Confession Evidence Confession Any statement wholly or partly adverse to the person who made it, whether made

to a person in authority or not, whether made in words or otherwise (s82 PACE) - A wholly adverse statement is said to be inculpatory (most confessions) - A statement wholly in the makers favour at the time it was made is said to be exculpatory or self serving: Hasan [2005] 2 WLR 709 - A statement partly in the makers favour and partly against is called a mixed statement - Confessions may include written or oral statements, gestures or conduct: Li Shu-ling [1988] 3 All ER 138 Scope of the Rules - Confessions are usually made by a suspect to a police officer, but also include statements made to other persons HM Revenue & Customs: Seelig Spens [1991] 4 All ER 429 Store detective: Bayliss (1994) Cr App R 235 Probation officer: Ellaray [2003] 2 Cr App R 11 A letter written by the defendant to his wife: Rumping v DPP [1964] AC 814 - Codes of Practice will apply to any body charged with the duty of investigating offences: s 67(9) PACE Why Regulate Confession Evidence - To guard against possibility of false confessions being admitted - To grant protection to the suspect against ill-treatment by interrogators - To protect the moral legitimacy of the criminal process - To provide a means to ensure that as far as possible the confession will be reliable The Position Prior to PACE - Prior to PACE, exclusion was based on principle (e) of the Judges' Rules: It is a fundamental condition of the admissibility in evidence against any person, equally of any oral answer given by that person to a question put by a police officer and of any statement made by that person, that it shall have been voluntary, in the sense that it has not been obtained from him by fear of prejudice or hope of advantage, exercised or held out by a person in authority, or by oppression. - Enshrines principle of voluntariness as per Ibrahim [1914] AC 599 Exclusion Under PACE - s 76(2)(a) - Oppression - s 76(2)(b) Unreliability - s 78 - Judicial discretion The Burden of Proof - D bears an evidential burden to raise it as an issue in the voir dire - Prosecution must then prove beyond reasonable doubt that any of the circumstances contained in s 76 do not apply - No burden of proof recognised in relation to s 78 A Question of Law or Fact? - Decision to admit / exclude confession is a matter of law for trial judge - Task of ascertaining the truth of confession is a matter of fact for the jury - But defence gets second bite the jury may also act as adjudicators of law:

Mushtaq [2005] UKHL 25: Even where judge refuses to exclude confession, it is still open to the defence to argue that the jury ought to disregard the confession if they judged s 76 to have been violated Oppression - s76(8) PACE: oppression includes torture, inhuman or degrading treatment, and the use or threat of violence (whether or not amounting to torture) - Fulling [1987] 2 All ER 65 : the exercise of authority or power in a burdensome, harsh or wrongful manner, unjust or cruel treatmentthe imposition of unreasonable or unjust burdens - Requirement of bad faith Fulling [1987] 2 All ER 65 Includes psychological as well as physical abuse: Paris, Abdullahi and Miller (1993) 97 Cr App R 99 - Covers catalogue of errors Davison [1988] Crim LR 8 Relevance of personal characteristics Seelig [1991] 4 All ER 429 The need for a causal link R v Gillard and Barrett (1991) 92 Cr App R 61 Unreliability s76(2)(b) excludes confessions which might have been obtained in consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession 3 Step Process - R v Barry [1992] 95 Cr App R 384 1. The first step is to identify what was said or done and this should include everything said or done. 2. The next step is to decide whether what was said or done was likely to render a confession unreliable; all the circumstances should be taken into account. The test is hypothetical. 3. Finally, the judge should ask whether the prosecution had proved beyond reasonable doubt that the confession had not been made as a result of what was said or done. Things Said or Done Must emanate from someone other than the suspect (though not necessarily the police) - Harvey [1988] Crim LR 241 - Goldberg (1988) Cr App R 285 - Crampton [1991] Crim LR 277 In the Circumstances Existing at the Time - Everett [1988] Crim LR 826 - Delaney (1988) Cr App R 338 - McGovern (1990) 92 Cr App R 228 - Harvey [1988] Crim LR 241 : Bad faith on part of police is not necessary A Lower Threshold Confessions which do not meet the oppression threshold under s 76(2)(a) may nevertheless be excluded under s 76(2)(b): - Beales [1991] Crim LR 118

Judicial Discretion (s78) In any criminal 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. Common Law Exclusion v s78 - Standard of fairness is the same - Common law confined to prosecution evidence; s 78 can also apply to defence - Section 78 expressly takes into account manner in which evidence is obtained. - Section 78 not limited to confessions and evidence obtained relating to the commission of offence extends to cover any evidence, incl bad character and hearsay - Not every breach of correct procedures will be result in exclusion of evidence. Depends on nature and extent of the breach: Walsh (1989) 91 Cr App R 161, 163: The task of the court is not merely to consider whether there would be an adverse effect on the fairness of the proceedings, but such an adverse effect that justice requires the evidence to be excluded. s78 and Confession Evidence - Every case is to be determined on its own merits: Parris (1988) 89 Cr App R 68 Sparks [1991] Crim LR 128 - Breach must be significant and substantial Absolam (1988) 88 Cr App R 332 - Must be causal connection between the breach and the making of the confession - Is s 78 (im)properly used as an avenue to exclude confession evidence? Key Questions Were the breaches significant and substantial? - If no, evidence is unlikely to be excluded. - If yes, then evidence should frequently be excluded (see Keenan [1990] 2 QB 54) Is there a link between the breach and fairness to the proceedings? - Dunford (1990) 91 Cr App Rep 150 - Khan, Sakkaravej and Pamarapa [1997] Crim LR 508 Did the police act in bad faith? - If yes, this will render exclusion more likely: Matto v DPP [1987] Crim LR 641 - If no, this will render exclusion less likely but it is still possible depending on the severity of the breach: Nathaniel [1995] 2 Cr App R 565 Confessions where D has been Denied Access to a Solicitor Remember s 58? (see Lecture 2) - Samuel [1988] 2 All ER 135: one of the most important and fundamental rights of the citizen Hardened suspects - Alladice [1988] 87 Cr App 380 - Chahal [1992] Crim LR 124 Vulnerable suspects - Franklin [1994] The Times, 16 June - Sanusi [1992] Crim LR 43

Confessions and other Breaches of PACE Failure to record - Canale [1990] 2 All ER 187 - Dunn (1990) 91 Cr App R 237 - Matthews [1990] Crim LR 190 Breaches outside the police station - Maloney and Doherty [1988] Crim LR 523 - Courtney [1995] Crim LR 63 Breaches in good faith - Walsh (1990) 91 Cr App R 161 Tainted confessions - McGovern (1990) 92 Cr App R 228 Facts discovered in Consequence of an Inadmissible Confession - S 76(4): The fact that a confession is wholly or partly excluded under s 76 does not affect the admissibility in evidence of any facts discovered as a result of that confession - Parts of a confession which are relevant as showing that the accused speaks, writes or expresses himself in a particular way are still admissible for that purpose (s 76(4)(b): Voisin [1918] 1 KB 531 (bladie belgiam) Confessions and Co-Defendants Scenario A: - D1 confesses and exonerates D2. - Confession is ruled out by trial judge under s 76 - Prosecution cannot rely on it but can D2? Answer: Yes, but only if D2 can prove on the balance of probabilities that one of the circumstances under s 76 did not apply. (s76A PACE, as amended by CJA 2003) Scenario B: - D1 confesses and exonerates D2. - Confession is ruled out by trial judge under s 78 - Prosecution cannot rely on it but can D2? Answer: Yes, if deemed relevant to his defence Myers [1998] AC 124 Scenario C: - D1 confesses and implicates D2. - Can prosecution rely on the confession as part of their case against D2? Answer: The confession is only evidence against D1. However, if the jury convict D1 they may use that finding as evidence of the guilt of D2 s77: Confessions by Mentally Handicapped Persons Where the prosecution case against a mentally handicapped person relies wholly or substantially on a confession that was not made in the presence of an independent person, the court shall warn the jury of the special need for caution before convicting the accused in reliance on the confession. - J [2003] EWCA Crim 3309 - Lamont [1989] Crim LR 813 - McKenzie (1993) 92 Cr App R 369