Confessions
A confession is an admission made by a Defendant in criminal proceedings.
Under the Police and Criminal Evidence Act 1984 (PACE) section 82, a confession is defined as; "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".
The general rule is that a confession is admissible evidence against the person who made it, despite the confession being technically hearsay (s.76 (1) PACE).
There are however exception so the general rule. Where
it is proposed by the prosecution to give evidence of a
confession in court, and the defence makes a representation
to the court that the confession was or may have been obtained
by; oppression or in consequence of anything said or done
which, in the circumstances existing at the time the confession
was made, render any confession made unreliable,
the court shall not allow the confession, unless the prosecution
can prove beyond reasonable doubt that the circumstances
alleged did not exist (i.e., the onus rests with the prosecution
to negate allegations of oppression or unreliability).
Under S.76 (8) oppression is defined as including, "torture, inhuman or degrading treatment and the use of or threat of violence". This definition has since been widened by R v Fulling to include the burdensome or harsh exercise of authority.
Oppression may also cover bullying of a suspect, but this must be beyond swearing at them. It should be noted that allegations of oppression are very unlikely to be accepted if the suspect was interviewed with their lawyer present.
Examples of the scope of conditions found to make confessions
unreliable include,
prolonged periods of confinement, inducements offered, for
example" if you confess, we will drop the corporate
manslaughter charge," confessions made to shield someone
else, confessions made by suspects with a low IQ or fragile
mental condition, and finally where there were breaches
of the PACE Codes of Practice.
PACE Code C - The Detention, Treatment and Questioning of Suspects under s.66 provides for codes of practice to be made, and S.67 provides that police officers; and any other person charged with the duty of investigating offences will follow them, and that the courts shall all take account of the codes. The code contains the detailed arrangements that police officers and others should have regard to; and of particular importance to confessions, and the issues of oppression or unreliability include:
(a) the right for suspects to be able to telephone someone to inform them of his/her whereabouts;
(b) the right to have access to a lawyer (which is also within PACE itself at S.58) and to consult privately with that person;
(c) the rules regarding the cautioning of suspects;
(d) a prohibition on inducements being given, or the suspect's prospects at trial;
(e) the provision of an "appropriate adult" where the suspect is under 17 years old;
(f) that any written interviews to be signed by the maker;
(g) that adequate breaks be provided during periods of questioning and detention; and
(h) that cells be clean and light etc.
In determining whether breaches of Code C have resulted in a confession being inadmissible due to oppression or unreliability, the courts will generally determine whether the effect of the breaches are significant and substantial as per the case of R v Keenan.
Where facts are discovered after a suspect's confession (e.g., knives being discovered after a suspect said "the knives that I have were to carry out the robbery are in Jeff's lock-up at ........") and a confession is subsequently excluded by the court, those facts are still admissible by virtue of S.76, but the evidence must be linked to the suspect by means other than the excluded confession.
PACE S.78 provides the court with the discretion to exclude otherwise admissible evidence which the prosecution proposes to use, where having regard to all the circumstances, including how the evidence (e.g., a confession) 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.
This section provides the defence with an additional weapon with which to get a confession excluded by the court, and if a confession is disputed, the defence will usually run both defences at the same time e.g., allege the confession is unreliable, and unfair.
In addition to the exclusionary discretion found in S.78 PACE, the common law also provides for the court to exclude any otherwise admissible evidence where the probative value of the evidence (i.e., what it proves) is outweighed by the prejudice to the Defendant in putting the evidence forward. Note however that it is now rare for the common law exclusionary discretion to be relied on, now that PACE S.78 exists.
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