COURT OF CRIMINAL APPEAL 188

BEFORE

MR. JUSTICE MELFORD STEVENSON, MR. JUSTICE 1868

April 11
PIDLLIMORE AND MR. JUSTICE THOMPSON

MARTIN PRIESTLEY

Evidence-Inducement-Precise Words no longer Appropriate Test

-Manner 0/ Modem AppToach-ProceduTe to be Followed by
Judge when Trying Issue.

A concept of inducement based on the construction of

precise words derived from a series of authorities decided before
the Criminal Evidence Act 1898 has today no reality in practice.
because it is essential in every case to look at the particular
facts relied on as an objection to the admissibility of a state-
ment on the ground of inducement by a person in authority,
remembering that the burden never shifts from the CrOWD of
proving that the alleged confession was in truth a voluntary
Btatement. The procedure to be followed by the judge in
deciding an issue of admissibility of evidence in such cases is
that indicated in C!.EARY (1964) 48 Cr.App.R. 116.

Appeal against conviction.

The appellant was convicted at Kent Assizes on November
26, 1965, of murder and was sentenced by Sachs J. to
imprisonment for life.
The victim of the murder was a 12-year-old girl named
Margaret Barrett. On September 25, 1965, after being the
victim of a brutal sexual attack, of which traces were left
on her and on her clothing, she had been strangled. There
was evidence that she had spent part of that afternoon with
the appellant, in whose company she was last seen alive at
6 p.m. at the edge of a wood, in which her dead body was
found at 9 a.m. next day.
The appellant was first seen by the police at 9 p.m. on
September 25. He first said that he had seen the girl in the
company of another girl and a boy. Later he said that he
spoke to her at 5 p.m. and later still that he had talked to
1840 COUllT OF CRIMINAL APPEAL

1966 her for one-and-a-half hours before leaving her at 5 p.m.

April 5
When questioned on the following afternoon, he admitted
that he had been with the girl in the wood. After the
appellant had made various conflicting statements the
inspector said: "You went into the wood with the girl and
something happened to her and I believe you were with her
when she died. If something came over you in the wood, you
should tell us. All your lies will not help you if there is a
simple explanation. Did something happen which you could
not help? I feel you want to tell the truth, but you are
ashamed of what occurred. She is dead and I would like to
know what happened." The appellant then said: " Where does
it leave me, though? You will be saying I murdered her. I
can tell you the truth if you can tell me what happens after for
me. " The inspector did not answer that inquiry, but said:
"You did not leave her alive then" and the appellant said
" No."
The appellant then made two statements, in both of which
he said the girl tried to make love to him. In the second
(exhibit 8) he said: " It was then that I pushed her off, holding
her throat with fingers and thumb at arm's length. I tried to
talk sense into her, telling her not to be so stupid, and a girl
of her age should not be chasing a man of my age. Meanwhile,
I was still holding her by the throat. Her lips turned blue,
her face went a peculiar colour. After talking sense into her I
let go of her throat. As soon as I let go, she dropped flat on
her back on the bracken." He went on to say that he became
terrified and ran away. When charged the same evening the
appellant said: "I can assure you I did not intend to
murder the child. I can assure you of that. The only thing
I can say is to give my apologies to her family for causing such
a disaster." Later, after repeating this in his cell, the appellant
added: "of course I quite liked the look of her from the
start."
At the trial objection was taken to the admissibility of the
appellant's statement, exhibit 8, on the ground that it was
not a voluntary statement, but one that was the result of an
 COURT OF CRIMINAL APPEAL 185

inducement by a person in authority. The judge, after hearing 1968

April 5
evidence in the ahsence of the jury, overruled the objection - - - -
and held that the statement was admissible. p~:~y

John Gower (B. Pryor with him), for the appellant. The
judge should have excluded the statement, exhibit 8, as not
being a voluntary statement. It became inadmissible in evi-
dence because it was the result of an inducement held out by a
person in authority. When the chief inspector said to the
appellant: "All your lies will not help you if there is a
simple explanation." Following on what he had previously
said, he was holding out an inducement or making a promise
of some benefit that would accrue to the appellant if he made
a statement: PARTRIDGE (1886) 7 C. & P. 551; WARRINGIlAM
(1851) 2 Den. 447n.; BATE (1871) 11 Cox 686; JARVIS (1867)
L.R. 1 C.C.R. 96. Alternatively, if there was not an induce-
ment in the strict sense held out by the chief inspector, the
manner in which he questioned the appellant amounted to
what is referred to as "oppression" in the preamble to the
new Judges' Rules, and the judge, in the exercise of his
discretion, should have excluded the statement on that ground.
Further, the summing-up was unsatisfactory in a number
of respects.
Edward Gardner, Q.C. (J. Streeter with him) for the Crown.
The judge was right in admitting the statement of the appel-
lant. No inducement was held out to the appellant by the
detective chief inspector. He was not told that it would be
better for him if he made a statement, as occurred in several
of the cases on which the appellant relies. When the appel-
lant asked the chief inspector whether he could " tell me what
happens after for me," the chief inspector was silent and made
no reference to any kind of future benefit. In approaching
the question of the admissibility of the confession, the judge
was careful to follow the ruling of this court in CLEARY (1964)
48 Cr.App.R. 116 and he gave the jury a careful direction on
this and all other relevant matters.
John Gower replied.
186 COURT OF CRIMINAL APPEAL

188& MELFORD STEVENSON J. [after stating the facts]: Much

April 5
of the strength of the prosecution's case upon the facts rested
MART"'
PBl1I8n.111' in the statement, exhibit 8, and the admissibility of that state-
ment was the subject of what is ordinarily called a trial within
a trial. It was suggested that that statement followed upon
an improper inducement held out by the police officer which
in fact induced the making of it. The evidence upon which
that contention is based is to be found during the progress of
the trial within a trial. Detective Chief Inspector Brownlow
was asked about the occasion at 5 p.m. on September 27.
"Q. . . . did you begin asking the accused further questions?
A. I did. Q. What did you say to the accused? A. I said to
him, 'You have now made a statement. In fact you have
made varying statements. First that you had not seen the
girl; then you had seen her but you did not go into the woods
with her, and left her talking to Clive. Then next you did go
into the wood with her. These varying statements cannot all
be true, and in any case they are contrary to what we know
from our inquiries. Something must have happened in the
wood and I do not think you are telling the truth.' He replied,
, But the statement I made is true.' I said, , We know what
times you were seen with the girl. We would like to know
what occurred in the wood.' I told him we were waiting to
hear from the pathologist what actually had happened to the
girl, but at present he was probably the only one who could
tell us. I said, 'You have told different stories to five police
officers. We now know of someone who saw you with the girl
after the boy Clive had gone past. What are you withholding? '
Priestley said, 'Mrs. Bristow [a resident in the same village as
the appellant] started this. She's got it in for me. You'll
believe her instead of me.' I said' We have not seen the
Bristows yet. All we know is that the girl is dead.' Priestley
said, , She wasn't dead when I left her.' I said to him, • The
girl was found some distance into the wood and yet you now
say you were only with her on the edge of the wood. Now
what is the truth about the girl, and what happened to her
in the wood? You also say you were not bothered about getting
 COURT OF CRIMINAL APPEAL 187

wet and now you say you went into the wood for shelter. 1966
April 5
You went into the wood with the girl and something happened
;-'IARTlIf
to her and I believe you were with her when she died. If PRIl!BTLEY
something came over you in the wood, you should tell us. Melford
All your lies will not help you if there is a simple explanation. SteveDSOD J,

Did something happen which you could not help? I feel you
want to tell the truth but you are ashamed of what occurred.
She is dead, and I would like to know what happened.' "
In that rather long passage, particularly the latter part of it
which begins" All your lies will not help you if there is a simple
explanation," it is suggested there resides an inducement, a
promise, some tempting benefit which will follow upon the
making of a statement, but it is most important to have regard
to what the applicant said in answer to the passage I have
just read out. He said: "'Where dot's it leave me, though?
You will be saying I murdered her. I can tell you the truth
if you can tell me what happens after for me." To that
inquiry, plainly and obviously directed to the question whether
or not there was some advantage to be gained for the accused
of any kind by making a statement or telling the truth, the
officer did not reply, but contented himself with saying: " You
did not leave her alive then." Even if the words that I first
read were capable of being an inducement, and in the view
of this court they were not reasonably so capable, it is plain
beyond argument that those words did not induce the making
of any statement by this applicant. It follows from the
officer's silence where he abstained from givmg any answer to
the question "I can tell you the truth if you can tell me
what happens after for me," and those considerations would,
in the view of this court, be sufficient by themselves to dispose
of so much of this appeal as is founded upon the statement,
exhibit 8, but it is right that we should emphasise that ques-
tions with regard to the admissibility of statements made by an
accused person raise in every case issues of fact, which depend
in their nature and subject-matter on the exact circumstances
of each individual case.
We have been invited by Mr. Gower, to whom we are
188 COURT OF CRIMINAL APPEAL

much indebted for a thorough and helpful argument, to

examine a number of authorities, most of them decided
before the Criminal Evidence Act 1898, whcn accused persons
Melford could not give evidence and great anxiety was naturally
SteveDIIOD J. and properly felt about the weight to be attached to any-

thing said by an accused person whose lips, once he was in

the court of trial, were sealed. From those cases there has
grown up a concept of inducement based upon the construction
of precise words in different case!;. JARVIS (1867) 1 C.C.R. 96 is
an example which has resulted in the attribution of an induce-
ment to a particular form of words. We do not think that
those authorities today have any reality in practice, because
it is essential in each case to look at the particular facts which
are relied upon in relation to an objection to the admissibility
of a statement to enable the matter to be determined, remem-
bering at all times that the burden never shifts from the Crown
to satisfy the court that an alleged confession is in truth a
voluntary statement.
This matter was very fully canvassed before the learned
judge at the trial. Every aspect of the authorities was gone
into and the learned judge came to the conclusion that he was
not, for himself, prepared to say that exhibit 8 was not admis-
sible. Therefore, the whole question of its admissibility, the
whole question whether it was the result of an inducement, a
promise, a threat or indeed what has been called. in this case
and is called in the preamble to the Judges' Rules oppression,
was fully and extensively canvassed before the jury who were,
in our opinion, properly directed on this, and on every other
aspect of this case. Having been so directed, the jury
obviously accepted exhibit 8 and, acting upon it, convicted
and no complaint can be made of the fact that they did so.
The learned judge in the course which he took followed the
procedure indicated in CLEARY (1964) 48 Cr.App.R. 116 and
he carried out what is there said to be the duty of a judge in
the circumstances in which he found himself.
[After referring to other criticisms of the summing-up His
Lordship continued:] We can find nothing in this summing-up
 COURT OF CRIMINAL APPEAL 189

that goes beyond the legitimate comments which a judge is 1966

April 5
not only entitled to make, but must make if he is adequately
MARTIN
to put before the jury the matters of fact that arise for their PBmSTLBY

consideration in the ('ourse of a case such as this was. I mean Melford

no disrespect to Mr. Gower, but I do not think I should be Steveo 1100 J.

doing any public service if I dealt in this judgment with a

close analysis of the various points he has made upon those
matters and I do not do so.
This appeal must be dismissed.
Appeal dismissed.

Solicitors: Kingsford, Flower & Pain, Ashford, for the appellant.

BEFORE

THE LORD CHIEF JUSTICE, MR. JUSTICE MARSHALL AND 1966

Ap-r. 20
MR. JUSTICE JAMES

DAVID WARREN EATON

False Pretences-Pledging of Jewellery by Defendant-Representa-

tion with regard to Ownership - Jewellery Obtained from
Jeweller-Jeu·eller himself Holding on Sale or Return Terms-
Conditions of Approbation Note-Factors Act 1889 (52 ~ 58
Viet. c. 45), s. 2-Sale of Goods Act 1898 (56 ~ 57 Vict. c. 71).
s. 18.

Section 18 of the Sale of Goods Act 1898 provides that,

unless a contrary intention appears, the rules for ascertaining
the intention of the parties with regard to the time wher.. the
property is to pass to the buyer shall be: ". • . Rule 4--
where goods are delivered to the buyer on approval or on
• sale or return' or other similar terms, the property passes
to the buyer:-(a) when he . . . does any . . . act adopting
the transaction .... "
The appellant represented to W., who was in the jewellery
trade, that he wished to make a present of jewellery. W.
handed over to the appellant three pieces of jewellery which
had been obtained by W. from P., a Hatton Garden jeweller,