202400718 B1 - [2025] EWCA Crim 959

Section 76 of the Police and Criminal Evidence Act 1984 provides 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.”

Two preliminary points must be made. First, section 76 concerns the admissibility of confessions. This appeal does not concern issues of admissibility because the transcripts of the prison calls were admitted, mostly by agreement (with some agreed redactions and summaries); two transcripts were admitted following the judge’s dismissal of an unsuccessful defence challenge to admissibility on grounds of relevance. This appeal concerns the judge’s directions to the jury in consequence of the admission of that evidence. That is not a matter to which s 76(2) applies directly. Secondly, no issue of oppression within section 76(2)(a) arises. Rather, the appeal turns on whether, on the facts of this case, anything was said or done which was likely to render the appellant’s confessions in consequence of what was said and done unreliable. This is to focus on section 76(2)(b). The formulation in section 76(2)(b) is sometimes referred to as “improper means” as a shorthand (see, for example, Mushtaq [2005] UKHL 25 at para 30; we will return to that case shortly).

This Court considered the meaning of section 76(2)(b) in R v Goldenberg (1989) 88 Cr App R 285. That case involved a heroin addict arrested for drug offences; five days after his arrest he requested an interview with police in which he made admissions against his own interest. It was submitted at trial that his admissions were motivated by his desire to secure bail or credit for assisting the police and that the confession should be excluded under s 76(2)(b). The trial judge rejected that submission and this Court dismissed the appeal in the following terms (per Neill LJ at p 290):

“It was submitted on behalf of the appellant that in a case to which section 76(2)(b) of the 1984 Act applies, 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 judgement 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.”

It is therefore established that in order to come within s 76(2)(b), the improper means must be the cause of the confession, must be something external to the person making the confession, and must be something which is likely to have some influence on him.