Dhorajiwala, R. v [2010] EWCA Crim 1237

[2010] EWCA Crim 1237Case No 200903609 D3IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM the crown court at reading
HIS HONOUR JUDGE RISIUS
T20080121
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 09/06/2010
Before
LORD JUSTICE AIKENSMRS JUSTICE SLADEHHJ WADSWORTH QC
Between
RRespondentBhavna dhorajiwalaAppellant
Mr Andrew Vout for AppellantMr Giles Curtis-Raleigh for RespondentHearing Hearing dates : 12 th May 2010
Judgment
[1]On 12 May 2010, we heard the appeal against conviction of Bhavna Dhorajiwala, leave having been granted by the single judge. At the end of the hearing we announced that the appeal would be allowed for reasons to be given at a later date. These are our reasons.[2]On 24 June 2009 in the Crown Court at Reading before His Honour Judge Risius and a jury, the appellant was convicted on seven counts of theft by a majority. On 14 August 2009, Judge Risius sentenced the appellant to nine weeks imprisonment suspended for 24 months on each count concurrent. He attached an unpaid work requirement to the suspended sentences. The judge also made compensation and prosecution costs orders against the appellant. The jury were unable to reach a verdict on a further 9 counts which were ordered to remain on the file in the usual terms as were further counts.[3]The facts giving rise to the case are, briefly, these: the appellant is a pharmacist. She was employed as a pharmacist and manager in a shop in Windsor between 1999 and November 2006. The Crown’s case was that for a period of approximately two years prior to her dismissal the appellant stole money from the till register in the shop where she worked. The Crown relied upon two main pieces of evidence. First there was evidence of a series of customer sales transactions which were not put through the till when the appellant served customers. Secondly, there was an alleged confession of the appellant during an interview with civilian investigative agents.[4]The appellant said, in her defence, that she did not at any stage act dishonestly. Her case was that she did not put certain transactions through the till because her employer, a director of the company that employed her, had instructed her not to do so and had instructed her to pass money from those sales directly to him.[5]The single ground of appeal is that the judge was wrong to admit in evidence the interview conducted by two members of the investigation agency in the course of which the appellant made confessions. The judge dealt with the question of the admissibility of the interview at the start of the trial. He heard submissions from counsel on behalf of the defendant (Mr Vout) and for the Crown (Mr Curtis-Raleigh). Both counsel also appeared before us. Having heard submissions from counsel, the judge decided that he could rule on the application without hearing evidence on the voir dire.[6]The judge heard submissions on 17 June 2009 and reserved his judgment until the following day. On 18 June 2009 the judge gave a clear and succinct ruling in favour of admitting the interview evidence.[7]In the course of the ruling, the judge explained how the interview came about and described the interview itself. Mr Melvin Papworth, an employee of the investigative agency, carried out a test purchase in the pharmacy on 27 October 2006. He paid for the prescription in cash and saw the appellant go to the till and press one key. He checked the till roll later and there was no trace of that payment. This exercise was repeated by him on 2 November 2006.[8]On 13 November 2006 at about 10.55am Mr Papworth and another employee of the investigative agency, Ms Denise Inwood, introduced themselves to the appellant. They showed their identity cards. Mr Papworth asked if she recognised him and she said that she did. Mr Papworth told the appellant that he was there to interview her about transactions. The three went into a small room. Mr Papworth asked the questions and a manuscript note was taken by Miss Inwood. No tape recording of the procedure was made.[9]We have the manuscript notes of Ms Inwood, which were put onto a standard, type written, form headed “Record of Interview”. This states “Caution given” and then a time has been added; in this case 11 am. There is then a typed declaration that the interviewee has been cautioned. This was signed by the appellant. It was confirmed before us that the caution given was the standard caution given by the police before a suspect is interviewed.[10]The “Record of Interview” then states that the first thing done was to read out a statement from another witness. The record then states that the appellant asked the question:
“what’s the worst scenario”, to which Mr Papworth answered “prison”
. The appellant is then recorded as asking:
“what figures have you got”, to which Mr Papworth replied: “we’re talking thousands”
. The appellant then said, according to the record: “Not thousands; I only started doing it recently. I was desperate for money. I felt it was my right and Mr Tanner didn’t give me a pay rise. I’m not a thief, I feel justified”.[11]The interview continued and in the course of it the appellant produced cash which she said she had taken from the till and kept in a brown envelope in the shop. The cash had a total value of £1031. When this was counted out in the presence of Mr Papworth and Ms Inwood the interview was terminated at 11.50 am. The appellant signed each page of the interview record. Several, but not all, of the pages are countersigned by Mr Papworth.[12]The appellant was subsequently interviewed by the police and she answered “no comment” to all questions put to her. In her Defence statement of 7 May 2008, the appellant maintained that she did not act dishonestly at any stage; did not ever take goods or money to which she was not entitled and did not falsify any cashbook entries. Her explanation for the removal of the cash was that subsequently given at her trial.[13]At the trial Mr Papworth and Ms Inwood both gave evidence. In his evidence, Mr Papworth said that after he had cautioned the appellant at the beginning of the interview, he made it clear to her that she was not under arrest and that she was free to leave at any time. He said that the notes taken by Ms Inwood were accurate “to his recollection”. In cross-examination he said that the appellant was calm in the interview and was not upset by it. He also agreed that if the interview had been conducted at a police station then the appellant would have been offered a solicitor, but he reiterated that the appellant was not under arrest and not under any form of detention. It was put to him that the exit from the interview room was blocked, but he denied that. Ms Inwood also gave evidence that Mr Papworth had said to the appellant that she was free to leave if she wished.[14]The appellant gave evidence at the trial. She said that the interview room was very small and Mr Papworth closed the door. She said that he had said, in answer to her question “how can I help” that it would take a long time. Her evidence was that Ms Inwood “blocked her escape route”. The appellant said that she was upset and crying and did not read through the notes before signing. She said that she signed to get out of the room. In cross-examination she accepted that she had been cautioned at the outset of the interview, but she said that she had not read the caution and was not shown it until the end of the interview. The appellant said in cross – examination that she disagreed with Ms Inwood’s account of what she had said in the interview.[15]Before us, as before Judge Risius, Mr Vout submitted that the interview with the private investigative agency should be excluded from evidence at the trial on two grounds. First, because the procedure adopted at the interview was in breach of several provisions of the PACE Codes of Practice and the breaches were so significant that the court should exercise its discretion to refuse to allow the interview to be admitted in evidence pursuant to section 78 of the Police and Criminal Evidence Act 1984 (“PACE”).[16]Secondly, Mr Vout submitted that the interview amounted to a confession by the appellant for the purposes of section 76 of PACE. He submitted that he, as counsel, represented to the judge that the confession in the interview had been or may have been obtained by oppression of the appellant. That oppression consisted of Mr Papworth’s answer of “prison” to the appellant’s question “what is the worst scenario”; the fact that the appellant could not leave the small room where she was being interviewed and the generally threatening nature of the behaviour of Mr Papworth and Ms Inwood in the small interview room. Alternatively he submitted that the confession had been obtained in consequence of the things said and done by Mr Papworth and Ms Inwood. Accordingly, Mr Vout submitted that one or other of these did, or might render that confession unreliable. In either case, he submitted, the court should not have allowed the confession to be given in evidence against the appellant except in so far as the prosecution proved to the court beyond reasonable doubt that the confession (notwithstanding that it may be true) had not been obtained by oppression or as a result of Mr Papworth’s answer to the appellant’s question. So, both before the judge and before us, Mr Vout relied on both limbs of section 76(2)(a) and (b) of PACE.[17]In his ruling on the admissibility of the interview, the judge noted that section 67(9) of PACE provides that “persons other than police officers who are charged with the duty of investigating offences or charging offenders shall in the discharge of that duty have regard to any relevant provision of …a code” made under PACE. He noted that there are cases in which several different types of investigator, including store detectives, have been held to be subject to the PACE Codes.[18]In R v Bayliss (1994) 98 Cr. App. R 235, Neill LJ, giving the judgment of the court, held that a store detective could be a person “charged with the duty of investigating offences” within the meaning of section 67(9) of PACE. It is a question of fact in each case and its determination will turn on the evidence of the terms of the contract between the store detective and his employer and all the circumstances of the case. In this case the judge did not have any evidence before him, at the time of his ruling, about the basis on which the investigators had been employed by the pharmacy. We prefer, therefore, to say nothing on the question of whether the investigators were subject to the Codes and whether there was a “significant” breach of them that might trigger the exclusion of the interview pursuant to section 78 of PACE.[19]Section 76(1), (2), (3) and (8) of PACE provide as follows: “76.-(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).” (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,[20]The steps in the argument of Mr Vout in relation to section 76 are:(i) the interview amounts to a confession;(ii) it was arguable that the interviewers did not make it clear that the appellant was free to leave at any time, alternatively they blocked her exit and were overbearing and so threatening in manner;(iii) the interviewers did not properly explain the caution;(iv) the appellant was never, at any stage offered the services of a solicitor;(v) moreover, the effect of all of the above together with Mr Papworth’s answer of “prison” to the appellant’s question was to make the confession unreliable; (v) accordingly, he, Mr Vout, was entitled and did “represent to the court” (ie. Judge Risius) that the confession had been obtained by “oppression” or as a result of the way the interview was conducted and it was likely that this made it unreliable.(vi) Therefore, it was up to the prosecution to prove to the court beyond reasonable doubt that the confession, notwithstanding that it might be true, was not obtained by oppression or as a result of what was done or said in the interview.(vii) Because the prosecution did not call any evidence as to the circumstances of the interview, the judge was not entitled to find, to the criminal standard, that the prosecution had proved that the interview was not obtained by oppression or as a result of things said or done in the interview which were likely to render it unreliable. Therefore, the judge erred in admitting the interview.[21]On the question of whether the interview should not be admitted by reason of section 76 of PACE,

the judge ruled as follows (transcript pages 6B-6F):

“….. If an interviewer were to commence an interview with a threat of imprisonment in normal circumstances that might well amount to oppression, but, unusually, the interview here started with a question from the defendant: What’s the worst scenario?” to which Mr Papworth replied with the single word “Prison.”
In my judgment that was the only appropriate answer. It was not said as a threat, but simply in answer to her question. Mr Papworth would have been open to criticism had he given a different answer or if he had declined to answer. As to being in a confined space with two interviewers and without a solicitor, it is difficult to see how that in itself could amount to oppression, but even if the position were otherwise, the defendant was specifically told that she was free to leave at any time. For all these reasons I see no basis for excluding the interview under either section 76 or section 78 and the application is, therefore, rejected.””[22]In our view the questions that arise on this appeal are as follows:(i) what constitutes a “representation to the court” for the purposes of section 76(2)(a) and (b) of PACE;(ii) could the statements of Mr Vout to Judge Risius amount to “representations” for the purposes of section 76(2)(a) and (b);(iii) if so, were the circumstances in which the interview took place capable of amounting to “oppression” within the meaning of section 76(2)(a), or was there an arguable case that the confession may have been obtained in consequence of anything done or said which was likely to make the confession in the interview unreliable?(iv) If so, could the burden upon the prosecution be discharged by the production of the record of the interview, or was the judge obliged, in the circumstances of this case, to hear evidence on a voir dire before he could be satisfied that the prosecution had proved beyond reasonable doubt that interview was not obtained by oppression or as a result of anything said or done by Mr Papworth and Ms Inwood in the course of the interview?[23]It is common ground that the interview amounted to a confession by the appellant. In our view, a statement by responsible counsel, upon the basis of documents or a proof of evidence in his possession at the time of speaking, that this confession was or may have been obtained by oppression or in consequence of anything said or done which, in the circumstances at the time, was likely to render it unreliable, is a “representation” for the purposes of section 76(2). Counsel informed us that they had found no authorities precisely on the point. In Reg v Liverpool Juvenile Court ex p R [1988] QB 1, Russell LJ commented that “representation” is not the same as cross-examination, but he did not elaborate further on the meaning of “representation”.[24]Mr Vout told us that his application to the judge to exclude the interview record were made on the basis of the manuscript record of the interview and a proof of evidence from the appellant in which she said that she felt oppressed by the circumstances and that she made the confession because of them. In our view, what Mr Vout said to the judge undoubtedly constituted a “representation” for the purposes of section 76(2) of PACE.[25]The third of the questions set out above then arises. The judge heard submissions only on this issue. He heard no evidence. Therefore, it seems to us, he must have concluded that there was no reasonable argument that could be raised under either section 76(2)(a) or (b), on the basis of the submissions made to him.[26]Was there a possible case on “oppression”? We recognise that the partial definition of “oppression” given in section 76(8) emphasises severe treatment. But in R v Fuller [1987] 1 QB 426, Lord Lane CJ stated that “oppression” must be given its ordinary dictionary meaning of “the exercise of power or authority in a burdensome, harsh, or wrongful manner, the unjust or cruel treatment of subjects, inferiors etc. or the imposition of unreasonable or unjust burdens”: see page 432F. Lord Lane said that “oppression” in the sub-section would be almost bound to entail some impropriety on the part of the interrogator. Lord Lane also said that the ambit of section 76(2)(b) was wider than that in section 76(2)(a), so that a confession could be invalidated under that paragraph even when there had been no impropriety under the latter provision.[27]In our view, the judge was wrong to conclude, as he effectively did, that no reasonable argument could be raised on either limb of section 76(2). On the representation of Mr Vout, it was the appellant’s case that she had been prevented from leaving the room; she had not been allowed access to any legal advice, she was threatened that the consequence of what was alleged to have done was prison and the interview was conducted in a threatening manner. In those circumstances, we think that the judge should have concluded that these were allegations that had to be investigated by a consideration of the evidence on a voir dire. Only in that way could they have been tested satisfactorily. We recognise that it appears that neither Mr Vout, nor Mr Curtis-Raleigh for the Crown, invited the judge to hear evidence on a voir dire. However, the court has the power, under section 76(3), to require the prosecution to prove that the confession was not obtained as mentioned in section 76(2). That was not exercised in this case and we have concluded that it should have been.[28]We therefore come to the last question posed above. It seems to us that if the judge wrongly concluded that there was no reasonable argument on either limb of section 76(2) and he was wrong not to have conducted a voir dire and reached a conclusion on the evidence,then it is logically impossible to see how the judge could properly have been satisfied that the prosecution had proved beyond reasonable doubt that the confession in the interview had not been or might not have been obtained by either of the means set out in section 76(2)(a) or (b). The judge had heard no evidence either way.[29]In our view, there was a material failure in the procedure in this case. The effect of it was that the prosecution did not prove, beyond reasonable doubt, that the confession contained in the interview fell foul of section 76(2)(a) or (b). Accordingly the court should not have permitted the confession to be given in evidence. It was obviously powerful evidence that would have had a great effect on the jury. The procedural irregularity impugns the fairness of this trial. It means that the conviction must be regarded as unsafe.[30]That is why we allowed the appeal and quashed the appellant’s conviction.