Vinson Ariste v The King
| Jurisdiction | UK Non-devolved |
| Judge | Lord Kitchin,Lord Burrows |
| Judgment Date | 31 May 2023 |
| Neutral Citation | [2023] UKPC 18 |
| Court | Privy Council |
| Docket Number | Privy Council Appeal No 0010 of 2019 |
[2023] UKPC 18
Lord Lloyd-Jones
Lord Kitchin
Lord Hamblen
Lord Leggatt
Lord Burrows
Privy Council Appeal No 0010 of 2019
Privy Council
From the Court of Appeal of the Commonwealth of the Bahamas
Appellant
Paul Bowen KC
Emma Mockford
Jagoda Klimowicz
Krysta A Mason Smith
(Instructed by Simons Muirhead Burton LLP)
Respondent
Rowan Pennington-Benton
(Instructed by Charles Russell Speechlys LLP (London))
Heard on 28 March 2023
Lord Kitchin AND
On 16 July 2010, Andrea Donaldson was robbed at gunpoint by a number of men. The appellant, Vinson Ariste, who was aged 20 at the time, was arrested by the police at his home on 21 July 2010. It appears that the police were looking for his brother but, on finding that the brother was not at home and that his whereabouts were unknown, arrested the appellant instead. The appellant was detained in police custody between 21 and 27 July 2010. Between 22 and 25 July 2010, he confessed, during police interviews, to a number of offences including the robbery of Ms Donaldson. His confessions covered at least six offences or sets of offences, apart from the robbery of Ms Donaldson, including murder. At the time, he had no previous convictions and, apart from his confession, there was no other evidence linking him to the robbery of Ms Donaldson (or, it would appear, to any of the other offences which he admitted).
No audio or video recording was made of the interviews conducted by the police. But if the record of the interview in which the appellant confessed to the robbery of Ms Donaldson read out at his trial is to be believed, he volunteered a full account of his participation in this offence purely of his own accord without any encouragement and without being confronted with any evidence implicating him in the robbery. The respondent has not suggested any motive for this unusual act of self-sacrifice.
The appellant alleges that the confession was untrue and was not made voluntarily but was made by him as a result of being beaten and suffocated with a bag and water by the police (and impliedly he makes the same allegation about the other confessions). When he arrived in police custody, the detention record stated that the appellant appeared well and in good health. When he was transferred to prison on 27 July 2010, the prison doctor recorded that he had a number of injuries including a temporal abrasion, multiple handcuff abrasions, a skin avulsion on the left wrist, bruising of the buttocks, and a 6cm abrasion or ulcer on his right buttock. The doctor also records that the appellant told him that he had been beaten by the police on his arrest on 21 July 2010.
The appellant had no legal representation at the time of his detention. He alleges that he had asked for a lawyer and the police officers had beaten him and told him that he did not need a lawyer. At the trial in March 2012, the appellant again had no legal representation. He alleges that he asked for the court to appoint a lawyer for him but that that request was refused by the judge.
The judge, after a voir dire but without giving any reasons, decided that the confession was admissible. On the basis of the confession the appellant was found guilty by the jury of the armed robbery and, on 5 June 2012, he was sentenced to 15 years imprisonment. In a very short judgment, his appeal against conviction was dismissed by the Court of Appeal on 18 February 2013. Permission to appeal was granted by the Board on 31 March 2021.
The appellant contends that, on the grounds of appeal set out below, his appeal against conviction should be allowed, applying section 13(1) of the Court of Appeal Act 2006 (see para 8 below), because his conviction is unsafe or unsatisfactory; or because there has here been a wrong decision or misdirection by the judge on a question of law or fact; or that he did not receive a fair trial. He also contends that the proviso under section 13(1) does not apply because there has been a serious miscarriage of justice. His grounds of appeal are:
(i) Ground 1: the lack of legal representation at the time of his original detention and questioning was a breach of his rights under Articles 19(2), 20(1) and 20(2)(d) of the Constitution of the Commonwealth of the Bahamas.
(ii) Ground 2: his lack of legal representation at the time of the trial breached his right to a fair trial.
(iii) Ground 3: the judge with conduct of the trial erred in finding, beyond reasonable doubt, that the appellant's confession had not been obtained by oppression and could therefore be admitted.
(iv) Ground 4: inadequate directions were given to the jury by the trial judge in relation to the confession and evidence going to the appellant's character.
It is convenient to deal initially with the grounds of appeal relating to the confession (that is to say, grounds 3 and 4). It is only if those grounds fail that it will be necessary to go on to consider grounds 1 and 2.
Section 13(1) of the Court of Appeal Act 2006 lays down the alternative tests that are to be applied by the Court of Appeal (and, at one stage removed, by the Board) in deciding whether to allow an appeal against conviction. That section reads as follows:
“ 13. Determination of criminal appeals
(1) After the coming into operation of this section, the court on any such appeal against conviction shall allow the appeal if the court thinks that the verdict should be set aside on the grounds that —
(a) under all the circumstances of the case it is unsafe or unsatisfactory;
(b) it is unreasonable or cannot be supported having regard to the evidence;
(c) there was a wrong decision or misdirection on any question of law or fact;
(d) in the course of the trial, there was a material illegality or irregularity substantially affecting the merits of the case; or
(e) the appellant did not receive a fair trial,
and in any other case shall dismiss the appeal:
Provided that the court may, notwithstanding that it is of the opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if the court considers that no miscarriage of justice has actually occurred.”
The appellant here invokes section 13(1)(a), (c) and (e) and submits that there has been a serious miscarriage of justice so that the proviso does not apply.
The relevant statutory provision in respect of the admissibility of confession evidence is section 20 of the Evidence Act 1996. This reads, so far as relevant:
“ 20. Admissibility of 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 fact 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 —
(a) was or may have been obtained by oppression of the person who made it; or
(b) is rendered unreliable by reason of anything said or done or omitted to be said or done in the circumstances existing at the time,
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.
(3) …
(4) …
(5) In this Act —
‘confession’ includes any statement wholly or partly adverse to the person who made it, whether made to a person in authority or not and whether made in words or otherwise;
‘oppression’ includes torture, inhuman or degrading treatment, and the use of threat of violence (whether or not amounting to torture).”
In relation to ground 3, the crucial decision to admit the appellant's confession in evidence against him was taken after a voir dire. That voir dire was heard by the trial judge, Turner J, at the start of the trial in the absence of the jury on 6–7 March 2012. The appellant was not legally represented. Four police officers, namely Constable Benson Miller, Constable Kimeo Patrico Smith, Constable Dion Marcus Ranger and Detective Sergeant Michael Anthony Johnson gave evidence. All of the police officers denied that the appellant had been subjected to any ill-treatment. Detective Sergeant Johnson's evidence was that the appellant had told him that the bruise to the right side of his face had been caused by a rock that was thrown at him. He said he did not observe any injuries to the appellant's wrists. Officer Ranger's evidence was that he observed the appellant to have a scratch on the side of his face and that the appellant had told him that this was caused as a result of being struck to the face with a rock prior to him being arrested. He also gave evidence that the appellant had been in a car accident following a police pursuit. It was accepted at the voir dire by the doctor, Dr Johnson, who examined the appellant on 28 July 2010, that the appellant's injuries could have been caused by this alleged accident.
The appellant in cross-examination raised with two of the officers (Miller and Ranger), and they did not dispute this, that, although they claimed that he had injuries including to his face when he came into the police station, there was no record of any injuries in the police detention record.
The appellant gave evidence that the police had beaten him with a cutlass and a baseball bat and had also suffocated him with a bag and...
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