#15000 - Confessions And Identification Evidence - Criminal Procedure and Evidence

Supervision 8 – Confessions and Expert Evidence

Confessions

• ‘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’ (PACE, s.82(1)).

  • Retracted guilty pleas can be admitted (Johnson).

  • Includes ‘mixed statements’ (contains both inculpatory and self-serving elements).

    • Judge should direct that ‘the incriminating parts are likely to be true, whereas the excuses do not have the same weight’ (Sharp).

    • Cannot admit only inculpatory part (Aziz).

• At common law, provided that the accused and his accuser were on ‘even terms’ at the time (Chandler) and, provided that, an accusation might reasonably have been expected to have elicited a response from the defendant, adverse inferences can be drawn from silence. Still authoritative.

  • Munday suggests asking simply whether a response could reasonably have been expected.

• Non-inculpatory / neutral statements cannot be seen as confessions (Hasan).

  • Subsequent events cannot render a neutral statement a confession.

• Convictions based solely on confession (Julie).

• CONFESISONS ARE EXCEPTION TO HEARSAY RULE, SO ADMISSIBLE THROUGH S.114(1)(a).

• Confessions are prima facie excluded unless prosecution can prove beyond reasonable doubt the requirements in s.76(2).

• Pattenden worried about false confessions.

  • General corroborative requirement in other jurisdictions.

  • Suggests modified Turnbull direction when conviction based substantially on a disputed or retracted confession.

  • Also wants to allow expert evidence on effect of interrogation.

Conditions of admissibility

• A confession may be admitted only ‘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’ (PACE, s.76(1)).

• It will normally be for the defence to contest the admissibility of a confession.

  • The court may also raise the issue of its own motion (s.76(3)).

• Court must exclude a confession if prosecution fails to prove beyond reasonable doubt that it has not been obtained either (s.76(2)):

  1. By oppression of the defendant.

     • The enquiry into whether the Crown can show that the confession was not obtained by forbidden means is conducted as a ‘trial within a trial’ (voir dire).

       • Must be held whenever there are allegations that reasonably require investigation (e.g. Dhorajiwala).

     • But jury can still disregard confession if they think it has been obtained by oppression (Mushtaq).

     • Oppression ‘includes torture, inhuman or degrading treatment, and the use or threat of violence, whether or not amounting to torture’ (s.76(8)).

       • But following Fulling, no reference to this statutory definition. Requires very wrongful conduct.

  2. As a consequence of things said or done that might render a confession unreliable (taking into account the circumstances existing a the time).

     • Does not require any impropriety to be shown on the part of the questioner.

     • If first interview tainted, any subsequent interview may also be treated as contaminated (McGovern / Ismail).

     • Act sets objective test of what to take into account, regardless of whether interviewing officers know of these at the time (Everett / Walker).

     • Motive of making confession disregarded unless it affects reliability (Wahab).

• Court must disregard whether the confession is actually true or not (s.76A(2)).

• If prosecution case relies on a confession against a mentally handicapped who did not have an independent person with him, court has to caution jury (s.77).

  • Judge needs to give a ‘full and proper statement of the mentally handicapped defendant’s case against the confession’s being accepted by the jury as true and accurate’ (Bailey). Overlaps with Aspinall.

• Even if a court rules a confession inadmissible, evidence uncovered in consequence of that confession, if relevant, may still be admissible (s.76(4)(a)).

  • But evidence of how it was obtained must be disclosed (s.76(5)).

• Crown may adduce a confession as evidence showing that the accused speaks, writes or expresses himself in a particular way (s.76(4)(b)) (e.g. Nottle).

Admission may reflect adversely on fairness of proceedings (PACE, s.78)

• Not only police officers bound by PACE codes (s.67(9)).

• Not every breach of a provision of a Code will justify the exclusion of an accused’s confession under s.78.

  • Only if the breaches are ‘significant and substantial’ ought the court to exclude it (Absolam).

• Confession may have been made casually (Elleray – probation officer).

• S.78 more about procedural unreliability. S.76 about specific circumstances.

Key rules in police interrogation

• Suspect should be informed of one’s rights (Beycan).

• Denying legal advice will not necessarily trigger s.78 (Alladice).

  • This is less serious if suspect is an experienced villain (Dunford).

• Police’s failure to caution is, in most cases, bound to be significant, but it may be counteracted by the individual circumstances (Pall).

• Contemporaneous records of the interview must be kept (Canale).

• Police misleading D’s legal adviser (Mason).

• Mentally disordered and vulnerable should be represented (Aspinall).

• Cell confession allowed in Nudds.

  • Look for abuse of process, exclusion under s.76(2)(b) then 78.

• Common law discretion, under s.82(3) may be used where courts at first admit a confession then changes its mind and decides that it ought to be excluded.

Evidence against another co-accused

• If D1 makes allegations implicating a co-accused, D2, conventional view is that the Crown cannot adduce this as evidence against D2 (Christie).

  • But it might be admissible through s.114(1)(d).

• Jury can use findings of another’s guilt evidentially in respect of another co-defendant (Hayter).

  • Confined to exceptional circumstances (Lord Brown).

  • Persad suggests that exception will be confined to Hayter-like circumstances (parties in it together, guilt depends on the other).

  • In Y, confession made by one person admitted through s.114(1)(d) but unsure how often this will be used.

• PACE s.76A (as amended by CJA 2003), allows D2 to proffer evidence that D1 has made a confession when this is relevant to his defence and is not excluded in pursuance of this section.

• Defence must prove on balance of probabilities that confession of D1 was not obtained: s.76A(2)

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.

• Must ignore that confession may be true.

  • S.76A(4) allows subsequently discovered facts from the confession to be admitted.

• Hearsay contained in another party’s confession is open to admission under s.114(1)(d) (R v Y).

  • Hughes LJ stressed that this was narrow exception.

  • Exception to general rule in Finch precluding hearsay from third party if not charged in same proceedings.

Identification Evidence

• 4 identification procedures set out in Code D:

  • Video identification;

  • Identification parade;

  • Group identification;

  • Confrontation of the suspect by the witness, normally in the police station.

    • Measure of last resort.

    • Cannot force a confrontation (Joseph).

• Video identification is the usual procedure of choice.

• If prosecution case relies substantially upon identification evidence of poor quality, it is the judge’s duty to withdraw the case from the jury and to direct an acquittal (Turnbull).

  • Single piece of identification evidence can support a whole prosecution case (Pierre).

  • Fleeting glimpses can be acceptable (Dossett).

• If case is not halted and prosecution case depends wholly or substantially on identification evidence, a Turnbull direction must be delivered.

  • But the direction must depend on facts of the case (Mills / Nash).

  • Judge should tell jury of circumstances of ID evidence and that there is a risk of mistake?

• Turnbull guidelines only apply to visual identification of people.

  • Does not have to be identification of the accused (Bath).

• Adapted Turnbull direction given for voice identification evidence (Hersey).

  • Factors to consider when looking at voice identification laid out in Flynn.

    • Voice ID more difficult than visual ID.

    • Quality of recording / gap in time / nature and duration of speech.

• Direction needed if experience suggests that there is difficulty with a certain type of evidence (Luttrell – e.g. lip reading).

• Not necessary if issue does not concern identification (Shand / Slater).

• Failure to deliver direction is serious (Reid / Widgery in Turnbull).

• Qualified ID admissible only where it supports other evidence (George).

Identification procedures and PACE

• Code D regulates the procedures that must be followed when the police conduct an identification procedure, notably in Annexes A, B and C.

• An identification procedure must be held whenever (para 3.12):

  • A witness has identified a suspect or purported to have identified them prior to any identification procedure having been held; or

  • There is a witness available who expresses an ability to identify the suspect, or where there is a reasonable chance of the witness being able to do so, and they have not been given an opportunity to identify the suspect; and

  • The suspect disputes being the person the witness claims to have seen, an identification procedure shall be held...

• No need to hold...