Directions on the question of voluntary association ought to have referred to threats to commit a crime of the type charged. There had therefore been a misdirection. The judge ought to have directed the jury to consider whether D had known that he was likely to be subjected to threats to commit a crime of the type with which he had been charged. (5) The combination of the errors and misdirection in the judge's summing-up meant that D's conviction was unsafe and would be quashed.Appeal allowed. Conviction quashed.

[2003] EWCA Crim 191

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