#16091 - Confessions - BPC Criminal Litigation (formerly BPTC) 2024/2025

Confessions

• "Interview" is defined by Code C as the questioning of a person regarding their involvement or suspected involvement in a criminal offence or offences.

  • Could include informal questioning/discussion.

General rule confessions are admissible:

• S76(1): A confession 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/done conducive to unreliability.

• The general rule of admissibility extends to operate not only in favour of the prosecution but also for a co-accused (s76A).

What is a confession?

• Defined in s82(1) PACE, “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’.

• Not limited to statements made to a person in authority (eg police/customs officer): ‘confession’ also covers statements such as an informal admission to a friend or colleague.

  • But, most confessions are made to persons in authority; and such confessions are the most likely to be challenged.

  • Where an inducement is made by a person in authority, it is more likely to operate on the accused’s mind and lead him to confess.

• It should follow from definition of ‘confession’ (s82(1) and the provision in s76(1) that 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, Ward, CA: where a passenger in a car gave W’s personal details to a police officer when asked for his own, the statement was admissible as a ‘confession’ by W, who denied being the passenger. It is submitted that it was not a confession ‘by’ W unless the identity of the maker was shown to be W, which was the very point in dispute. Court considered that a jury should be given a ‘clear direction’ not to rely on a statement unless they were sure from its contents and surrounding evidence that it was the D giving an accurate identification. 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 s114 CJA.

  • The result of a literal application of the definition was (in Mawdesley) that 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.

• Deliberately widely defined:

• Partly & wholly exculpatory statements

  • Covers not only unequivocal confessions of guilt (i.e. wholly inculpatory statement, eg “It was me. I did it”).

  • Mixed statements are covered (count as a ‘confession’):

    • Statements which are partly inculpatory and partly exculpatory,

    • eg ‘I had nothing to do with it but I was glad to see him die’, because they are partly adverse to the maker.

    • Whether words amount to at least a partial confession is a question of fact, separate and distinct from the question whether the words in question were spoken at all.

    • CA: not everything stated at the time of a partial admission is necessarily part of a ‘confession’.

    • Sliogeris: a statement made by co-accused A, in which he admitted his presence at the scene of a murder but blamed co-accused B for the killing, was not admissible under s76A (application to exclude by co-accused C was successful, whose defence was that B alone committed the crime). The admission of presence, though a partial confession by A, was not of itself relevant to C’s defence, while the allegation that B was guilty was not part of the confession. [[though the statement was admitted under s114 CJA 2003 interests of justice exception]]

  • Wholly exculpatory statements clearly do not fall within the definition (eg “It was nothing to do with me”).

• R v Nottle: A misspelling constituted a confession, where car had been scratched with a misspelt ‘Justin’ spelt as ‘Jutin’; D then, when asked to write down the same message, also spelt the name incorrectly as ‘Jutin’ taken to be a confession.

• Definition Includes a plea of guilty constitutes a ‘confession’ under s82(1).

  • Where a guilty plea has been retracted the court may decide (under s78 PACE) that it should not be given in evidence because of the adverse effect on the fairness of proceedings under s78.

  • A retracted plea of guilty may, where relevant, also be relied upon as a confession by a co-accused, to which the court’s power of discretionary exclusion under s78 PACE does NOT apply [[because s78 only applies to prosecution evidence]].

  • An admission made by accused in other proceedings would also constitute a ‘confession’ for purposes of PACE; and could be relied upon provided it complies with s76(2), as is likely; and (more doubtful) whether not excluded under s78. Such evidence would not have been admitted at common law.

• NOT included: A ‘plea in mitigation’ made by counsel on behalf of a client who has been convicted after a not guilty plea should NOT be taken as a ‘confession’ by the convicted person through his counsel. So to regard mitigation would be unjust and unrealistic, as it is counsel’s duty to accept the verdict and seek to mitigate the consequences. Same must be true if the convicted person advances his mitigation in person (not through counsel).

• Confessions otherwise than in words (by conduct/re-enactments/visual demonstrations)

  • S82(1): expression ‘whether made in words or otherwise’ suggests confession may, as well as written or oral form, include conduct such as a nod of acceptance of an accusation; or a thumbs up sign which may be regarded as a ‘statement’ in sign language.

  • Li Shu-Ling v The Queen, PC: a filmed re-enactment of the crime D was charged with, with D taking part in the demonstration and giving a running commentary counted as ‘confession’ (under common law, and would do under s82(1)).

  • So re-enactments or visual demonstrations (amounting to ‘confessions’) have same conditions of admissibility as for oral written confessions

• 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.

  • eg driving away at speed from the scene of accident is NOT a confession to which PACE applies (though evidence of such conduct would be relevant and admissible).

Admissibility of confessions, S76 PACE

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 matter 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 was or may have been obtained—

   1. by oppression of the person who made it; or

   2. 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 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. 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 in subsection (2) above.

4. The fact that a confession is wholly or partly excluded in pursuance of this section shall NOT affect the admissibility in evidence—

   1. of any facts discovered as a result of the confession; or

   2. where the confession is relevant as showing that the accused speaks, writes or expresses himself in a particular way, of so much of the confession as is necessary to show that he does so.

5. Evidence that a fact to which this subsection applies was discovered as a result of a statement made by an accused person shall not be admissible unless evidence of how it was discovered is given by him or on his behalf.

6. Subsection (5) above applies—

   1. to any fact discovered as a result of a confession which is wholly excluded in pursuance of this section; and

   2. to any fact discovered as a result of a confession which is partly so excluded, if the fact is discovered as a result of the excluded part of the confession.

7. Nothing inPart VIIof this Act shall prejudice the admissibility of a confession made by an accused person.

8. In this section“oppression”includes torture, inhuman or degrading treatment, and the use or threat of violence (whether or not amounting to torture).

S76:

• S76 is NOT intended as a mechanism for regulating the admissibility of a confession made by one co-accused as evidence for another: that is covered by s76A Pace, regulation of admission of the confession of a co-accused as defence evidence.

• So s76 applies to regulate admission of confessions as PROSECUTION EVIDENCE not as defence evidence for a co-accused.

• A confession may be excluded in part

NB, s76 does not automatically come into play to challenge confessions

• prosecution only need to prove admissibility of a confession if either

  • (a)defence represent that it is inadmissible under s76(2)

    • Re what is a “representation”: includes a statement by responsible counsel, on the basis of documents or proofs of evidence in his possession at the...