A more recent version of these Confessions And Opinion Evidence notes – written by Oxford students – is available here.
The following is a more accessble plain text extract of the PDF sample above, taken from our Criminal Procedure and Evidence Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:
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. o 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. o 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. o 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. o 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 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 selfdefence', 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 o 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. o 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'. o 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: o 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" o 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:
? 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. o 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). o 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 get bail and get credit for helping police. o Held that his confession was rightly admitted because 'anything said or done' didn't mean things said or done by the maker of the statement. The phrase 'in consequence' of' showed a causal link was needed between what was said/done and the subsequent confession.
? So needed something external which was likely to have an influence on G.
? Crampton: C was heroin addict held by the police. He went into withdrawl symptoms but the police thought he was fit to be interviewed. C then alleged that he confessed only because of them holding the interview. o CA disagreed, saying the police had not said or done anything to cause the confession to come about, it was caused by the withdrawal. o Went further than Goldenberg - doubted whether even interviewing someone undergoing heroin withdrawal was something 'said or done'. Seems to point towards it applying to words and actions of interrogators.
? This case is doubted - if we are trying to get rid of unreliable evidence then it shouldn't matter whether or not there was a causal link. Judge should take into account the circumstances existing at the time:
? Everett: should have taken into account the circumstances of E's mental condition.
? Walker: should have taken into account that W suffered severe personality disorder that might make her make statements of guilty falsely without considering the implications.
Wahab - shows limits - even though W confessed with, what he said, was a view to allowing his family to leave police custody, the judge did not need to consider these motives. He had made the initial move to confess, the police acted properly and he knew what he was doing. It was not something that affected the reliability of the confession.
Where inducements were offered to D in Roberts:
? R worked in a cash converter store and an ipod went missing from the stock. He used the ipod on his dailu commute and this was spotted by his manager. His manager said that if he confessed then the manager wouldn't call the police, but that if he didn't confess then he would. R confessed and the manager called the police. The prosecution said that R said nothing after the police were called and that the confession was therefore reliable - silence.
? CA held that the confession could not be found to be reliable because an inducement was offered for him to make it. o Go over this case - silence stuff o Says in these circumstances you cant use the silence after manager phoned police to corroborate the evidence. So in an ambiguous case, don't use the silence to corroborate the reliability of the confession. Further exclusionary powers Exclusionary powers under s78 - where admission of the confession might reflect adversely on the fairness of proceedings Even if confession not inadmissible under s76, the court has discretion to exclude under s78.
- Under this court will consider breaches of PACE Code C, which lays down procedures for questioning.
- Court will assess the gravity of the breach of PACE in determining whether it will justify exclusion of the confession. o Absolam: where the breaches are significant and substantial the court may conclude that the confession will impact the proceedings unfairly. Mason:
? M accused of arson and police invented a fingerprint on the bottle and lied about it to M and his solicitor. His solicitor told him to come clean.
? Decided this did not render the confession unreliable under PACE but could be excluded under s78 because it would adversely impact the fairness of proceedings. Typical situations in which breach of Code C leads to contesting admission of a confession:
? Being informed of one's rights o Beycan: B not informed of rights and was relatively unsophisticated interviewee whose native tongue not English. CA said confession should be excluded.
? Right to legal advice o Code C reinforces s58 right to legal advice. o Samuel: S refused legal advice and his confession was excluded. o Judge will look at the effect of withholding legal advice was in the case and determine whether the effect is to adversely impact upon proceedings. o Alladice: A said he understood his rights in the interview and was well able to answer questions. Said he just wanted solicitor to check on the police during interview. Court
Buy the full version of these notes or essay plans and more in our Criminal Procedure and Evidence Notes.