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Confessions
The Voir Dire and the Police and Criminal Evidence Act 1984, s. 76
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At common law, where the admissibility of a confession statement was to be challenged in a trial on indictment, the following practice was followed:
The defence advocate would notify the prosecutor that an objection to admissibility was to be raised
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At the appropriate time the judge would conduct a trial on the voir dire to decide on the admissibility of the statement
Where the defence represent that a confession on which the prosecution propose to rely was, or may have been, obtained in such a way as to render it inadmissible in evidence
The court shall not allow the confession to be given in evidence except insofar as the prosecution prove to the court beyond reasonable doubt that the confession was not so obtained
Section 76(3) provides in addition that the court may of its own motion require the prosecution, as a condition of allowing them to give a confession in evidence, to prove that it was not obtained in such a way as to render it inadmissible
The voir dire therefore remains the correct procedure where objection is taken to the admission of a confession
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The court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it
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The power may be used in respect of confession evidence tendered by the prosecution , and numerous instances of its use for this purpose exist
The Court of Appeal will not interfere with the exercise of a trial judge's discretion to admit evidence under s. 78 unless satisfied that the decision was perverse
It was considered that the accused 'has the burden of persuading the court that it should exercise its power under s. 78' and that the burden is 'no higher than the balance of probabilities'
Where there is no issue of fact to be determined, the question of what fairness requires does not seem to be susceptible of analysis in terms of the burden of proof
For example, where D was interviewed on suspicion of conspiracy to supply controlled drugs
The admissions which he made were alleged by the defence to be (a) an attempt by him to get bail, and (b) tainted by the fact that he was a heroin addict who, having been in custody for some time, would have said or done anything, however false, to gain his release so as to feed his addiction
The Court of Appeal considered that this argument was founded entirely 'on what was said or done by the appellant himself and on his state of mind', and that this was beyond the scope of the provision
The wording of the section, and in particular the words 'in consequence' imported a causal link between what was said or done and the subsequent confession
It followed that the provision was looking to something external to the person making the confession and which was likely to have some effect in inducing a confession
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A confession cannot be rendered inadmissible under the PACE 1984, s. 76(2)(b), by reason only of something said or done by the accused
A self-induced incapacity is clearly relevant to the issue of discretionary exclusion under the PACE 1984, s. 78
A plea of guilty constitutes a confession for the purposes of the PACE 1984, s. 82(1)
Where such a plea has been retracted, the court may decide that it should not be given in evidence by the prosecution because of the adverse effect on the fairness of the proceedings, invoking s. 78
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A retracted plea of guilty may also, where relevant, be relied upon as a confession by a co-accused
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An admission made by an accused in other proceedings would similarly constitute a confession for the purposes of the 1984 Act, and could be relied upon provided, as is likely, that it complies with the provisions of s. 76(2) and (which may be more doubtful) that it is not excluded under s. 78
As to the position where a pre-trial statement such as a defence case statement is relied upon against
A plea in mitigation made by counsel on behalf of a client who has been convicted following a plea of 'not guilty' should not be understood as a confession by the convicted person through counsel
So to regard it would be both unjust and unrealistic, as it is counsel's duty to accept the verdict and seek to mitigate the consequences
It is submitted that the same must be true if the convicted person advances the mitigation in person
It was held by the Privy Council (applying common-law principles) that the re-enactment was to be regarded as a confession
Such a film would also constitute a confession under s. 82(1), and may be given in evidence, provided that the conditions of admissibility under the 1984 Act are satisfied
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For example, driving away at speed from the scene of an accident is not a confession to which the 1984 Act applies, though evidence of such conduct would be relevant and admissible
Police and Criminal Evidence Act 1984, s. 78
The court is obliged to hear evidence about the obtaining of the confession (as the prosecution have to prove that the confession was not obtained in the manner forbidden by s. 76)
Where the admissibility of prosecution evidence falls to be considered under the general exclusionary power in s. 78, the court has a discretion to hear evidence on the issue of admissibility but is not obliged to do so (and so may rule on the matter following submissions on behalf of the parties)
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In some cases, the justices should deal with an application to exclude evidence when it arises
But in other cases, they may leave the decision until the end of the hearing
It is generally better for the magistrates to hear all the prosecution evidence (including the disputed evidence) before considering an application to exclude evidence under s. 78
The magistrates may hear the evidence, even if they subsequently exclude it due to unfairness and so proceed to determine the case without considering the excluded evidence
This does of course leave the justices with the very difficult (some might say impossible) task of putting from their minds prejudicial evidence that they have heard but then decide is inadmissible
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But in s. 82(1) it is of the expression 'whether made in words or otherwise' suggests that 'confession' may, in addition to admissions in oral or written form, include conduct such as a nod of acceptance of an accusation or a 'thumbs-up' sign which may be properly regarded as a 'statement' in sign language
That the conditions of admissibility should be the same for re-enactments or visual demonstrations as for oral or written confessions
It is submitted that conduct which is not intended to convey guilt, but which may be interpreted as doing so, is not a 'statement' and hence not a confession
In any proceedings where the prosecution proposes to give in evidence a confession made by an accused person, the court may of its own motion require the prosecution, as a condition of allowing it to do so, to prove that the confession was not obtained as mentioned
Section 76 appears not to have been intended as a mechanism for regulating the admissibility of a confession made by one co-accused as evidence for another
The prosecution do not have to prove the admissibility of a confession upon which they rely unless either (a) the defence 'represents' that it is inadmissible under s. 76(2), or (b) the court of its own motion requires proof of admissibility under s. 76(3)
If in either case the prosecution cannot prove admissibility beyond reasonable doubt, the confession must be excluded, notwithstanding that it may be true: the court has no discretion in the matter
A court should be particularly vigilant to scrutinise a confession that is the sole evidence relied upon by the prosecution, and to serious matters that 'should have been troubling' the trial judge who had admitted the confession, including the denial of legal advice and evidence suggesting that D had been beaten
It was inherently improbable that during three days in detention D would voluntarily have confessed, without a lawyer, to at least six offences or groups of offences, including murder, for which there was no independent evidence
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A confession which is inadmissible in criminal proceedings in consequence of s. 76 should not be used as the basis for a formal caution
'Anything said or done'
Section 76(2) of the PACE 1984 obliges the judge to consider everything said or done (usually, but not inevitably by the police) and not to confine the inquiry to a narrow analysis analogous to offer and acceptance in the law of contract
The use of the phrase 'anything said or done', and the inclusion of all the surrounding circumstances, are indications that a confession may be inadmissible, notwithstanding that the police have not behaved improperly
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For example, a case in which a psychopathically disordered woman of low normal intelligence heard her lover confess to a murder
As this experience may have led her to make a false confession out of a child-like desire to protect her lover, her statement was excluded under s. 76(2)(b
It was noted that where the solicitor provides proper legal advice to the client this will not normally be a basis for excluding a confession under s. 76(2)(b)
Where an appropriate adult was the 'unwilling recipient of unsolicited confessions' by an accused, and nothing was said either by the adult or anyone else that was likely to render the confession unreliable
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It was said to be desirable that the provisions of Code C which are designed to ensure that interviews are fully recorded and the suspect afforded an opportunity to contest the record be 'strictly complied with', and that the courts would not be slow to exclude evidence obtained following 'substantial breaches' by the interrogator
It was held that the statement was 'not a matter of rote' so the breach does not automatically result in exclusion
For example, evidence of a conversation with a police officer in Portuguese should have been excluded because of the attendant risk of misunderstanding
Discovery of Facts
The definition of 'confession' as including 'any statement wholly or partly adverse to the person who made it … whether made in words or otherwise'
Where D made a full confession to receiving stolen goods, in consequence of which the goods were found concealed in her bed
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Principles of Admissibility under the Police and Criminal Evidence Act 1984, s. 76
A confession made by an accused person may be given in evidence against him insofar as it is relevant to any matter in issue in the proceedings and is not excluded by the court
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—
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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 insofar as the prosecution proves to the court beyond reasonable doubt that the confession (notwithstanding that it may be true) was not obtained as aforesaid
Although of the opinion that the bullying and hectoring of D in interview would have been oppressive even with a suspect of normal intelligence, went out of its way to stress the effect on D, who was on the borderline of mental handicap
Bad Faith
The presence of bad faith where the police have acted in breach of the Act or Code is a factor making it more likely that evidence will be excluded
There is a distinction to be drawn between cases where the police have acted in bad faith, and cases where the police, albeit in good faith, have fallen foul
Although bad faith may make substantial or significant that which might not otherwise be so, the contrary does not follow
Breaches which are in themselves significant and substantial are not rendered otherwise by the good faith of the officers concerned
For example, a submission was made that, in the absence of impropriety, the discretion should never be exercised to exclude admissible evidence
The Court of Appeal had 'no hesitation in rejecting that submission, although the propriety or otherwise of the way in which the evidence was obtained is something which a court is, in terms, enjoined by the section to take into account'
The Voir Dire and the Police and Criminal Evidence Act 1984, s. 78
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It does not necessarily follow from this that a voir dire should always be held; indeed, it has been said that in a summary trial the defence have no right to a voir dire simply in order to determine a preliminary
However, in many cases it will be convenient to investigate the submission in this way, particularly where the defence also challenge the confession under s. 76,
If, in connection with an application to exclude evidence under s. 78 alone, the accused wished to proceed by way of a trial within a trial, magistrates might find it necessary to proceed in that way in order to allow the accused to give evidence in relation to the evidential issue without prejudicing the right to silence at trial
Questions which are not strictly questions of law, although if the application of s. 78 goes to the heart of the proceedings it may be convenient to deal with it as an interlocutory matter
Admissibility of Evidence Obtained Unlawfully, Improperly or Unfairly
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At common law it was held that the nature of oppression varied according to the character and attributes of the accused
Thus, an 'experienced professional criminal' might expect a vigorous interrogation
The trial judge 'was entitled to consider the type of men he was dealing with', all of whom were experienced criminals
For example, a middle-aged man of previous good character had been subjected to a lengthy, and in certain respects unlawful, interrogation, which was subsequently held to have been oppressive
It might be oppressive to put questions to an accused who is known to be mentally ill so as 'skilfully and deliberately' to induce a delusionary state
Confession Relevant to Show Speech, Writing or Expression
The case where D was charged with the murder of a woman, part of whose body was found in a parcel together with a handwritten note bearing the legend 'Bladie Belgiam'
D, who had not been cautioned, was asked by the police to write the words 'Bloody Belgian', which he did, misspelling them in precisely the same fashion as the writer of the note
The case did not concern an inadmissible confession, but the principle involved in the reception of the note in evidence that 'it cannot make any difference to the admissibility of handwriting whether it is written voluntarily or under compulsion of threats'
Where Cars had been damaged by scratching an obscene message to the owner, whose name was Justin, but which the vandal had spelt as 'Jutin'
When asked to write down the same message, D also spelt the name incorrectly
On the assumption that the misspelling constituted a confession, the Court of Appeal found that there had been nothing said or done to render the statement inadmissible under s. 76, but that, even if it had been otherwise, s. 76(4)(b) would have rendered the misspelling admissible
Section 76(4)(b) might also be used, for example, in a case of rape, where a tape-recorded confession is ruled inadmissible, but the voice of the accused can be heard speaking with an unusual speech impediment which was also described by the victim, or with a particular local accent
Care must be taken to avoid prejudice to the accused when adducing such evidence; permits the prosecution to adduce only 'so much of the confession as is necessary to show' the relevant feature,
But even this may in some cases be impossible without the jury becoming aware that a confession has been made
For example, where D was denied access to legal advice, and it was common ground that there had been a breach of the PACE 1984, s. 58
The Court of Appeal observed the main object of section 58 of the Act and indeed of the codes of practice is to achieve fairness — to an accused or suspected person so as, among other things, to preserve and protect his legal rights
To our minds it follows that if there are significant and substantial breaches of section 58 or the provisions of the code, then prima facie at least the standards of fairness set by Parliament have not been met
So far as a defendant is concerned, it seems to us also to follow that to admit evidence against him which has been obtained in circumstances where these standards have not been met, cannot but have an adverse effect on the fairness of the proceedings
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But also fairness for the Crown and its officers so that again, among other things, there might be reduced the incidence or effectiveness of unfounded allegations of malpractice
The intentional infliction of severe pain or suffering on another by a public official in the performance or purported performance of official duties
'Torture and inhuman or degrading treatment' is also prohibited by the ECHR, Article 3, and reference may be made to case law under Article 3
Exclusion for Oppression: Police and Criminal Evidence Act 1984, s. 76(2)(a) Definition of Oppression
Police and Criminal Evidence Act 1984, s. 76
Oppression' includes torture, inhuman or degrading treatment, and the use or threat of violence (whether or not amounting to torture)
The reference to 'torture' may be interpreted in the light of the offence of torture contained in the CJA 1988, s. 134
In the interpretation of which the proper course is to start by ascertaining the natural meaning of the language used, uninfluenced by any considerations derived from the previous state of the law
It was further stated that much of the sort of treatment which would have fallen within the wider definition of oppression at common law will now fall to be dealt with under the 'reliability' head of exclusion
D claimed that the confession was made in order to secure her release from custody after a police officer had revealed, to D's great distress, not only that her boyfriend had been unfaithful to her, but also that the 'other woman' was being held in the cell next to D's
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The PACE 1984 requires the trial judge to consider a hypothetical question: not whether this confession is unreliable, but whether any confession which the accused might make in consequence of what was said or done was likely to be rendered unreliable
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Thus the court must consider whether what happened was likely in the circumstances to induce an unreliable confession to the offence in question, and to ignore any evidence suggesting that the actual confession was reliable
The Court of Appeal held that the question the judge had posed in ruling in favour of admissibility was the correct one of whether the matters relied on by the defence were 'likely' to induce a false confession
Although the judge may not be influenced by evidence that the confession is true in deciding admissibility, there is no rule against taking into account any other relevant evidence given at trial before the voir dire begins which assists in determining the questions posed by s. 76(2)(b)
Such evidence must, however, relate to the period before, or at the time when, the confession is made: the judge must 'stop the clock' and consider the issue of reliability at that point in time (a proposition cautiously, but rightly
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It is common for the defence to allege that the 'something said or done' includes a breach by the police of an obligation under the PACE 1984 or the Code of Practice for the Detention, Treatment and Questioning of Persons by Police Officers
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Though it may, on its own or together with other factors, provide evidence that s. 76(2)(b) has not been complied with
For example, D whose psychological make-up was such that he was likely to feel unusual pressure to escape from interrogation, alleged that he had been induced to confess by a suggestion that the serious indecent assault of which he was suspected was more deserving of treatment than punishment
The interview was not recorded until the following day, in breach of Code C
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Breach of a relevant code provision does not lead to the automatic exclusion of a confession obtained in consequence
The question is whether the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it. Even a plain and admitted breach, though it is to be deplored, may fail to trigger exclusion if it does not operate in a way prejudicial to the accused
It was held that breach of a PACE Code C provision designed to protect another suspect could not be prayed in aid by the accused
This was because there was no causal link between the breaches and D's admission. On the facts, however, had the Code been complied with, it might have resulted in a record which would have supported D's contention that the other accused, to whom D subsequently confessed, was acting in the role of police agent in soliciting the confession
Breach of a code of practice is in many cases an important factor in considering whether to exclude evidence
Where confession evidence is concerned, the code most likely to be involved is Code C, dealing with the detention, treatment and questioning of persons by police officers
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Admissibility of Evidence Obtained Unlawfully, Improperly or Unfairly General Rule of Admissibility
Where evidence has been obtained illegally, the court may exercise its power, in appropriate circumstances, to stay proceedings
However, where proceedings have not been stayed then, subject to the exceptions considered evidence obtained unlawfully, improperly or unfairly is admissible as a matter of law
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The test to be applied in considering whether evidence is admissible is whether it is relevant to the matters in issue
If it is, it is admissible and the court is not concerned with how the evidence was obtained
Evidence is admissible as a matter of law, therefore, if it has been obtained by any of the following means:
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Eavesdropping
Invasion of privacy in which evidence of an incriminating conversation was obtained by means of a secret electronic surveillance device
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The Court of Appeal held the act does not follow the wording of earlier rules or decisions, nor is it expressed to be a consolidating Act. It is a codifying Act
In Fulling, the prosecution tendered a confession by D in which she admitted her part in an insurance fraud initiated by her boyfriend
Where the alleged admissions related to facts that were not in dispute, and the remainder of the statement was purely self-serving, it was not a confession, with the result in that case that it could not be admitted under s. 76A at the behest of a co-accused who it exonerated
The Court of Appeal identified as suitable for full argument the question whether statements made by R in police interviews which went beyond admissions and were exculpatory of D constituted 'confessions' for the purposes
It was noted that not everything stated at the time of a partial admission is necessarily part of a 'confession'
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A confession may be 'wholly or partly adverse' to the maker, with the result that a so-called 'mixed statement', which is part confession and part exculpation, is a confession
Whether words amount to at least a partial confession is a question of fact separate and distinct from the question (where this is also in dispute) whether the words in question were spoken at all
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A confession made by an accused person is admissible insofar as it is relevant to any issue in the proceedings and is not excluded on the grounds of oppression or in consequence of anything said or done conducive to unreliability
The rule of admissibility has been extended to operate not only in favour of the prosecution but also for a co-accused
Section 82(1) makes it clear that 'confession' covers statements such as an informal admission to a friend or colleague, and is not limited to statements made to a person in authority, such as a police or customs officer
Meaning of Confession: Police and Criminal Evidence Act 1984, s. 82
'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
Most confessions are, however, made to persons in authority, and such confessions are the most likely to be challenged
Only a confession made 'by' an accused may be given in evidence 'against him', that where the only proof that the accused made the statement comes from the confession itself it should not be admitted
However where a passenger in a car gave D's personal details to a police officer when asked for his own, the statement was admissible as a 'confession' by D, who denied being the passenger
It is submitted that while this is a useful device for admitting a common form of evidence of identification, it was not a confession 'by' D unless the identity of the maker was shown to be D, which was the very point in dispute
The Court considered that the jury should be given a 'clear direction' in such cases not to rely on the statement unless they were sure, from its contents and such surrounding evidence as there was, that it was the appellant who made the statement
There is still an element of circularity in using the content to identify the maker, and the problem might be circumvented by treating the statement simply as a form of hearsay that might be admitted in the interests of justice under the CJA 2003, s. 114(1)(d)
A statement disclosing the identity of a driver was admissible as a confession if it could be inferred that the accused had written it, even though it was unsigned (and therefore inadmissible under the statutory scheme in the Road Traffic Act 1988)
It was proposed that a confession should not be excluded simply on the basis that it was obtained in consequence of a threat or inducement, unless the circumstances were such that any resulting confession would be likely to be unreliable
This proposal became the PACE 1984, s. 76(2)(b), though the term 'threat or inducement' was replaced by the wider notion of 'anything said or done'
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In assessing the effect on the fairness of the proceedings of a breach of the PACE 1984, s. 58, it is relevant that the right of access to legal advice is 'fundamental'
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is authority for a rule, derived from the ECHR, Article 6, and the ECtHR's decision that (save where compelling reasons may exceptionally justify denial of access to a lawyer without unduly prejudicing the defence) the prosecution cannot lead and rely upon evidence of anything said by an accused without the benefit of legal advice during questioning under detention at a police station
It was not necessary to apply the same strict principles to the questioning of a person not yet detained: whether there was a breach of Article 6 in such a case would depend on the circumstances
Domestic authorities under the PACE 1984, s. 78, do not currently reflect the same strict approach to questioning without benefit of legal advice, though it was noted that the discretionary nature of the statutory power 'sits a little uneasily' with the rule in Cadder
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Exclusion for Unreliability: Police and Criminal Evidence Act 1984, s. 76(2)(b)