Neutral Citation Number: [2010] EWCA Crim 2799
Case No: 201001554/C4 
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2A 2LL 
 
Date: Friday, 5th November 2010
 
B e f o r e:
LORD JUSTICE GROSS 
 
MR JUSTICE HEDLEY 

MR JUSTICE RAMSEY 
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R E G I N A 

v 

BARNABY WILDING
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Miss N May appeared on behalf of the Appellant  
Mr D Holborn appeared on behalf of the Crown  
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J U D G M E N T 

1.	LORD JUSTICE GROSS:  On 19th February 2010 in the County Court at Chelmsford before His Honour Judge Ball QC, following a trial, the appellant, now aged 21, was convicted of sexual activity with a female child under 16.  On 29th March 2010 he was sentenced to 1 year imprisonment, suspended for 2 years.  He appeals against conviction by leave of the single judge.
2.	The underlying facts can be very shortly summarised.  On 20th December 2008 the appellant had sexual intercourse with a girl to whom we shall refer as GC.  In the event GC was 15 at that time and the appellant 20.  GC initially made a complaint to the police but was a reluctant witness with whom the police lost contact before trial.
3.	The prosecution case was that the appellant had sexual intercourse with the complainant knowing that she was only 15.
4.	The complainant was unavailable at trial and, understandably, no hearsay application was made.  The appellant's admissions in interviews were relied upon and indeed constituted the sole evidence against him.
5.	The defence case was that the appellant did not learn GC's true age until after he had sexual intercourse with her.  He had believed her to be 16.  He had not raised this point  in interview.
6.	The defence objected to the admissibility of the interview on the basis that the appellant had psychological difficulties and should have had the benefit of an appropriate adult.  The judge rejected this submission and the defence called expert evidence from a psychologist, Dr Fox, regarding the appellant's vulnerability in interview.  It is right to say that the defence objection to the admissibility of the interview had itself been based on the evidence obtained from Dr Fox.
7.	The issue for the jury was straightforward:  whether the appellant knew the complainant's true age and the reliability of his admissions or apparent admissions in interview that he did.  As already underlined, there was no evidence against the appellant other than his own admissions in interview.
8.	Against this background the ground of appeal is as follows.  The judge erred in failing to exclude the appellant's interview on the basis that it was unreliable under section 76(2)(b) of the Police and Criminal Evidence Act 1984 because the appellant was interviewed without the presence of an appropriate adult.
9.	Originally there was a further ground, under section 78 of the Police and Criminal Evidence Act 1984; but, realistically, if we may say so, counsel today has accepted that either she succeeds under section 76, in which case she does not need section 78 or, if she fails under section 76, then section 78 would not assist her.  Accordingly the argument today has focussed entirely on section 76 of the 1984 Act.  
10.	Without more ado, we turn to the provisions of section 76, in so far as here material:  
"(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 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...  
 (b) (b) in consequence of anything said or done which would 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 (not notwithstanding that it may be true) was not obtained as aforesaid."
11.	The applicable principles appear from the decision in the case of R v Gill [2004] EWCA Crim 3245, at paragraph 68: 
"(1) When an application is made under section 76 the court does not consider the reliability of the confession which has been made, but a hypothetical question.  The court must decide whether, in the circumstances prevailing at the time, there is a likelihood any confession made at that time would be unreliable.  
(2) The words 'anything said or done' are wide enough to include an omission, for example, to interview a suspect without the presence of an appropriate adult, in circumstances where the Code of Conduct requires one to be present.  
(3) It may, in some cases, be material to consider whether a breach of the Code has occurred, but where, as in this case, it was not known to the police at the time, that the intelligence quotient of the applicant placed him in a category which entitled him to the presence of an appropriate adult, it is the consequences of the loss of the protection which the Code intended him to have, not whether there has been a breach, which is relevant.  
(4) The relevant question is whether, having regard to the purpose for which an appropriate adult is required, the absence on this occasion of the protection which such presence would have provided is likely to have rendered any confession made at that time unreliable.  In short, would the presence of an appropriate adult have made any difference?"
12.	We turn to the ruling of the judge in which he declined to exclude the interview.  The judge recorded the defence submission that the appellant's admissions in interview ought not to be admitted.  The basis, as we have already recounted, was that he had been interviewed without the presence of an appropriate adult.  The judge referred to Gill and indeed to the principles we have just set out.
13.	The judge had regard to the expert evidence of Dr Fox, of whom we have already made mention and of the appellant's mother, in relation to the appellant's low IQ and intellectual functioning.  There was no doubt that he was challenged in a number of these areas.  The judge recorded that he had a history of special needs and ADHD.  Dr Fox expressed the view that an appropriate adult should have been present. The judge concluded, however, that the appellant was not so vulnerable or disadvantaged to have required the presence of an appropriate adult.  There was therefore no omission which had rendered the interview unreliable.  There was no doubt that the appellant was being questioned about an incident very shortly after it occurred.  He had a clear and detailed recollection of events.  The manner of the questioning was gentle, civilised and sympathetic.  The appellant had also volunteered significant information unprompted.  Further, the appellant had declined legal advice on the basis that he was happy to be telling the truth.  He gave a coherent and consistent account.
14.	In his ruling, the judge in addition ‑‑ it is plain that it formed a significant part of his reasoning ‑‑ made it clear that he had regard to the interview itself:  
"The content, the phraseology, the very feel of that interview."
15.	We turn to the rival cases on appeal, acknowledging at once, as we do so, the very helpful arguments advanced by Miss May, for the appellant, and by Mr Holborn for the Crown.  We are grateful to them both.
16.	For the defence Miss May says that the judge erred.  He placed too much weight on the court's experience and too little on the evidence of the psychologist, Dr Fox.  Notwithstanding appearances, the appellant did not understand the investigative process and the seriousness of the situation in which he was.  The presence of an appropriate adult is desirable to ensure that a vulnerable detainee is aware of his options and rights.  Had an appropriate adult been present he or she would have sought to ensure that the appellant had the advice of a solicitor before being interviewed.  If so, he might have made no admissions at all.
17.	The whole purpose of having a solicitor or appropriate adult is to assist vulnerable individuals in their understanding of the legal process and their rights.  One of those rights is to give no comment answers in interview.
18.	For the Crown Mr Holborn, very carefully set out the extensive admissions or apparent admissions in the interview itself.  Those were, as we have already indicated, much relied on by the judge.  We can understand both why Mr Holborn placed emphasis upon them and why the judge did so.  Mr Holborn submitted that the judge applied the Gill test correctly.  He also submitted that on Dr Fox's evidence as a whole, there was a pointer to the interview itself having been reliable and indeed the reliability of any interview likely to be given in the circumstances.  Mr Holborn submitted that the court should not engage in speculation and that, in this case, the absence of an appropriate adult was not likely to render any confession made at the time unreliable in all the circumstances.  The court was entitled, as the judge did, to have regard to its own experience in dealing with these matters.
19.	Pausing there we remind ourselves that the focus of section 76 is not on the reliability of the actual confession ‑ albeit we certainly do not say that the court cannot take what was actually said into account in considering whether the absence of an appropriate adult is likely to have rendered the confession unreliable.  In so far as the actual confession is considered, care must however be taken to ensure that the focus remains as it should be on the enquiry contained in the statute and summarised in Gill proposition (4):  namely, whether the absence of an appropriate adult would have made no difference, or in words of the statute, whether that absence was likely to render unreliable any confession which might be made.  We also accept that a court is entitled in undertaking this enquiry to take into account its own experience.  The answer to any such enquiry must be fact specific and we underline that what we have to say in due course will turn on the particular facts of this case.  
20.	As to the role of the appropriate adult it is helpfully summarised in Archbold paragraph 15‑490.  That role includes a number of matters, ensuring that the detainee fully understands his rights, ensuring that the interview is conducted correctly and ensuring the police do not abuse the position, ensuring that the accused is able to make himself clearly understood and ensuring that the accused clearly understands what is put to him.  There is, as we repeat, no criticism of the police in this case, but there are important features of the duties of an appropriate adult which we venture to highlight, first and foremost, to ensure that the accused fully understands his rights and understands the position in which he finds himself.
21.	In this case the appellant had been arrested on suspicion of rape.  The context in which the interview was conducted was grave.  That, ultimately, he faced a lesser charge does not lessen the gravity of the position in which he found himself.  We repeat, again, that the question is not one of fault on the part of the police officers in this case.  Rightly, Miss May suggests no fault.  They were not to know of the appellant's vulnerability.  But sometimes all is not what it seems.  The question in this case is one of objective evaluation, in the event, after the fact, as to which side of the line this case fell, in terms of section 76(2)(b).
22.	It is common ground, rightly, that the appellant was vulnerable and that it would have been desirable, had it been appreciated at the time, that an appropriate adult should attend.  As to vulnerability, Dr Fox's evidence, which it is unnecessary to set out at length, included conclusions as to the appellant's doubtful reliability, ability to deal with matters sequentially, of great importance in this case for obvious reasons, susceptibility and moreover his errors in recounting simple details.  He was plainly and admittedly within the definition of vulnerable people within the code.  We have no reason whatever to think that had the police been in possession of this evidence at the time, they would not have hesitated in waiting for an appropriate adult before proceeding.  
23.	For our part, we very much doubt that the appellant had any true understanding of the nature of the criminal investigation and its seriousness for him.  He certainly had no or no proper understanding of his rights and we say that, notwithstanding the fact that when on his own in the interview, he declined the assistance of a solicitor.  We remind ourselves that in the event the sole evidence in the case against him consists of his admissions, though that was not known at the time of the interview.
24.	The arguments, in our judgment, are finely balanced.  But against this background, we are ultimately unable to accept that the interview was properly admitted into evidence.  We are conscious that in reaching this conclusion, we are differing from a decision of an experienced judge.  We do so cautiously and with respect.  But we fear that the judge focussed too much on the actual interview and we can understand very well what he said about that, rather than on the prior question as required by section 76(2)(b) and the authority of Gill.  As we see it, had an appropriate adult been there, a solicitor in all probability have been instructed.  What would have happened thereafter is necessarily speculative but there must be at the least a realistic likelihood that no admissions would have been made.  This is one of those, no doubt relatively rare cases, when after the event it turns out that an appropriate adult should have been there and, answering the question posed in Gill would likely have made a difference.  we emphasise that this is a conclusion to which we come on the particular and specific facts as to this appellant's vulnerability.  It is of no more general application than that.
25.	We think, on those facts, and having seen both the appellant and his mother in court today, that this is a just conclusion albeit, we repeat, we attribute no fault to the officers in the case for not appreciating the true situation.  Accordingly, the appeal must be allowed and the conviction quashed.  
26.	We add only this, for the benefit of the appellant and his mother, and we hope they will both pay attention.  We hope that this close encounter with the criminal justice system will serve as a warning and that the appellant, assisted by those who care for him, will steer well clear of it in the future.