Pham, R v [2008] EWCA Crim 3182

Case No 200801606/D1[2008] EWCA Crim 3182
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Tuesday, 9th December 2008
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE SCOTT BAKER
MR JUSTICE BENNETT
HIS HONOUR JUDGE STEPHENS QC
(Sitting as a Judge of the CACD)
Between
R E G I N ACrownv
Between
MINU PHAM
Computer Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr J Femi-Ola appeared for AppellantMr R Griffiths appeared for Crown
J U D G M E N T

LORD JUSTICE SCOTT BAKER:

The

[1]issue on this appeal is a very narrow one. The only evidence against the appellant was in the form of admissions that he made to the police. He agrees that he made the admissions but says they were not true. He made them because of oppression or improper conduct on the part of the police. He says the judge misdirected the jury as to their approach to this evidence. The jury should have been directed that unless they were satisfied beyond reasonable doubt that the confessions were not obtained as a result of oppression or improper conduct, they should disregard them, whereas in fact the judge directed them that the key question was whether the confessions were or may have been untrue.[2]The appellant was convicted in the Crown Court at Newport before Judge Morris and a jury on 12th February 2008 of conspiracy to produce cannabis and was sentenced to 5 years' imprisonment. He appeals against his conviction by the leave of the single judge.[3]The background is as follows. The Crown's case was that there was a conspiracy to produce and sell cannabis using rented properties in the Newport area as cannabis factories. There was a co-defendant at the trial called Tran, who was acquitted. Tran did not dispute the existence of a conspiracy but his case was that he was not part of it. The Crown's case was that he was the man who obtained the properties ostensibly for housing immigrant workers but he knew the real purpose was the cultivation of cannabis. The appellant's role was selling the crops in bulk or wholesale. There were other conspirators who were not before the court.[4]Some time on 19th November 2007 a Vietnamese male was carried by two other Vietnamese men to the Royal Gwent Hospital in Newport and abandoned on the doorstep. The male had been seriously beaten and died the following day from his injuries. A murder investigation began. A number of men were arrested and in due course a car, which was thought might be relevant to the investigation, came to the attention of the police. This car was registered in the appellant's name and to his home address. The appellant was seen by the police and he was able to satisfy the police that the car in fact belonged to a friend called Tu. Furthermore he was able to identify from CCTV coverage from the Royal Gwent Hospital the two men who carried and abandoned the deceased. He confirmed that one of the men was Tu and the other was another friend called Bac. He also confirmed that Tu had fled the country and that Bac was willing to surrender to the police. From this moment the appellant accepted an invitation to assist and, if required, to be a witness for the Crown.[5]Between April and May 2007 the appellant met Detective Constable Tuck from the investigating team on a number of occasions. Eventually on the 3rd and 4th May the appellant was interviewed as a witness. The interview was video recorded and subsequently formed the basis of a 9-page witness statement signed by the appellant. Although he was never told that he was a suspect, nevertheless, his fingerprints, DNA and photograph were taken by the police after the interview.[6]In summary, during the interview, the appellant informed the officers that Tu had told him that he was working for someone involved in the running of cannabis factories in Newport; that Bac worked in one of the factories and that the deceased was a "farmer" in one of the premises. He informed the officers that he understood that the deceased was assaulted because a whole crop of cannabis had been stolen and it was suspected that the deceased was somehow involved in the theft. The appellant was unable to say who had ordered the beating but Tu and Bac had been ordered to take the deceased to the hospital a few days after the assault had taken place.[7]Following the witness interview, further meetings took place between Detective Constable Tuck and the appellant. The appellant was informed that he would be entitled to claim the reward of £10,000 on offer if he managed to persuade Bac to hand himself into the police. The appellant arranged a meeting with Bac and Detective Constable Tuck for the 18th July. However, a day before the meeting Bac surrendered at the Vietnamese embassy in London.[8]On 7th September a further meeting took place between the appellant and Detective Constable Tuck. On this occasion Detective Constable Tuck was accompanied by Detective Sergeant O'Keefe. What occurred in the course of this meeting became the sole issue of dispute at the appellant's trial. According to the officers the meeting was arranged in order to gain further assistance from the appellant, if possible, and at no stage was the appellant considered or treated as a suspect in their investigation. In particular, they were interested in whether the appellant could help with the identity of two males in some photographs and, if possible, with some telephone evidence. According to the officers, during the meeting the appellant began to make admissions in relation to assisting Tu to sell cannabis from the cannabis factories. The officers stated that they immediately cautioned the appellant but he continued to make admissions. The officers stated that the appellant had admitted that he was involved in the sale of 80 to 100 kilos of cannabis and that he had received a commission of between £5,000 and £10,000. The meeting was brought to an end. The appellant was not arrested but was told that senior officers would be informed.[9]According to the appellant the meeting was arranged in order to discuss the reward for assistance in respect of Bac. At the meeting he said Detective Constable Tuck introduced Detective Sergeant O'Keefe as his boss and it was this officer who conducted the meeting. According to the appellant he was asked if he could put names to the two men in some photographs that he was shown and he was unable to do so. He was then asked about some telephone numbers and, again, he was unable to assist. After this Detective Sergeant O'Keefe began to shout and threaten him. Detective Sergeant O'Keefe shouted that they had a recorded telephone conversation between Tu and the appellant on the night of the murder which lasted three minutes, and that it was a conversation the nature of which the appellant would not forget for the rest of his life. He was told, correctly, that his telephone billing showed a call to Tu on 19th November 2006, at 19.15 hours, lasting three minutes. At this point he became terrified that the officer was trying to involve him in the murder. Detective Sergeant O'Keefe went on to say that the police knew that the appellant sold cannabis for Tu. The appellant then began to make false confessions and did so because he thought involvement in selling cannabis was better than involvement in murder. The appellant's case was that he was cautioned but was told that he would be arrested on Monday 10th September, if he did not come up with the names of the men in the photographs and the users of the mobile telephones he was asked about. The officers then departed. Later that evening the appellant telephoned Detective Constable Tuck on the officer's mobile and asked if he was in trouble. He was told that it was best to speak face-to-face on Monday. In evidence Detective Constable Tuck confirmed this telephone call was made by the appellant.[10]On Monday 10th September the appellant was arrested and interviewed on six occasions in respect of the events of the previous Friday. On each occasion he had the benefit of a solicitor. In the course of the interviews, he repeated the admissions that he had made to O'Keefe and Tuck. However, he did mention the need for a proper translation of any recorded mobile telephone conversation that the police may have between him and anyone else. In the trial the appellant stated that he was so scared about the murder that he decided to continue with the false confession. He also stated that he trusted Detective Constable Tuck to such an extent that he did not believe that he would be charged given promises previously made to him.[11]From that account it will be apparent that there was a sharp distinction between the Crown's case and the appellant's case as to how he came to make the admissions or confessions that he did.[12]Mr Femi-Ola, who appeared at the trial for the appellant, as he has appeared before us on this appeal, did not seek a voir dire to exclude the evidence. No doubt appreciating that with a solicitor present at the formal police interviews, any application to exclude the evidence would have been most unlikely to succeed. He was not required to seek a voir dire notwithstanding that he wished to dispute the confessions (see R v Liverpool Juvenile Court ex parte R [1988] 86 Cr App R 1). Even if there had been a voir dire and the evidence had been ruled admissible, the appellant would still have been entitled to challenge the reliability of the confessions on the ground of oppression or improper conduct on the part of the police.[13]Section 76(2) of the Police and Criminal Evidence Act provides:
"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."
[14]Lord Rodgerpointed out in the case R v Mushtaq [2005] UKHL 25 at paragraph 46 that the evidence is excluded because:
"... for all the kinds of reasons explained by Lord Griffiths, Parliament considers that it should not play any part in the jury's verdict. It flies in the face of that policy to say that a jury are entitled to rely on a confession even though, as the ultimate arbiters of all matters of fact, they properly consider that it was, or may have been, obtained by oppression or any other improper means."
He went on to say, at paragraph 47, that the logic of section 76(2) of Police and Criminal Evidence Act really requires the jury should be directed that:
"... if they consider that the confession was, or may have been, obtained by oppression or in consequence of anything said or done which was likely to render it unreliable, they should disregard it."
It is also to be noted that Lord Rodger at paragraph 55 in the same case said:
"... there is often no dispute that, if what the defendant said happened did indeed happen, the confession should be excluded under one or other of the paragraphs in section 76(2) of PACE. The only real dispute is as to whether the defendant's account as found in the evidence is true. In such a clear-cut case it may well be enough for the judge to indicate that, if the jury consider that the confession was, or may have been, obtained in the way described by the defendant, they must disregard it."
[15]This seems to us to have been a clear cut case in that there were no half measures. If what the appellant said happened, or was or may have been true, the confession had to be disregarded. There was in reality no difference between the issues: was or may the confession have been induced by oppression? And was or may the confession have been untrue? The two issues, in our judgment, stood or fell together.[16]Before leaving the case of Mushtaq, we should refer to the observation of Lord Carswell at paragraph 75, that the judge should direct the jury to the effect that unless they are satisfied beyond reasonable doubt that the confession was not obtained as a result of oppression, they must disregard it.[17]In our judgment it is most regrettable in this case that the judge's attention was not drawn to the House of Lords' decision in Mushtaq before he commenced summing-up. It was important, in our view, that his attention should have been drawn to it and submissions that should have been made to him as to the manner in which this simple and straightforward case should have been summed-up to the jury. Had that been done it seems unlikely in the extreme that this court would have been troubled with an appeal. In the result what happened was that after the completion of the summing-up, the matter was raised with the judge and after hearing submissions from both sides, he took the view that it would be best to leave matters as he had directed the jury because, in his view, that was sufficient.[18]It is now necessary, therefore, to turn to the summing-up and see how the judge put the case. He summarised the appellant's defence at page 6F. He said:
"He concedes that he was recorded in interview as making detailed admissions of visiting two houses in Newport where he saw for himself cannabis being cultivated. And agreeing with a man named Tu, who seemed to him to be managing such production in those places, to sell crops so produced to a purchaser found by him, the second defendant, in return for a cash commission. However, the second defendant denies that these confessions were the truth. His case is that they were deliberate lies told by him to the interviewing officers, which he says he felt induced to make as a result of so-called oppression applied to him by those two officers. As I understand his defence, the second defendant is saying to you that he felt frighted into making a false confession or series of them because he feared that if he did not do so he would or might be charged with the grave offence of murder, or at least of being implicated in the continuing police enquiries into the murder of a Vietnamese man in Newport, about which you have heard in broad terms."
He returned to the matter in more detail at page 19A. He said:
"In the case of the second defendant different considerations, of course, arise because he is said to have made a free and voluntarily confession to participation in the crime with which he is charged. The prosecution say that the confessions he made first orally and then subsequently in writing to DC Andrew or Andy Tuck, and in part to DS O'Keefe, are confessions upon which you could properly and safely rely. The defendant says that although he made these confessions voluntarily in the sense of no-one forced him physically to make them, they were not true. And they were not true by reason that he had been induced to make them under what he perceived to be a threat, namely that if he did not confess to involvement in the cannabis, he was to be implicated in the wider murder investigation. Well as to that, you have to look at all the evidence now before you, and ask yourselves the following question, if you think that confession, as I shall call it, those series of admissions about involvement as a vendor for crops of cannabis produced from within dwelling-houses in Newport, two of which he had visited himself and seen the crops in production, was or may have been untrue, then obviously you disregard the confession entirely. In those circumstances since there is no other evidence upon which the prosecution rely in asserting his guilt of the conspiracy or the criminal agreement charge, then it would follow that you must then acquit him. On the other hand if, having considered all the evidence before you, you are sure that those were true confessions, then you may think you could have no clearer evidence of his guilt than unequivocal voluntarily and true admissions."
So the judge puts the issue fairly and squarely as to the truth or otherwise of the confessions. But importantly, in our view, he does draw attention at page 19C to the reason why they might be untrue. There are the words:
"And they were not true by reason that he had been induced to make them under what he perceived to be a threat, namely that if he did not confess to involvement in the cannabis, he was to be implicated in the wider murder investigations."
He returns to the truth of the admissions at 20B:
"Obviously you will need to be careful, but if on all the evidence you are quite sure that was a truthful series of admissions then you may think that a verdict of guilty is unavoidable."
But he added, that in considering whether the admissions were the truth, the jury would obviously take into account the reasons the appellant had given for making false admissions. At page 20D, the judge directed to the jury towards the implications of what was said in the mind of the appellant. Then he went on page 20G:
"Members of the jury, what was the effect on his mind of anything that was said or done as you find as a fact by the officers in the course of those meetings or which preceded the relevant interview with which you were concerned? Having resolved the issues of threat which arise as to that, then you will have to, or may have to, go on and ask yourselves well does that render the confessions he made unreliable in the sense that we cannot be sure that they were the truth and think therefore that they may possibly have been untrue. If that were your state of mind then, of course, as I have already said, but re-emphasise now, you would have to disregard the confession. But that is the single issue which arises in this case."
[19]In truth, all that was necessary was for the judge to have directed the jury that if the appellant's account that his confessions were or may have been made, not because they were true but because of the oppression or conduct he described, then they were of no weight and could not be relied on. But no circumstances were being advanced whereby the confessions were made under oppression but were nevertheless true. In the real world there was no difference in this case between the confessions being made under oppression, on the one hand, and not being true on the other.[20]We should refer finally before leaving the summing-up to page 56H where

the judge said:

"Well you saw and heard him [the appellant] also as a witness in the case and once again must assess what he said. Ultimately the question for you is were the admissions that he made first orally to the two officers on Friday 7th September last, and subsequently in significant detail in a lengthy series of interviews, the truth? If they are then is there any reason to regard those admissions as anything other than reliable? And if they are and you are sure about that, then what better evidence could you have of his guilty of the offence charged? On the other hand if you are unsure as to whether they are the truth, or you can properly rely on them as the truth, then there is no other evidence in the case against him."
As we have mentioned, there was some discussion after the judge had concluded his summing-up in which Mr Femi-Ola tried to persuade him to give a further direction but the judge declined, saying at page 66G:
"I think that I have properly and clearly directed the jury as to what really matters. If I have got it wrong and he is convicted then another court may have to put it right, if it is thought that I am wrong."
The learned judge should have followed more closely the analysis required by the House of Lords in Mushtaq. He no doubt would have done so had his attention been drawn to the authority and submissions that have been made by counsel on both sides prior to the summing-up. But, in our view, his direction to the jury taken overall was entirely adequate to focus the jury's minds on the real factual issue. There was no unsafety about this conviction in our judgment. The judge was in error in focusing primarily on the truth or otherwise of the confessions, but when one looks at the summing-up it is perfectly clear that the jury was made well aware that the only circumstances in which the confessions might be untrue related to the manner in which they had been obtained. In these circumstances and bearing in mind our conclusion that the conviction is safe, this appeal is dismissed.

Cited in 1 later judgment