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CONFESSIONS
Confessions are potent instruments for securing two fundamental goals of the
criminal justice system, namely the conviction of the guilty and the protection of
victims and potential victims of crime
...

They may, for example, have psychological benefits for the suspects who make
them
...
In
several of the notorious cases that came to light some years ago the CA quashes
convictions for murder and other serious offences in response to substantial
doubts about the reliability of the confession evidence on which the defendants
were convicted
...

•

Infamous Miscarriages of Justice – Cardiff 3 (bullying) Birmingham 6
(beaten) Guildford 4 (fabrication)

The meaning of confession
The term confession has an extended meaning in the law of evidence
...
But the term is not restricted to this meaning
...
82(1) of PACE defines confession to include ‘any statement wholly or partly
adverse to the person who made it’
...

Thus any incriminating statement falling short of a full acknowledgment of the
commission of an offence is still treated as a confession for the purposes of the
regulatory scheme established by PACE
...
82(1) even if it consists in the main of denials)
...
A statement that is wholly exculpatory (=show or declare that someone is
not guilty of wrongdoing) when made is not within the definition of a confession
...
82(1) even if it is designed primarily to diminish the
involvement or criminality of parties other than the defendant
...

Later, however, J successfully applied to have his guilty plea vacated
...
76A of PACE
...
82(1)
...
82(1) expressly states that a confession may be ‘made in words or otherwise’
...
One form of admission
by conduct that has become increasingly prominent is a re-enactment by the
accused of the offence
...

What is a confession?
•
•

•
•

Section 82(1) of PACE states that a 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’
E
...
retracted written basis of plea – Johnson (2007)
David Henton – secretly taped recordings of the accused allegedly (barely
audible)
confessing
the
crime
to
his
cats
(http://www
...
co
...
cats)

Can a denial ever amount to a ‘confession’ under PACE, s
...
82(2): ‘the section is aimed at excluding confessions
obtained by word or deeds likely to render them unreliable, i
...
admissions or
partial admissions contrary to the interests of the defendant and welcome to the
interrogator
...
’
Park – P who was charged with burglary, when stopped and questioned about
the contents of his car, told the police a pack of lies, which, on their face,
appeared exculpatory
...

Z (2003) – the meaning of ‘confession’ in PACE, s
...
Z had set up a defense of duress to a charge of burglary
...

Because the off – the –record interview did not concern Z’s own case, non of the
conventional safeguards that accompany interrogation – a caution, a
contemporaneous record of anything said and so on – had been observed by the
police when this conversation took place
...
76
...
82(1)
...
Notably it was stated:
‘Bearing in mind the concept of fairness in Art
...
Testimony obtained under
compulsion, which appears on its face to be of a non-incriminating nature, such
as exculpatory remarks or mere information on questions of fact – may later be
deployed in criminal proceedings in support of the prosecution case, for example
to contradict or cast doubt upon other statements of the accused or evidence
given by him during the trial or to otherwise undermine his credibility
...
In Z the CA
accepted this argument
...
82(1)
adopted by the CA in Sat-Bhambra and Park and concluded: ‘Prima facie one
would have thought that the test is to be made at the rime when it is sought to
give statement in evidence…The prosecution bear the criminal burden of proving
that the confession was not obtained in circumstances [contrary to s
...
If
therefore an accused is driven to make adverse statements by reason of
oppression, why should he lose the protection of s
...
In Hasan the issues were inadvertent
deception by the police and absence of almost all of the customary
safeguards that accompany the interrogation of suspects, not outright
compulsion
...

76 as read with s
...
78, are designed to provide in a coherent
and comprehensive way for the just disposal of all decisions about
statements made by accused persons to the police
...
’
"Whether a 'confession' in section 76 of the Police and Criminal Evidence
Act 1984 includes a statement intended by the maker to be exculpatory or
neutral and which appears to be so on its face, but which becomes
damaging to him at the trial because, for example, its contents can then be
shown to be evasive or false or inconsistent with the maker's evidence on
oath
...
Properly construed section 76(1), read with section 82(1), requires
the court to interpret a statement in the light of the circumstances when it
was made
...
g
...
It is not a confession within the
meaning of section 76
...

But the safeguards of section 78 are available
...
78
...
’

For the same reason – namely the unrestricted capability of s
...
76(1) and 82(1) were incompatible
with Art
...
The decision in Hasan [2005]
doubtless settles the question of whether or not s
...

The issues raised by confession evidence
The problems can be categorized under three broad headings: authenticity,
legitimacy, reliability
...

 Legitimacy is concerned with the question whether the means used to
procure the confession were lawful and fair
...

(1) AUTHENTICITY
The authenticity of a confession is called into question when a defendant alleges
that it was fabricated
...
One form is the invention of an
alleged oral admission, the practice often referred to as ‘verballing’
...
An example of the problem comes from the Birmingham Six case, in
which two of the defendants claimed that they were the victims of police
‘verbals’
...
In the Birmingham Six and Tottenham Three
cases evidence was presented to the CA that pages containing incriminating
remarks appeared to have been added to the defendant’s statements after they
had been signed
...

(2) LEGITIMACY
It is apparent that some pressure or encouragement is inevitable in police
interviewing, and is likely to be necessary in some cases if suspects are to make
admissions
...

Again the miscarriage of justice cases demonstrate the range of problems
involved
...
This term is used here to refer to
unacceptable manipulative techniques of interrogation
...
They may also include threats and promises about
such matters as the grant or refusal of bail, the number and gravity of charges,
the involvement of members of the suspect’s family and so on
...
There may be a failure by the police
to caution the suspect, a failure to advise of the right to legal advice, an
unjustified refusal of access to a lawyer and so on
...

(3) RELIABILITY
Some voluntary confessions are completely false
...

 First confessions may be volunteered to well-publicized crimes; in such
cases, they tend to be made by persons seeking notoriety (= famous/ well
5



known for some bad quality) or suffering from generalized guilt feelings
or indulging in criminal fantasies
...
Stress
appears to be a key factor in many false confessions
...

Certain people have a psychological make-up, which makes it difficult for
them to resist the pressure of interrogation
...

Some suspects are by nature more willing to accept suggestions made by
their interrogators
...

 A coerced-compliant confession may result from aggressive
questioning of a compliant and suggestive suspect
...
No thought may be given to the consequences of
confessing or there may be a belief that the record can be put right
later
...
Characteristically, the confession
is retracted once the stress induced by the interrogation has
dissipated
...
Such confessions may be the product
of one or more of a number of factors, e
...
mental confusion,
intoxication, bad memory, suggestibility, immaturity, generalized
guilt feelings
...

 When Gudjonsson administered the relevant tests to all the
members of the Birmingham Six, the two who obtained
significantly low scores were the same two who did not sign
written confessions but who were alleged to have made oral
admissions
...
58)
Caution (Code C)
Tape recording of interviews/contemporaneous notes
Mentally vulnerable to be accompanied by ‘appropriate adult’
Sections 76 and 78

POLICE POWERS TO DETAIN SUSPECTS FOR QUESTIONING
PACE 1984 was enacted with the express purpose of regularizing police
detention and subjecting it to the rule of law
...
to obtain
...
37 requires that the investigative questioning in relation to any particular
offence must cease as soon as there is sufficient evidence to support a formal
criminal charge
...

- in brief, suspects may be detained without charge on the authorisation of police
officers for up to 36 hours but this period may be extended on application to a
maximum of 96 hours
...
76: THE RULES OF ADMISSIBILITY
PACE Act 1984 s
...

(2) If, in any proceedings where the prosecutions 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 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
...
The traditional rationale for admitting hearsay of this type is
the same as for any admission by a party to litigation, namely that a
person would not generally admit something against his interest unless it
were true
...
82(1) of PACE which provides the definition of a confession, states that
it is immaterial whether or not the confession is made to a person in
authority
...
If the
prosecution wish to rely upon it they must satisfy the rule of admissibility
in s
...


Prohibited methods of obtaining confessions – procedural issues
S
...
It deals with the
methods used to obtain confessions and required the prosecution to prove that
the actual confession in question was not obtained by the methods prohibited by
the section:
s
...

The words ‘represented to the court’ envisage the defence specifically raising the
issue, either by directly alerting the prosecution before trial, or by formal
submission at the trial
...
Once the defence has raised the
issue the burden is on the prosecution to prove the factual conditions of
admissibility laid down in the section
...

Under s
...


8

76(2)
...

The defendant may want to challenge evidence of his confession on grounds both
of legitimacy and authenticity
...

The PC in Ajodha has made it clear that these claims are not necessarily
contradictory
...
If the
defendant claims that he did not make the alleged oral admission, and that he
was ill - treated by the police before or at the time of the alleged admission, he is
regarded as raising two issues that are not mutually exclusive
...
As the court explained, the judge first has to
decide whether, on the assumption that the alleged admission was made, it is
inadmissible as a matter of law
...

Since an issue of fact is involved under s
...
This will be done under
the procedure known as the voir dire, or the trial within the trial
...
It is only by giving his side of the story
that a defendant will stand a realistic chance of persuading the judge that there is
at least a reasonable doubt on the issue
...

PACE does not deal directly with the issue, but s
...

The common law authorities are conflicted
...

o Can the prosecution lead evidence of statements by the accused on the
voir dire, or cross-examine the accused on his statements on the voir
dire? This question raises tricky problems where the accused makes any
kind of incriminating statement on the voir dire
...
76(1),
9

which results in that confession being admissible for the prosecution if
the conditions of admissibility in s
...
Invariably they will
be because questioning of the accused on the voir dire is highly unlikely
to amount to oppression or things said or done likely to render any
confession by the accused unreliable
...
76 has displaced the second part of the decision in Wong
Kam-Ming
...

However ss
...
In this way it could be
argued that the virtual necessity to give evidence on the voir dire results
in the accused effectively being deprived on the right not to testify before
the jury
...
An exclusionary discretion may be the best way of dealing
with the problem, short of legislative amendment to s
...

o If the judge rejects a defence claim that a confession should be
excluded by reason of impropriety in the way that it was obtained,
the defence may revive the question of impropriety before the jury
...
In the trial D cross-examined the
police officers concerned putting to them the same allegations of
oppression, which they strenuously denied
...
The
judge directed the jury in accordance with the law just stated and
followed the then Judicial Studies Board model direction by saying that if
the jury were sure that the confession was true, they could rely upon it
even if it was or might have been made as a result of oppression or other
improper circumstances
...
Disapproving the earlier authorities Lord Rodger, with
whom Lord Steyn and Lord Phillips agreed, considered that the judge is
now required to tell the jury that if they think that the confession
was, or may have been, obtained by oppression or other improper
means as described by the defendant in evidence, then they must
10

disregard it
...


•
•

Procedure
Voir Dire – if the prosecution does not satisfy the burden it MUST be
excluded
If the prosecution satisfies the burden, then the issue can be re-run before
jury and judge should direct jury that they they should disregard it if they
believe that the statement was or may have been induced by oppression
(Mushtaq 2005)

The rule against oppression
The partial definition of oppression in s
...
3
of the ECHR, which provides that no one shall be subjected to torture or
inhuman or degrading treatment
...
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)
...

• First the exclusion of the confession is a vindication of the
accused’s right not to be subjected to the unlawful use of force or
threat of force by the police
...
76 (8) will
invariably amount to at least a common assault
...

• Secondly, where the privilege against self-incrimination is
regarded as an independent procedural right of the accused,
exclusion of a confession coerced by force would seem to be
essential to uphold the right
...
Inadmissibility of a confession obtained
by force may not necessarily be sufficient to counteract all other
pressures on the police
...

However, without such a rule, the temptation of some police
officers to resort to the use of force might prove irresistible
...

11

•

Finally the rule of exclusion is a clear public statement that the use
of the prohibited means is not a legitimate method of investigation
...
S
...
Thus even if the accused admits
in a later interview that an earlier coerced confession was true, the
first confession remains inadmissible
...
Therefore under s
...
If the police conduct relied on by the accused is
the same conduct that rendered the first confession inadmissible, then the
court will have to be satisfied that its influence had ceased to operate by
the time of the second confession
...
The
trial judge excluded the first admissions under s
...
However the judge
admitted the later admissions on the assumption that the defendant had
received legal advice in the intervening period
...
The CA held that the later admissions should have been
excluded also because the defendant might have been subject to the
continuing influence that had caused him to confess earlier
...
The point seems to be that such advice would have
informed the defendant of his right to silence an would have counteracted
the effect of the police misconduct
...
In many cases there is likely to be an inference that its effect is
continuing unless something positive has intervened to curtail its effect
...
Even if a solicitor is
present at the later interview the defendant may feel obliged to repeat a
confession for fear of subsequent retribution if it is not confirmed
...
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)
...

o ‘Torture’ is defined elsewhere in English law, namely for the
purposes of the offence of torture, set out in s
...
That definition refers to the ‘intentional
infliction…of severe physical or mental pain and suffering by a
public official, or by a person acting in an official capacity, in the
performance…of his official duties
...

o Strasbourg jurisprudence on art
...

Greek Case – the European Commission of Human Rights defined
‘inhuman treatment’ as such treatment ‘as deliberately causes
severe suffering, mental or physical’ and degrading treatment as
treatment that ‘grossly humiliates the individual before others or
drives him to act against his will or conscience
...
Ireland
...
The Court held that the techniques
amounted to inhuman treatment because they caused intense
physical and mental suffering and also led to acute psychiatric
disturbances during interrogation
...

B) The use or threat of violence (whether or not amounting to
torture)
‘Violence’ is not defined in PACE
...
If this applies without
modification to s
...

Cross and Tapper suggest that ‘violence’ in this context must indicate
more than a mere battery and should be construed as connoting a
substantial application of force
...
It denoted something,
which ‘sapped the accused’s free will’ so that ‘he spoke when otherwise
he would have remained silent’
...
76(8)
...

(The court looked at the ordinary meaning of the word)
...
After her arrest she at first remained silent,
despite persistent questioning
...
On appeal against conviction she argued that the confession
should have been excluded on the ground that it had been obtained by
oppression
...

The court had to decide if this conduct on the part of the police amounted
to oppression
...
; the imposition
of unreasonable or unjust burdens’ while the bishop intoned: ‘ There is
not a word in our language which expresses more detestable wickedness
than oppression’
...
The Oxford English Dictionary …'Exercise of
authority or power in a burdensome, harsh, or wrongful manner;
unjust or cruel treatment of subjects, inferiors, etc
...
'
CA: 'There is not a word in our language which expresses more
detestable wickedness than oppression
...
”
Fulling: Court of Appeal: We find it hard to envisage any circumstances in
which …oppression would not entail some impropriety on the part of the
interrogator
...

What however is abundantly clear is that a confession may be invalidated
14

under section 76(2)(b) where there is no suspicion of impropriety
...
Even if there has been such reliance, we
do not consider that the policeman's remark was likely to make unreliable
any confession of the appellant's own criminal activities
 CA concluded that the police conduct has not amounted to oppression
in this case
...

--> As it was held in Emmerson , a policeman who, three-quarters of the
way through an interview , raises his voice and uses bad language may be
'rude and discourteous' but will not have acted oppressively
...
His admissions were made during
interviews totalling 13 hours spread over five days
...
The interviews were oppressive
taken as a whole, because of their length and tenor
...

The convictions of the co-accused were also quashed on the ground that
they were possibly tainted by the inadmissible confession
...


•

•

Paris, Abdullahi and Miller (1992) CA (the Cardiff 3)
“It is perfectly legitimate for officers to pursue the interrogation of a
suspect with a view to eliciting his account or gaining admissions
...
were not questioning him so much as shouting at him
what they wanted to say
...
"

15

This case can be usefully compared with Heaton (1993) to underline the
point that oppression is a matter of degree
...
Amongst other things he complained that the
interviewing officers raised their voices and repeated questions
...
Some
repetition of questions was appropriate
...
They
are not required to give up after the first denial or even after a number of
denials’
...

•
•

•
•

S
...

Hypothetical test: the question is the likely reliability of any confession
the accused might have made at the point of time that the actual
confession was made
...

Walker (1998) Crim LR 211 – Police not aware of D’s personality
disorder
“ Whereas the questions asked by the police at interview were not in any
sense improper and would not, on the face of them, have constituted
under pressure by the police on an ordinary person in full possession of
their faculties, they were nonetheless, questions which could lead a
suggestible or fantasising personality into admissions which…could not
be taken at face value”
Extrinsic evidence re reliability is not relevant to s
...

“The argument advanced by the Crown, that the confession could still
have gone before the jury because its reliability could be established by
other evidence pointing to the appellant's guilt, is…wholly misconceived
...
76(2)
...
“ Blackburn (2005) EWCA Crim 1349
Moreover it is immaterial whether the actual confession subsequently
turns out to be true
...

Crampton (1991) – ‘the words of the subsection seem to postulate some
words spoken by the police or acts done by them which were likely to
induce unreliable confessions
...
What the provision of s
...
It is quite plain that if those acts and words are of such a quality,
whether or not the confession is in fact true, it is inadmissible
...
App
...
369 at 372

 The issue under s
...
In summary, the
message the provision conveys is that the police should not abuse
their power to oppress a suspect into making a confession and
they should not adopt other techniques of interrogation likely to
lead to an unreliable confession
...
76 thus
reflect the two dimensions of legitimate verdicts
...


17

External requirement of s
...

In R v Goldenberg the defendant was a heroin addict who had been
charged with conspiracy to supply diamorphine
...
On appeal against
conviction he argued that the confession should have been excluded at
trial as being unreliable because it might have been made in the hope that
he would be granted bail
...
They were limited to something external to that person
and to something likely to have some influence on him
...
Implicit in this decision is a finding not only that the
police had not held out any inducement to the defendant to confess but
also that the mere holding of the interview in response to his request was
not itself something said or done likely to produce an unreliable
confession
...
76(2)(b) is with behaviour-influencing
methods of dealing with suspects, this decision looks right on the facts
...
It is regarded
as an issue for the jury not one of admissibility for the judge
...
76 does not rule out a possibly unreliable confession by a
person of very low IQ if there was nothing ‘said or done’ likely to
influence the person into making a confession
...

Relevance of personal characteristics and breaches of PACE
•

Delaney (1988)
The defendant was convicted of indecent assault on a girl aged three
...
The defendant was aged 17,
educationally abnormal with an IQ of 80, and there was psychological
evidence that he was subject to quick emotional arousal, which might lead
him to wish to rid himself of an interview as quickly as possible
...
These
suggestions might well have been enough on their own to justify
exclusion of the confessions under para
...
Even if well - intentioned,
they were things said which were likely to produce from this vulnerable
defendant a false confession in order to escape the pressure of the
interview
...
It was held that these
deprived the court of the best evidence of what was said and done during
the interviews
...
76(2)(b)
particularly given the suggestions made by the police
...
It is no part
of the duty of the court to rule a statement inadmissible simply in
order to punish the police for failure to observe the Codes of
Practice”
“By failing to make a contemporaneous note, or indeed any note, as soon
as practicable, the officers deprived the court of what was, in all
likelihood, the most cogent evidence as to what did indeed happen during
these interviews and what did induce the appellant to confess
...

Was it mere laziness or was it something more devious? Was it perhaps a
desire to conceal from the court the full truth of the suggestions they had
held out to the defendant? These are matters, which may well tip the
scales in favour of the defendant in these circumstances and make it
impossible for the judge to say that he is satisfied beyond reasonable
doubt, and so require him to reject the evidence
...
He would experience what we have already described, the
heightened sense of arousal from which he would want to escape
...
We think
that it was this long-term prospect, as Mr
...
The appellant may have felt
it was easier to get away from the unpleasant state of arousal by *
19

•

making these confessions, particularly in the light of the suggestion
that what was required was treatment rather than prison
...
”

McGovern: “The fact that the confession was in substance true is expressly
excluded by the Act as being a relevant factor”
• Aged 19, six months' pregnant and of limited intelligence (mental age of
10), arrested on a charge of murder
• She was physically ill before the interview and emotionally distressed
during it
• The things ‘said and done’ by the police consisted of:
• Denial to access to a solicitor (breach)
• Breaches of the recording requirements - No record or
contemporaneous note (breach)
 The CA held that the confession (to murder) should have been excluded
on the ground that the prosecution had failed to discharge the burden of
proof under s
...
It was said that the denial of access to a solicitor
was likely to render any confession by this defendant unreliable in the
circumstances
...

 Assumed for the purposes of the appeal that the police had not acted in
bad faith
 “He submits that there are four grounds for saying that the confession
was made in consequence of things said or done which were likely in the
circumstances existing at the time to render the confession unreliable
...
While it appears that grounds three
and four, thus described, are hardly within the rubric of “anything said or
done,” they do form the background upon which the submission is made
that the confession was unreliable
...
It follows that the
prosecution has not in our judgment proved otherwise
...

Clegg is right, that if a solicitor had been present at the time this mentally
20



backward and emotionally upset young woman was being questioned, the
interview would have been halted on the very basis that her responses
would be unreliable
...

Conviction quashed



This case illustrates the impact of s
...
In a second
interview a day later, with a solicitor present, the defendant had made a
longer, more detailed and more coherent confession
...
It was tainted by the first confession in
the sense that the second interview was a direct consequence of the first
interview, but the solicitor had not been informed of the breach of s
...
Had she been she might have prevented the second interview
taking place
...
”

 The phrase ‘anything said or done’ is much wider than the notion
of an inducement at common law
...
It also includes such matters as the length
of detention and the number of interviews
...
76(2)(b) requires the court to take into account a number of
factors and the question that it must address is quite complex
...
76(2)(b)
...
B was charged and appeared before the magistrates the
next day, where his counsel advised him to exercise his right of silence
...
The CA, which

21

determined that B’s confession had been wrongly admitted at trial, explained
that s
...

o The court must identify everything said or done extending back to the
date of B’s arrest and to the interview at which B had been told that it
might be of some good to him if he helped the police
o The court should then look at what had been said or done against the
background circumstances and ask whether that was likely to render any
confession made by B unreliable – bearing in mind that this test was
hypothetical and that it related to any confession that might be made, not
the particular confession in the case
o The court should decide whether the Crown had proven beyond
reasonable doubt that the confession had not been made as a result of
things said or done
o While breaches of the PACE Codes may lead to exclusion of a confession
under s
...
5, police interviews had taken place of which no record had
been made
...

 If not recorded this will have direct bearing on reliability – Barry
(1991) 95 Cr App R 384
Policy failures to comply with what may be called the due process requirements
of PACE are a common feature of the cases under s
...
Thus breach of the
statutory right of access to legal advice may well lead the court to conclude that
the prosecution cannot discharge the burden of proof
...

Everett – CA quashed the conviction of the defendant for indecent assault
...
The defendant was aged 42, but had a mental age of eight
...
Such a person could presumably have been
expected to exercise a protective role for the defendant
...
78 of
PACE
...
78
 A confession which passes the test of admissibility in s
...
78
...

 Section 78: The Alternative Avenue for Exclusion of Evidence Adduced by
the Prosecution
 Remember – it only applies to evidence adduced by the
prosecution
 -Discretionary
s
...
(1) In any proceedings the court may refuse to allow evidence on
which the prosecution proposes to rely to be given if it appears to
the court that, having regard to all the circumstances, including the
circumstances in which the evidence 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
...
78 gives the trial judge a discretion to exclude any evidence on which the
prosecution propose to rely, including evidence admissible under other statutory
provisions
...

The wide terms of the section have very largely swallowed up the discretion at
common law to exclude prosecution evidence in order to ensure a fair trial for
the accused
...
78 is where a confession has already been
given in evidence
...
Mason confesses
...

• “…The police practised a deceit not only upon the appellant, which is bad
enough, but also upon the solicitor whose duty it was to advise him
...
That was a most
reprehensible thing to do
...
This is not the place to discipline
the police
...
So the only question to be
answered by this Court is whether, having regard to the way the police
behaved, the judge exercised that discretion correctly
...
He omitted a vital factor from his consideration, namely the
deceit practised upon the appellant's solicitor
...

 Following the decision in Mason defense counsel can have at least two
bites at the exclusionary cherry
...
76
...

Most of the jurisprudence of s
...

The general principle established by the leading cases of Absolam,
Keenan, Walsh is that only breaches that are ‘significant and
substantial’ are likely to affect the fairness of the proceedings so
adversely that the evidence of the confession ought not to be
admitted
...
78
...



Absolam (1988) breaches of PACE must be ‘significant and substantial’

Breach of the right to legal advice:
•

Samuel (1988)
- Access to legal advice was described by the CA as a ‘fundamental
right’
...
58 of PACE imposes a duty on the police to grant a suspect access to
legal advice on request
...

- S58(1) of PACE provides:
'A person arrested and held in custody in a police station
...
All detainees are entitled to free legal advice
regardless of means, at a cost of nearly £200 million /annum, and the
police are obliged to make this known to the suspects
...
Under s
...


In Samuel, the CA gave real substance to the test of reasonable
grounds
...
It will not be sufficient that the officer has a generalized fear
that the solicitor may unwittingly carry a message from the suspect
alerting his accomplices
...

Where access is refused or delayed for a reason bad in law, a
distinction has been suggested between cases of bad faith and
good faith, where the police are merely mistaken about the
extent of their powers
...
58) denied - confession should have been
excluded
...
The defendant had admitted burglary after being
interviewed four times but had consistently denied the robbery
...

•

Alladice (1988) 87 Cr
...

– Trial judge was right not to exclude as the defendant was familiar with
his rights
– CA took the view that the defendant was well aware of his right to
silence and was capable of using it if he wished
...

– If the police had acted in bad faith in refusing access, the court would
have little difficulty in ruling any confession inadmissible
...
In Samuel the CA held that a confession to robbery ought to have been
excluded when made following the police’s second refusal to allow a defendant
to see his solicitor
...
The court accepted that the
D’s experienced solicitor would have advised him to answer no further questions
and that the D would have accepted that advice
...
The court reasoned therefore that the denial of
access had not placed the defendant at any material disadvantage
...
No understanding of rights
Police asked if he was ‘happy to be interviewed in the normal way we
conduct these interviews, without a solicitor, friend or representative
...

Keenan (1990) 2 QB 54

26

•

•

The defendant has been committed for trial on a charge of possessing an
offensive weapon
...
After committal, the prosecution
served two statements as additional evidence from the arresting officers
recording admissions about the spear made by the defendant in an
interview at the police station
...
Having
stated that these were significant and substantial breaches, the CA
quashed the conviction
...
If his
case was that the admissions were fabricated, he would effectively be
forced to give evidence to this effect
...
If the
case was that the interview was inaccurately recorded he was
handicapped by having been given no cotemporaneous opportunity to
correct any inaccuracies and he had no contemporaneous note of his own
...
The breach must be ‘significant and substantial…if this
were not the case the courts would be undertaking a task which is
not part of their duty…[punishing the police]
...

- The CA found that breaches of the recording requirements were
‘flagrant, deliberate and cynical’
...

The officers had also failed to show the record to the defendant for
verification
...
They had deprived the judge of the best evidence to enable
him to decide on the defendant’s submissions that the confessions he
made in later, properly recorded, interviews had been induced by
tricks by the police in the earlier, improperly recorded interviews
...

- Bad faith of the officers concerned

The degree of unfairness will be lessened if on the facts the risk of verballing is
not strong
...

The confession admitted to kidnapping and assaulting the victim who had been
stripped of his clothes in the attack
...
The judgment did not spell out the reason for
the decision, but it is not difficult to distinguish the case from Keenan
...

Similarly the finding was highly incriminating and meant that the defendant
would probably need to testify in any event to stand any chance of acquittal
...

The case was concerned with the meaning of the term ‘interview’
...
11
...
10
...
Paragraph 10
...

‘A person whom there are grounds to suspect of an offence, must be cautioned
before any questions about an offence, or further questions if the answers
provide the grounds for suspicion, are put to them if either the suspect’s answers
or silence may be given in evidence to a court in a prosecution
...
g
...
g
...
Peculiarities of spelling or expression may help to identify the
accused as the perpetrator of the offence
...

Suspicion fell on the defendant
...
He agreed and proceeded to write
out ‘Bladie Belgiam’
...

NOW - s
...
’
Nottle (2004) EWCA Crim 599
N was charged with having committed criminal damage to eighty-three cars in a
compound
...
On some of the
cars, the offender, clearly neither a master criminal not a scholar, has petulantly
scratched the words, ‘F*** you Jutin’
...

On each occasion N wrote ‘Jutin’ for ‘Justin’
...
76(4)(b)
...
If the confession is inadmissible because of the way in which it was
obtained, two questions arise about the evidence of the subsequently discovered
facts
...
76 (2)
...

Can any evidence be given of the facts discovered as a result of the inadmissible
confession? If so, can evidence be given that they were discovered as a result of a
statement by the accused?
29

s
...
76 (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 his behalf
...

(6) Subsection (5) applies –
(a) to any fact discovered as a result of a confession which is wholly
excluded in pursuance of this section; and
(b) 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
...
Thus, the murder weapon would be admissible
in its own right if it were recovered from the suspect's tool shed or bore
his fingerprints, etc, but not if it were found in the middle of a field and
could not be connected to the suspect in any other way than through his
knowledge of its location
...

What is the ‘fruit of the poisoned tree’ doctrine? An extension of the exclusionary
rule established in Silverthorne Lumber Co
...
United States, 251 U
...
385 (1920)
...
Thus, if an illegal
interrogation leads to the discovery of physical evidence, both the interrogation
and the physical evidence may be excluded, the interrogation because of the
exclusionary rule, and the physical evidence because it is the “fruit” of the illegal
interrogation
...
Section 76(4)(a)
makes clear that the admissibility of the subsequently discovered facts is not
tainted by the exclusion of the confession
...
In order to be relevant to the issue of the accused’s guilt, the facts
must tend to incriminate the accused
...

 The evidence is admissible only if it is relevant
...
Part of the confession disclosed that the knife used in
the murder had been thrown into a particular spot in Hong Kong harbour
...
The Judicial Committee of the PC held that
the video should have been excluded as merely a repetition of an unlawfully
obtained confession
...
The evidence of the location of the murder weapon, without evidence of
the confession, was irrelevant to guilt and so inadmissible
...


•
•

A confession by one defendant is not evidence against another (R v
Spinks)
S
...


Myers (1998) HL
•

•

CA certified questions: 'In a joint trial of two defendants, A and B, is an out
of court confession by A which exculpates B but which is ruled, or is
conceded to be, inadmissible as evidence for the Crown nevertheless
admissible at the instigation of B in support of B's defence, or does such a
confession in all circumstances offend the rule against hearsay?‘
Defendant can rely on confession of co-accused if assists D’s defence

Mixed Statements
This is a statement that is partly an admission and partly an exculpatory or selfserving statement
...

What constitutes a ‘mixed statement’? Evans LJ in Garrod (endorsed in
Papworth and Doyle): ‘where the statement contains an admission of fact which
is significant to any issue in the case, meaning those which are capable of adding
some degree of weight to the prosecution case on an issue which is relevant to
guilt, then the statement must be regarded as ‘mixed’ for the purposes of this
rule’
When an out-of-court self-serving statement stands on its own, it is not
generally admissible
...

When such self-serving statements accompany incriminating statements,
the courts have balked at requiring trial judges to direct juries that the
incriminating parts are evidence of their truth, but that the exculpatory parts are
not and are something less
...
In this
sense the jury are exceptionally permitted to treat the favorable (incriminating)
parts as evidence of their truth
...
However, the judge may also tell the jury
that the favorable (incriminating) parts may deserve less weight because of the
ease with which they can be manufactured
...

 These principles apply not just to mixed statements made to the police
but to any mixed statement tendered by the prosecution
...
However the rule is subject to the residual power of
the judge to withdraw the case from the jury where certain conditions apply to
render a conviction unsafe
...
J
...
The confessions may be
unconvincing, for example, because they lack the incriminating details to be
expected of a guilty and willing confessor, or because they are inconsistent with
other evidence, or because they are otherwise inherently improbable…When the
three conditions tabulated above apply at any stage of the case, the judge should,
in the interests of justice, take the initiative and withdraw the case from the jury
...
77 – The trial judge’s duty in the present context was elaborated in Bailey
(1995) where the CA explained:
‘What is required of a judge in a summing up in such cases…is a full and proper
statement of the mentally handicapped defendant’s case against the confessions
being accepted by the jury as true and accurate
...
’
Factors that the trial judge ought specifically to mention include:
- The role that an independent adult might have played, had one been
present, in protecting the accused’s interests
- General observations about the propensity of ‘mentally handicapped’
persons to make false admissions,
33

-

Matters pertaining directly to the accused’s personal vulnerabilities
It would be wise for the judge to warn the jury quite explicitly of the
‘special need for caution’ in any case where s
...
77 is a serious matter
...
76(2)(b), owing to this significant
failure to comply with s
...

 The CA is also inclined to take a dim view of a trial judge’s failure to deliver
the requisite warning under PACE, s
...

Lamont (1989) – L had the reading age of a child of 8 and an IQ 73
...

The practical scope for activating the judicial discretion mandated by s
...
A
confession obtained from a mentally handicapped suspect in the absence of an
independent support person would normally be a strong candidate for exclusion
under section 76(2) (b) or submission of no case to answer under Galbraith test
...
77
...
77 is only used rarely – usually the evidence will be
inadmissible under Galbraith or s
...

Admissions of co-accused
PACE s
...
128)

34

(1) In any proceedings a confession made by an accused person may be given
in evidence for another person charged in the same proceedings (a co-accused)
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
...

(3) Before allowing a confession made by an accused person to be given in
evidence for a co-accused in any proceedings, the court may of its own motion
require the fact that the confession was not obtained as mentioned in subsection
(2) above to be proved in the proceedings on the balance of probabilities

---