Andrew Vout for the appellant; Giles Curtis-Raleigh for the Crown. Admissibility – Confessions – Theft – Trial within a trial R v Bhavna Dhorajiwala: CA (Crim Div) (Lord Justice Aikens, Mr Justice Slade, Judge Wadsworth QC): 9 June 2010 The appellant (D) appealed against her conviction on seven counts of theft. D was a pharmacist. It was alleged that D had stolen money from the till of the pharmacy where she worked. D claimed that she did not put certain transactions through the till because her employer had instructed her to pass money from certain sales directly to him. The judge had admitted in evidence an interview conducted at the pharmacy by two members of the investigation agency in the course of which D made confessions. Two employees of the investigation agency had introduced themselves to D as she worked, shown her their ID cards, and conducted an interview after cautioning her. It was D’s case that she had been prevented from leaving the interview room; had not been allowed access to legal advice; was threatened that the consequence of what she was alleged to have done was prison; and that the interview had been conducted in a threatening manner. D submitted that the judge was wrong to admit the interview in evidence because the procedure adopted at the interview was in breach of several provisions of the Police and Criminal Evidence Act 1984 Codes of Practice, and that 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 act. D also argued that the interview amounted to a confession by D for the purposes of section 76 of the act and that the confession might have been obtained by the oppression of D; or, alternatively, that the confession had been obtained in consequence of the things said and done by the interviewers. D also submitted that in either case the court should not have allowed the confession to be given in evidence against D, except in so far as the prosecution proved to the court, beyond reasonable doubt, that the confession had not been obtained by oppression or as a result of the interviewers’ reference to prison. Held: (1) It was common ground that the interview amounted to a confession by D. A statement by responsible counsel, on the basis of documents or a proof of evidence in his possession at the time of speaking, that the confession was or might 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, was a ‘representation’ for the purposes of section 76(2) of the act. D had based her application on the basis of the manuscript record of the interview and a proof of evidence in which she said she felt oppressed by the circumstances and that she made the confession because of them. Therefore, what D said to the judge undoubtedly constituted a representation for the purposes of section 76(2). (2) The judge 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. The judge was wrong to conclude, as he effectively did, that no reasonable argument could be raised on either limb of section 76(2). D’s evidence was that she had been prevented from leaving the interview room; she had not been allowed access to legal advice; she was threatened that the consequence of what she was alleged to have done was prison; and the interview was conducted in a threatening manner. In those circumstances, 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. The court had 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 power should have been exercised. (3) 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, then it was 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. (4) There was a material failure in the procedure of the present case. The prosecution had therefore not proved, beyond reasonable doubt, that the confession contained in the interview fell foul of section 76(2)(a) and (b). The court should not have permitted the interview to be admitted in evidence and the conviction was unsafe. Appeal allowed.