#10520 - Confessions And Opinion Evidence - Criminal Procedure and Evidence

Confessions

What is a confession?

PACE 1984, s. 82

(1) […] “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

Pretty wide definition of confession in s82(1) PACE

Confessing through actions

• “whether made in words or otherwise”

• Li-Shu-Ling: Suspect confessed to murder and reconstructed it with police. The Privy Council held that him taking part in the reconstruction was a confession by showing the way that he said he had murdered her.

Confessing to animals/objects:

• Henton: H was on trial for murder of J. On recordings he was held telling his cats that he had hit her and this was held to be a confession despite him not making it to any human.

Statements that become confessions later

• Hasan: H questioned by police regarding a burglary he was suspected of perpetrating. He did not say anything useful during questioning but was identified in an identity parade so was charged – at which point he said the burglary in January 2000 was caused by duress. Then in a separate murder inquiry later on he said he had met a man, O, in February or March 2000. At trial for burglary he then claimed that O was the man who threatened him in January 2000, which did not fit with what he said in the murder inquiry.

  • When the prosecution adduced these conflicting statements the defence tried to argue that the statement made in the murder inquiry was a confession because subsequent events made it adverse to him.

  • HL decided that subsequent events cannot render a neutral statement adverse to a defendant.

• Note that Roberts thinks the decision in Hasan makes the definition of confession in those contexts too narrow. We should only be admitting fair and reliable evidence.

• Park: P charged with burglary and questioned about contents of his car, which he lied about. His lies seemed exculpatory on their face but they had adverse impact when shown to be lies at trial. Kennedy LJ declined to treat them as confessions.

  • This makes sense not to treat false denials and lies at confessions, but from a policy standpoint we might want to exclude such evidence in case it is contaminated by illegitimate pressure.

Note in Z it was suggested that in light of Saunders v UK decision where they said “bearing in mind the concept of fairness in Article 6, the right not to incriminate oneself cannot reasonable be confined to statements of admission of wrongdoing or to remarks which are directly incriminating”, that such statements as we saw in Park etc should be confessions.

• In Z the CA accepted this argument and rejected a literal approach to s82(1) in which those statements that later turn out to be incriminating are not confession

• Then on appeal in (same case) Hasan the HL reversed this ruling and Lord Steyn rejected the Saunders v UK argument as that case concerned compulsion. Emphasised that issues in this case were covered by s78.

Mixed Statements

• Mixed statements have inculpatory and exculpatory elements to them

• S82(1) refers to ‘partly adverse’ statements as well so these can be confessions.

• The prosecution have to admit both parts of a statement, such as ‘I hit him, but it was self-defence’, the jury must be allowed to consider the entirety of the statement.

• Sharp: jury should be told it can consider the whole mixed statement in deciding where the truth lies.

Common Law: Silence can amount to an admission

Silence is not a confession under PACE because it cannot be said to amount to a ‘statement’.

• There are various rules relating to adverse inferences in the Criminal Justice and Public Order Act 1994

• At common law, if the accused and his accuser were on ‘even terkms’ at the time, and provided that in the circumstances an accusation might reasonably have been expected to elicit a response, the fact D stays silent can be left tot the tribunal of fact who can decide whether to draw inferences.

When is a confession admissible under PACE?

PACE 1984, s. 76

(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.

SO the key concern is relevance unless…

PACE 1984, s. 76

(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—

(a) by oppression of the person who made it; or

(b) 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.

If issue of oppression or unreliability are raised: judge holds voir dire trial to determine admissibility away from jury.

• Mitchell: Lord Steyn pointed out that jury should not be made aware that a voir dire has taken place at which the admissibility of a confession has been considered.

Raising the issue

• Normally for the defence to contest the admissibility of the confession

  • S76(2) requires party to ‘represent to the court’ that a confession was extracted in brwach of s76. This is taken to mean that counsel, in possession of documents or proof of evidence to that effect, makes respresentation.

• Court can also raise issue on its own motion – s76(3)

A confession must be excluded if it has been obtained by oppression – s76(2)(a)

Confession inadmissible fi the prosecution cannot establish beyond reasonable doubt that the confession was not made as a result of oppression.

PACE 1984, s. 76

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

So oppression includes these serious things, but what else will count as oppression?

• Fulling: Charge of insurance fraud. F said nothing at interview. Afterwards, she was put in a cell and told that her partner was having an affair with the woman in the next cell. She then confessed and claimed she had only done so in order to get out of the cell and away from the woman.

  • CA did not refer to the definition in s76(8), instead consulted the dictionary definition, which is wider than s76(8), saying that oppression was ‘exercise of authority or power in a burdensome, harsh, or wrongful manner; unjust or cruel treatments of subjects, inferiors, etc; the imposition of unjust or unreasonable burdens’.

  • Concluded that the police conduct was not oppression in this case.

• Courts don’t seem to treat s76(8) as a definition, look to much wider meaning.

• Oppression requires wrongful treatment on the part of the interrogator:

  • Paris, Miller and Abdullahi: “The Cardiff Three” case. M questioned over 5 days for a period of 13 hours and after being asked the same thing 300 times he confessed to the murder of a prostitute. The police were said to have bullied and hectored him.

    • Lord Taylor CJ held it was oppression and said “Short of physical violence, it is hard to conceive of a more hostile and intimidating approach by officers to a suspect”

  • Emmerson: Police officer alleged to have become angry, raised his voice, and used bad language. Held to have been rude and discourteous but not oppressive.

Where the first interview is tainted by oppression, but the second is not:

Glaves:

• 16-year-old boy was interviewed without an appropriate adult present. He was bullied by the police officers and eventually admitted that he started a fire in which a woman had died. When his father arrived to be the appropriate adult, the interview was conducted fairly without any bullying. 8 days later the police invited the boy back to be interviewed and he brought a legal advisor, making a number of admissions amounting to confessions.

• Trial judge said that the oppression in the first interview would still have been at play in the second, therefore confessions from either were inadmissible.

• CA held in relation to the interview 8 days later that the confession from that interviewed should also be excluded due to the oppression in the first.

  • Claimed they were excluding it because in the interim time the suspect had not sought legal advice (weird because he had a lawyer there and the police had not stopped him from getting legal advice).

  • Probably strict approach to prevent police acting oppressively.

If the jury thinks there might have been oppression then it should not rely on the confession and should be directed to this effect – Mushtaq approach. Might be favoured since it allows public to decide what oppression is.

A confession must be excluded if it has been made in consequence of things said or don’t that might render it unreliable – s76(2)(b)

S76(2) requires court to disregard the fact that it may be known that the confession was true, the question is simply hypothetical.

Who must have ‘said or done’ the thing making it unreliable?

• Goldenberg: heroin addict confessed and said he only did so because he was anxious to...