INTRODUCTION

This fact sheet describes the law of evidence as it relates to confessions of defendants in criminal cases.

DEFINITION

A confession is the name given to an admission made by a defendant in criminal proceedings.

Under the Police and Criminal Evidence Act 1984 (PACE) section 82, a confession is defined as;

“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”.

THE GENERAL RULE OF ADMISSIBILITY

The general rule is that a confession is admissible evidence against the person who made it, despite the confession being technically hearsay (s.76(1) PACE).

EXCEPTIONS TO THE GENERAL RULE

Where it is proposed by the prosecution to give evidence of a confession in court, and the defence makes a representation to the court that the confession was or may have been obtained by;

	oppression or
	in consequence of anything said or done which, in the circumstances existing at the time the confession was made, render any confession made unreliable,

the court shall not allow the confession, unless the prosecution can prove beyond reasonable doubt that the circumstances alleged did not exist (i.e., the onus rests with the prosecution to negate allegations of oppression or unreliability).

Oppression - is defined in S.76(8) as including, “torture, inhuman or degrading treatment and the use of or threat of violence”.

This definition has been widened by R v Fulling to include the “burdensome or harsh exercise of authority”.

Oppression may also cover bullying of a suspect (but not swearing at him/her). It should be noted that allegations of oppression are very unlikely to be accepted if the suspect was interviewed with his/her lawyer present.

Unreliability - Case law has offered examples of the scope of conditions etc. found to make confessions unreliable, and such circumstances include:

	Prolonged periods of confinement.
	Inducements offered, e.g., “if you confess, we will drop the corporate manslaughter charge” etc.
	Confessions made to shield someone else.
	Confessions made by suspects with a low IQ or fragile mental condition.
	Where there were breaches of the PACE Codes of Practice.

PACE CODE C - THE DETENTION, TREATMENT AND QUESTIONING of SUSPECTS

PACE s.66 provides for codes of practice to be made, and S.67 provides that police officers; any other person charged with the duty of investigating offences, and the courts shall all take account of the codes.

PACE Code C “Code of Practice for the Detention, Treatment and Questioning of Persons by Police Officers” contains the detailed arrangements that police officers and others should have regard to; and of particular importance to confessions, and the issues of oppression or unreliability include:

(a) the right for suspects to be able to telephone someone to inform them of his/her whereabouts;

(b) the right to have access to a lawyer (which is also within PACE itself at S.58) and to consult privately with that person;

(d) a prohibition on inducements being given, or the suspect’s prospects at trial;

(e) the provision of an “appropriate adult” where the suspect is under 17 years old;

(f) that any written interviews to be signed by the maker;

(g) that adequate breaks be provided during periods of questioning and detention; and

(h) that cells be clean and light etc.

In determining whether breaches of Code C have resulted in a confession being inadmissible due to oppression or unreliability, the courts will generally determine whether the effect of the breaches are significant and substantial. (R v Keenan).

Where facts are discovered after a suspect’s confession (e.g., guns being discovered after a suspect said “the guns that I used to carry out the robbery are in Bob’s lock-up at ........”) and a confession is subsequently excluded by the court, those facts are still admissible (S.76), but the evidence must be linked to the suspect by means other than the excluded confession.

PACE S.78 - DISCRETION TO EXCLUDE EVIDENCE

PACE S.78 provides the court with the discretion to exclude otherwise admissible evidence which the prosecution proposes to use, where having regard to all the circumstances, including how the evidence (e.g., a confession) 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.

This section provides the defence with an additional weapon with which to get a confession excluded by the court, and if a confession is disputed, the defence will usually run both defences at the same time e.g., allege the confession is unreliable, and unfair.

COMMON LAW EXCLUSIONARY DISCRETION

In addition to the exclusionary discretion found in S.78 PACE, the common law also provides for the court to exclude any otherwise admissible evidence where the probative value of the evidence (i.e., what it proves) is outweighed by the prejudice to the defendant in putting the evidence forward. (R v Sang).

It is now rare, however, for the common law exclusionary discretion to be relied on, now that PACE S.78 exists.

REFERENCES

The Police and Criminal Evidence Act 1984 (PACE)

PACE CODE C “Code of Practice for the Detention, Treatment and Questioning of Persons by Police Officers”

R v Fulling (1987) QB 426

R v Keenan (1989) 2 All ER 598

R v Sang (1980) AC 402.

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