Confessions, Similar Fact Evidence, Admissibility

Evidence

Extract 1 : Part-1
Extract 2 : Part-2

Part 2

1. The first question that we are asked is whether or not the police can rely on the confession that they have obtained form Alan. There are several pertinent factors that need to be discussed here. First of all the fact that Alan was denied a solicitor, secondly the fact that he was refused access to a doctor, despite been diabetic, and finally the fact that he was interviewed 11 times before breaking down. The next question that n and confessing on the twelfth.

A confession is an admission made by a Defendant in criminal proceedings. 'A free and voluntary confession is deserving of the highest credit, because it is presumed to flow form the strongest sense of guilt, and therefore it is admitted as proof of the crime to which it refers."1Under 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 exceptions to 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 - yet 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, and of course, this will only bolster Alan's case.

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. Of course, the refusal of insulin could of course mentally and physically made Alan weaker and thus is more likely to render the confession inadmissible.

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. In this case it is submitted that the circumstances of the case do so amount to such a test, especially the denial of the solicitor and the denial of access to a doctor, especially as Alan could forseeably have had his life put at risk due to his need for an insulin injection. In addition the fact that the suspect was questioned and confessed to the offence also raise questions about whether or not he had received adequate breaks between questioning, or been deprived of sleep.

As regards to the finding of a knife in the canal, due to the confession disclosing its whereabouts, then the general rule is that 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 it will not be permitted for the prosecution to divulge how they found that the weapon was there. Therefore, they could not tell the court that the evidence was found there because of the confession.2

If this is not held, which is unlikely, then 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.

Therefore, it is submitted that the confession will not be admitted because it is unsafe, however the evidence of the knife can still be admitted as long as it is not divulged hoe the police came to find its whereabouts.

2. The next question that we are asked is whether or not the witness statement of Salma, Alan's neighbour can be admitted or not. She claims to have heard Beth and Alan arguing around the time of the death and that Beth said "Get off me, you're killing me". However, Salma fears giving evidence in court as she fears that Alan will arrange for her to be attacked by a friend or associate.

The general rule at common law is that hearsay evidence is inadmissible unless it falls within a common law or statutory exception. The rationale behind this exclusionary rule is that out of court statements made by others cannot be tested in court by cross-examination to see if they are true or not.

A useful starting point is the definition found in the Civil Evidence Act 1995 section 1, which, bearing in mind that it only applies to hearsay in civil cases, is one of the nearest to a clear definition of hearsay. The definition itself is based on common law cases, which form the basis of how hearsay evidence is treated in criminal cases; Under section 1(2) of the Act - Hearsay evidence can be thought of as "any statement made otherwise than by a person while giving oral evidence in the proceedings, which is tendered as evidence of the matters stated." Examples of hearsay statements in documents can be found in witness statements read out by solicitors in court; public analyst certificates, and records from businesses, such as accounts. There is no doubt that should the witness statement be tendered without direct oral evidence that the evidence will be technically hearsay, however there are of course exceptions to the rule.

For the purposes of the hearsay rules, the definition of a statement applies equally to those made orally, to those made by a gesture and those made in documents.

Statements that have been held to be hearsay include documents from a factory, assembly line (Myers v DPP3 ); somebody nodding in agreement to a question; and phone calls to a drug dealer's house asking for the usual supply of drugs. The cases have shown that statements could be statements that on the face of it are not repeated to prove the facts stated, but on reflection imply that the facts suggested are true.

There are several clear common law exceptions to the hearsay rule. As stated the hearsay rule will not apply to the statement where the party seeking to rely on the statement other for than the proving of the truth of the matters contained within it. Some examples of statements held not to be hearsay include those repeated by others to show only that a statement in question was actually made, for example where a person had been threatened by terrorists, the statement was repeated not to show that the threat was true or not, but simply that it was made, and therefore was capable of being believed by the accused and thus capable of amounting to duress - Subramanium v PP. 4

We shall move to look at the relevant statutory exceptions to the Hearsay rule. Under the Criminal Justice Act 1988 (CJA) two main exceptions apply under ss. 23 and 24. Section 23 is the relevant one in this case.

Section 23 covers first hand documentary statements. This section provides that a statement made by a person in a document shall be admissible in criminal proceedings as evidence of any fact stated of which oral evidence would be admissible, but only where the maker of the statement is unable to attend court. The court may hold that this is the case if they are outside the UK, unfit to give evidence, can't be found, where they are not giving evidence out of fear or whether they are deceased.

The statement must be first-hand hearsay, to come under the exception. Put simply that means that the statement was made by a person who directly perceived the facts of which the evidence is being given. The case of R v McGilivray (1992)5 shows that in regards to statements given to the police, they will come under section 23, as long as the person has wither written it or dictated it and then checks and signs it.

There are several so called statutory exceptions for allowing a statement made in accordance with section 23. As per the case of R v Minors, 6where the prosecution seek to rely on the fact that the statement they must show that exists beyond reasonable doubt. As was stated in the same case, one of the statutory reasons for allowing the statement to be submitted is that the person does not want to give oral evidence through fear. R v Martin7shows that the fear can include fear for personal safety and need not be based on reasonable grounds as longs as it is connected with the commission of a material offence.

Where a statement satisfies the above requirements, the court will prima facie excludes it, unless the prosecution can show that it is in the interests of justice to admit it by virtue of s.26 (which applies as the stamen was made in contemplation of or for pending criminal proceedings) In deciding whether it is in the interests of justice to allow a statement's admittance, the court may consider the risk of unfairness to the accused by either admitting it or not, and whether he/she is likely to be able to contradict it. 8

In determining, the weight of the evidence admitted under section 23 the court can consider all relevant circumstances from which an inference of the documents accuracy can be drawn. It is likely for the reasons set out above that the statement will be held to be admissible.

3. As regards to the situation with Leroy, much of the same substantive law applies to this scenario as it does to the one with Salma. However, section 23 will only apply if a documentary statement was given. It should also be noted that a document has been held to include a tape, film, or disc, as well as a written document. Presuming that this was e case then the only question that differs is whether or not the fact that he is Jamaica and refuses to vocme back to testify has any different bearing on the scenario. One of the statuary exceptions to Section 23 is that the section can apply to allow the statement to be included if the person that proffered the statement is outside the jurisdiction, and cannot be found or all reasonable steps have been taken to secure his attendance,9 or that he is outside the UK and it would not be reasonably practible to secure his attendance. For this reason the evidence should be admissible as it is the refusal of Leroy to come to the Uk that has precluded him form given evidence, and not, on the face of it, the lack of efforts form the prosecution to secure his attendance.

  1. R v Warwickshall (1783) 1 Leach 263 FI pp 263[^ Return]
  2. Lam Chi Ming v R [1991] 2 AC 212 PC[^ Return]
  3. [1965] AC 1001 HL[^ Return]
  4. [1956] 1 WLR 965 PC[^ Return]
  5. 97 Cr App R 232 CA[^ Return]
  6. [1989] 1 WLR 441 CA[^ Return]
  7. [1996] Crim LR 589 CA[^ Return]
  8. R v Gokal 1997[^ Return]
  9. R v Bray (1988) Cr App R 354 CA[^ Return]


BIBLIOGRAPHY

Emson, R Evidence, Macmillan Press

Huxley, P Statutes on Evidence: 2001-2001 (Blackstone's Statue Book Series) Blackstone Press

Keane, A The Modern Law of Evidence, Butterworths Law

Sampson, F Blackstone's Police Manual: Crime 2003 (Blackstone's Police Manual) Blackstone Press

Evidence

Extract 1 : Part-1
Extract 2 : Part-2

 

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