ABSTRACT
Snaresbrook, the appellant, Meir Goldenberg, was convicted following a trial lasting eight days on an indictment charging him together with two other men with conspiracy to supply diamorphine ... The second ground of appeal concerned the interview which took place at Boreham Wood police station on June 16 1987. At the trial counsel for the appellant sought to exclude evidence about this interview on the basis that it was unreliable. It was also argued at one stage that this evidence was not relevant and that its prejudicial effect outweighed its probative value. The judge rejected these arguments in the following ruling: ‘Mr Pownall relies in substance on the basis that the evidence may be unreliable under section 76 of the Police and Criminal Evidence Act. He submitted initially that such evidence was not relevant and that its prejudicial value in any event outweighed its probative value. He did not pursue that ultimately, and rightly so, as the evidence in my view is obviously relevant and highly probative. Its only prejudicial value is that that follows all admissions. I have to decide therefore the sole issue as to its reliability. Mr Pownall says that it may be unreliable because, on the face of it, the admissions in the interview are an attempt to get bail and, secondly, that as Mr Goldenberg was a heroin addict and as he had been in custody for some weeks, it might be expected that he would do or say anything, however false, to get bail, presumably thus to be able to feed his addiction. The earlier admissions by Mr Goldenberg seem to me highly relevant. He accepted in those earlier admissions following shortly after his arrest that in substance he had acquired heroin in order to sell that on through his co-defendants but at that early stage was not prepared to go into any further details. In these admissions he goes into some further detail but seems to limit those details, suggesting that he can only provide the fullness of them if and when granted bail. It seems to me, therefore, that this confession is perfectly consistent and follows on from his previous confessions. Bail may well have been in his mind, as indeed other motives may well have been, but there is nothing that I can see which suggests in any way that this confession is in any way unreliable. There is no evidence before me that he was suffering from heroin addiction at the time or shortly before June 16 but even if he had been, my view of the admissibility of this interview remains the same. I can see nothing, even in those circumstances, which would in any way render the admission or the interview in any way unreliable. Of course, it is for the prosecution to satisfy me that the admissions in the interview are not unreliable and for the reasons that I have given they have done so. In my view, therefore, this interview (and the admissions contained in it) is admissible.’ In this court, though counsel did not abandon his submission that the evidence was more prejudicial than probative, the argument against the admissibility of evidence about the June 16 interview was put in two principal ways: (a) that the judge should have ruled against the admissibility of the evidence in accordance with section 76(2)(b) of the Police and Criminal Evidence Act 1984 (‘the 1984 Act’) and (b) that, in the alternative, the judge should have excluded the evidence in accordance with section 78 of the 1984 Act ... The submission based on section 78 of the 1984 Act can be dealt with quite shortly. It will be seen that by this section the court is given a discretion to exclude evidence in certain circumstances. It does not appear however that in the present case any submission was made to the judge at the trial to the effect that the evidence should be excluded in accordance with section 78. In these circumstances it does not appear to us that it would be right for this court to give
effect to a submission which depends on the failure of a judge to exclude evidence by a discretion which at his trial he was not asked to exercise. We turn therefore to the argument based on section 76 of the 1984 Act. Here, if the argument is well founded, the exclusion of the evidence is mandatory and in any event it is clear that the point was fully canvassed before the judge. It was submitted on behalf of the appellant that the words ‘said or done’ in the phrase ‘in consequence of anything said or done’ could include what was said or done by the appellant himself. He had requested the interview and his motive, it was said, was to obtain bail or alternatively, as one of the police officers said in the course of the trial, to obtain credit for helping the police. It was also submitted, though without great force, that the confession was unreliable because of the words used by Detective Sergeant Leader at the outset of the interview which might have led the appellant to think that anything he said would be ‘off the record’, or at any rate would not be used against him in the present proceedings. It is to be noted that this alternative submission was not advanced at the trial. It is important to remember that in the present case there was an application on behalf of the appellant that the evidence should not be admitted. The case therefore fell within section 76(2) of the 1984 Act rather than within section 76(3), under which the court may, of its own motion, require the prosecution to prove the reliability of a confession. It follows therefore that if criticism is now to be made of the judge’s ruling, it is necessary to bear in mind the arguments addressed to him at the trial. Thus the obligation on the court under section 76(2) arises where ‘it is represented to the court that the confession was or may have been obtained 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’. In the present case it is clear that no reliance was placed at the trial on anything said or done by Detective Sergeant Leader at the start of the interview. The argument was based on what was said or done by the appellant himself and on his state of mind. It is in that context that the judge’s ruling has to be considered. It is also to be noted that on the voir dire the appellant himself did not give evidence. It was submitted on behalf of the appellant that in a case to which section 76(2)(b) of the 1984 Act applied, the court was concerned with the objective reliability of the confession and not merely with the conduct of any police officer or other person to whom the confession was made. Accordingly the court might have to look at what was said or done by the person making the confession, because the confession might have been made ‘in consequence’ of what he himself had said or done and his words or actions might indicate that this confession was or might be unreliable. In our judgment the words ‘said or done’ in section 76(2)(b) of the 1984 Act do not extend so as to include anything said or done by the person making the confession. It is clear from the wording of the section and the use of the words ‘in consequence’ that a causal link must be shown between what was said or done and the subsequent confession. In our view it necessarily follows that ‘anything said or done’ is limited to something external to the person making the confession and to something which is likely to have some influence on him.
