Confession

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Confession

A confession is defined by section 82 PACE 1984: “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.

Section 76 PACE 1984 provides

Section 76 PACE 1984

(1) In proceedings a confession made by an accused person may be given in evidence against him in so far as it is relevant to any issue in the proceedings and is not excluded by the Court in pursuance of this section.
(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 would was likely in the circumstances existing at the time to render unreliable any confession which might be made by him in consequence thereof.
(3) In any proceedings where the prosecution proposes to give in evidence a confession made by an accused person the court may of is 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.
(4) The fact that a confession is wholly or partly excluded in pursuance of this section shall not affect the admissibility in evidence-
(a) of any facts discovered as a result of the confession ; or
(b) where the confession is relevant as showing that the accused speaks, writes or expresses himself in a particular way, of so much of the confession as is necessary to show that he does so
(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 on his behalf.
(6) Subsection (5) above 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.
(7) Nothing in Part VII of this Act shall prejudice the admissibility of a confession made by an accused person.
(8) In this section “oppression” includes torture, inhuman or degrading treatment, and the use or threat of violence (whether or not amounting to torture).
(9) Where the proceedings mentioned in subsection (1) above are proceedings before a magistrates’ court inquiring into an offence as examining justices this section shall have effect with the omission of—
(a) in subsection (1) the words “and is not excluded by the court in pursuance of this section”, and
(b) subsections (2) to (6) and (8).]

R v Goldenberg (1998) 88 CAR 285, suggests that the phrase in s76(2), “anything said or done” does not extend to things said and done by the defendant himself. In Goldenberg one issue said to affect the reliability issue was the defendant’s anxiety to obtain bail for himself, or to obtain credit for helping the police. It was held that s76(2) was concerned with something extraneous to the person making the confession.


Section 128 Criminal Justice Act 2003: Confessions

Section 128 inserts section 76A of the Police and Criminal Evidence Act 1984. The position prior to the insertion of this new section 76A was that whilst the prosecution could not make use of a confession which was obtained in breach of sections 76 or 78 of the Police and Criminal Evidence Act 1984, a co-defendant could use it to undermine another co-defendant's account or to strengthen their own case. Instead, section 76A applies the same rules to confessions adduced by the co-defendant to those adduced by the prosecution under sections 76 and 78 of PACE. That is, the confession will not be allowed if obtained by oppression or is rendered unreliable. 'Oppression' is defined in identical terms to section 76(8) of PACE.

Unlike the requirements for the prosecution, under section 76A(2), the co-accused would only need to satisfy the court on the balance of probabilities that the confession was not obtained by oppression or in circumstances likely to render it unreliable.

Subsection (4) maintains the rule that the exclusion of a confession does not affect the admissibility of facts discovered as a result of that confession.

Y, R v (25 January 2008)

Y, R v [2008] EWCA Crim 10 (25 January 2008) A ruling relating to the admission of hearsay evidence under s114(d), whilst properly labelled an evidentiary ruling, may also come within the type of rulings that could be appealed by the prosecution under section 58 Criminal Justice Act 2003. The ruling in this case related to a hearsay statement implicating the defendant, made by a co-defendant who had pleaded guilty to the charge.

Before the court can grant leave to admit such a statement (under the fourth head above and found in subsection (1)(d)), it must be satisfied that it is in the interests of justice to admit the evidence. The intention, therefore, is that the court should be able to admit an out-of-court statement which does not fall within any of the other categories of admissibility, where it is cogent and reliable.

Subsection (2) In deciding whether a statement not made in oral evidence should be admitted under subsection (1)(d), the court must have regard to the following factors (and to any others it considers relevant)—

(a) how much probative value the statement has (assuming it to be true) in relation to a matter in issue in the proceedings, or how valuable it is for the understanding of other evidence in the case;
(b) what other evidence has been, or can be, given on the matter or evidence mentioned in paragraph (a);
(c) how important the matter or evidence mentioned in paragraph (a) is in the context of the case as a whole;
(d) the circumstances in which the statement was made;
(e) how reliable the maker of the statement appears to be;
(f) how reliable the evidence of the making of the statement appears to be;
(g) whether oral evidence of the matter stated can be given and, if not, why it cannot;
(h) the amount of difficulty involved in challenging the statement;
(i) the extent to which that difficulty would be likely to prejudice the party facing it.

The list is intended to focus attention on whether the circumstances surrounding the making of the out of court statement indicate that it can be treated as reliable enough to admit it as evidence, despite the fact that it will not be subject to cross-examination.

Subsection (3) provides that out of court statements may still be excluded even if they fulfil the requirements in this Chapter. For example, confessions must meet the additional requirements of sections 76 and 78 of the Police and Criminal Evidence Act 1984 before admission.

R Johnson, Court of Appeal, (11 July 2007)

R Johnson, Court of Appeal, 11 July 2007. A plea of guilty and a written basis for that plea was admissible at the behest of a co-defendant (s76A Police and Criminal Evidence Act 1984).

Musone v R. (23 May 2007)

Musone v R. [2007] EWCA Crim 1237 (23 May 2007) This appeal raises significant issues both as to the hearsay provisions and the bad character provisions in the context of a "cut-throat" defence, and in particular the impact of the procedural rules on the substantive provisions relating to admissibility. Ground 3: Admissibility of allegations made by a co-defendant not called to give evidence

Finch, R v (15 January 2007)

Finch, R v [2007] EWCA Crim 36 (15 January 2007) re: Section 76A PACE 1984: which enabled a confession made by a co-accused to be given in evidence for another person charged in the same proceedings, did not apply where that co-accused had pleaded guilty and therefore no longer stood trial with the defendant. The co-accused was no longer a person charged in the same proceedings for the purpose of section 76A “Confessions may be given in evidence for co-accused”. Times Law Report R v Finch: Where a co-accused had pleaded guilty and did not stand trial with a defendant, the co-accused’s confession could not be used as evidence at that defendant’s trial. (under section 76A of the Police and Criminal Evidence Act 1984)

Wahab & Anor, R v (26 June 2002)

Wahab & Anor, R v [2002] EWCA Crim 1570 (26 June 2002) Where defendant have been given appropriate and proper advice by his solicitor, such advice could not give any ground for the exclusion of a subsequent confession under Police and Criminal Evidence Act 1984, s 76(2)

Codes of practice: oppression

Code C11.5 No interviewer may try to obtain answers or elicit a statement by the use of oppression. Except as in paragraph 10.9, no interviewer shall indicate, except to answer a direct question, what action will be taken by the police if the person being questioned answers questions, makes a statement or refuses to do either. If the person asks directly what action will be taken if they answer questions, make a statement or refuse to do either, the interviewer may inform them what action the police propose to take provided that action is itself proper and warranted.

Code C10.9 When, despite being cautioned, a person fails to co-operate or to answer particular questions which may affect their immediate treatment, the person should be informed of any relevant consequences and that those consequences are not affected by the caution. Examples are when a person’s refusal to provide:

  • their name and address when charged may make them liable to detention;
  • particulars and information in accordance with a statutory requirement, e.g. under the Road Traffic Act 1988, may amount to an offence or may make the person liable to a further arrest.

The confession must be voluntary

In Wong Kam-ming v. The Queen [1980] A.C. 247, 261 Lord Hailsham of St. Marylebone made these observations:-

"... any civilised system of criminal jurisprudence must accord to the judiciary some means of excluding confessions or admissions obtained by improper methods. This is not only because of the potential unreliability of such statements, but also, and perhaps mainly, because in a civilised society it is vital that persons in custody or charged with offences should not be subjected to ill-treatment or improper pressure in order to extract confessions. It is therefore of very great importance that the courts should continue to insist that before extra-judicial statements can be admitted in evidence the prosecution must be made to prove beyond reasonable doubt that the statement was not obtained in a manner which should not be reprobated and was in the truest sense voluntary." Their Lordships consider that no judge properly directing himself to the whole state of the evidence in this case could have reached any other conclusion but that the Crown had failed to prove that the statements were voluntary to the high standard which is required. In the result they were inadmissible and, as the Crown case against the appellant was entirely dependant on these statements, the case against him should have been dismissed for lack of evidence.
Oppression

Oppression includes torture, inhuman or degrading treatment, and the use or threat of violence. PACE 1984, section 76(8).

Regina v. Mushtaq [2005] UKHL 25 (21 April 2005)
Held: When a defendant's confession was admitted before a jury following the judge's ruling, pursuant to s 76(2) of the Police and Criminal Evidence Act 1984, that the confession was not obtained by oppression or in consequence of any improper conduct by the police, the judge was required to direct the jury that if they concluded that the confession was obtained by oppression or other improper means they must disregard it.

Fulling, R. v [1987] EWCA Crim 4 (17 February 1987)
Lord Lane CJ, giving the judgment of the Court of Appeal, concluded that:

"'oppression' in section 76(2)(a) should be given its ordinary dictionary meaning. The Oxford English Dictionary as its third definition of the word runs as follows: 'Exercise of authority or power in a burdensome, harsh, or wrongful manner; unjust or cruel treatment of subjects, inferiors, etc.; the imposition of unreasonable or unjust burdens.' One of the quotations given under that paragraph runs as follows: 'There is not a word in our language which expresses more detestable wickedness than oppression.'
We find it hard to envisage any circumstances in which such oppression would not entail some impropriety on the part of the interrogator."

An interview that lasted 13 hours, during which the police shouted at the suspect what they wanted him to say but where the suspect denied involvement over 300 times was held to be oppressive. R v Paris (1993) 97 Cr. App. R. 99; [1994] Crim LR 361, CA.

In contrast, a 75 minute interview conducted at a slow pace which gave the suspect time to consider his replies, in which police officers had raised their voices, but not shouted, was held not to have been oppressive. R v Heaton [1993] Crim LR 593, CA

The court is entitled to consider the character and experience of the suspect in deciding what is oppressive or likely to make a confession unreliable. R v Seelig, 94 Cr. App. R. 17, CA

Unreliability

Examples where confessions have been held to be made in circumstances making them likely to be unreliable include:

  • where a suspect was not given proper rest R v Trussler [1988] Crim LR 446
  • Where a suspect was not cautioned at the start of an interview, R v Doolan [1988] Crim LR 447
  • where the police failed to make a proper record of an interview in breach of the Codes of Practice R v Delaney [1988] TLR 30 August, CA

A confession may be held to be unreliable if it was made as a result of an inducement R v Matthias [1989] TLR, 24 August This will include saying anything that makes the suspect believe that confessing will lead to more favourable treatment, or anything that sounds like a promise for the future. See also PACE Codes of Practice C11.5.

Evidence obtained as the result of a trick

Whilst Section 78 PACE has not altered the substantive law that neither entrapment nor the use of an agent provocateur in themselves will be unfair if it is shown the police acted in bad faith it is almost inevitable that evidence so obtained will be excluded.

Evidence obtained in breach of Codes of Practice

Evidence obtained in breach of Codes of Practice may be excluded under section 76 or Section 78 of the Criminal Justice Act 1984. The general principles which still apply can be derived from earlier case law. In Gill & Anor, R. v [2003] EWCA Crim 2256 (31 July 2003) The court said:

“It does not follow from the conclusion that Code C applied and that no caution was administered or tape recording made in breach of paragraph 10.1 that evidence of everything said by the appellants at the meeting must be excluded. The principles are stated in this way in paragraph 15-15 of Archbold 2003, by reference to R v Absolam 88 Cr App Rep 332 and R v Delaney 88 Cr App Rep 338:
"They are as follows:
(a) a breach of a code does nor lead automatically to exclusion (Delaney);
(b) where there is a breach, the judge has a discretion to exclude the evidence (Absolam/Delaney);
(c) the breach must be significant and substantial, and the more so, the more likely the judge is to exclude the evidence (Absolam);
(d) bad faith/flagrant disregard of the codes' provisions will make exclusion more likely (Delaney);
(e) the test to be applied is the section 78 test (R v Grannell 90 Cr App Rep 149);
(f) in applying the test, the judge should have regard to the rationale of the provisions of the code … and the extent to which the breach is likely to defeat the rationale (Delaney);
(g) if there is a breach but the judge admits the evidence, he should give reasons for doing so: R v Allen [1995] Crim LR 643, (an identification case);
(h) if the evidence is allowed in despite the breach, the judge should explain the significance of the breach to the jury, as it may go to the weight they attach to the evidence (see R v Graham [1994] Crim LR 212 and R v Quinn …" [1995] 1 Cr App Rep 480."
R v Sanusi

R v Sanusi [1992] Crim L. R. 43 S was interviewed in the customs area at Gatwick Lord Taylor held: there was a duty on customs officers to inform the suspect of his rights to legal advice. There was a breach of Code C3.1 and C3.2 in not informing S of his rights and the interview should have been excluded. See also R v Okafor 99 Cr. App. R. 97 which was a drug smuggling case and questions were asked of the appellant when he arrived at Gatwick Airport. He was asked where he had come from, and why he had come to England. In answer to a question about his bag he said he had packed it himself. Asked whether everything in his baggage belonged to him, he replied "Yes". Without objection those questions went before the jury. A later conversation was the subject of objection, as set out in detail in the report. In respect of that later conversation the court did indeed rule that the Code of Practice applied and it had been broken in three respects. The court in Rouf, R v [1999] EWCA Crim 1356 (13th May, 1999) said: "But in our view, the grounds for suspicion calling for a caution arose after that appellant had answered those simple questions about the ownership of the bag and why he had come to the United Kingdom."

Case Law

Dhorajiwala, R v (09 June 2010)

Dhorajiwala, R v [2010] EWCA Crim 1237 (09 June 2010) The appellant was convicted on seven counts of theft. The facts giving rise to the case are, briefly, these: the appellant is a pharmacist. She was employed as a pharmacist and manager in a shop in Windsor between 1999 and November 2006. The Crown's case was that for a period of approximately two years prior to her dismissal the appellant stole money from the till register in the shop where she worked. The Crown relied upon two main pieces of evidence. First there was evidence of a series of customer sales transactions which were not put through the till when the appellant served customers. Secondly, there was an alleged confession of the appellant during an interview with civilian investigative agents. The single ground of appeal is that the judge was wrong to admit in evidence the interview conducted by two members of the investigation agency in the course of which the appellant made confessions. Held: there was a material failure in the procedure in this case. The effect of it was that the prosecution did not prove, beyond reasonable doubt, that the confession contained in the interview fell foul of section 76(2)(a) or (b). Accordingly the court should not have permitted the confession to be given in evidence. It was obviously powerful evidence that would have had a great effect on the jury. The procedural irregularity impugns the fairness of this trial. It means that the conviction must be regarded as unsafe.

Kenyon v R. (11 May 2010)

Kenyon v R. [2010] EWCA Crim 914 (11 May 2010) This appeal against conviction was a referred by the Criminal Cases Review Commission. The appellant lived with her grandmother. The grandmother died overnight on 4/5 December 1996 at the age of 89. At the time no foul play was suspected. Subsequently, however, over a period of several years, evidence emerged that the appellant told three different people that she had smothered her grandmother. She was tried in July 2003. The case against her depended upon her confessions. She denied making one of them. The other two she admitted making but contended that they were false. The issue at trial was therefore whether such confessions as she had made could safely be relied upon as proof that she had indeed done what she had said she had done. The jury convicted her. The appellant sought leave to adduce the evidence of two experts as to her psychological profile and in particular the likelihood of her making false confessions. One expert a non-medical psychologist of considerable experience whose particular area of interest is unreliable confessions. The other was a forensic psychiatrist. Held: The evidence would not be likely to afford grounds for quashing the conviction. Accordingly the court declined to admit it and dismissed the appeal.

Bradshaw, R. v (09 October 2009)

Bradshaw, R. v [2009] EWCA Crim 2113 (09 October 2009) This defendant was convicted of offences of historic sexual abuse against his daughter and, on a much more limited basis, against a friend of hers. His appeal challenged directly the judge's decision that evidence of what may have been a confession was admissible.

Y, R v (25 January 2008)

Y, R v [2008] EWCA Crim 10 (25 January 2008) A ruling relating to the admission of hearsay evidence, whilst properly labelled an evidentiary ruling, may also come within the type of rulings that could be appealed by the prosecution under section 58 Criminal Justice Act 2003. The ruling in this case related to a hearsay statement implicating the defendant, made by a co-defendant who had pleaded guilty to the charge.

EVIDENCE—CONFESSION Coll [2005] All ER (D) 82(Nov) This case provides an illustration of the possible use, against an accused, of a confession made in his presence by a co-accused. In the course of a recorded telephone call to the emergency services following a fatal stabbing the appellant’s co-accused said something that suggested that she and the appellant were jointly responsible for the offence. The appellant appears to have said nothing. On the facts of the case, it seems far from clear that it was safe to draw any inferences from the appellant’s failure to deny what the co-accused said, because it was not even clear that the appellant had either heard or understood what was said. This, however, was held to be a matter for the jury to decide, and the trial judge had directed them correctly. See Blackstone’s Criminal Practice: F17.34

Hasan, R v (17 March 2005)

Hasan, R v [2005] UKHL 22 (17 March 2005) A wholly exculpatory statement is not a confession.

(On Appeal from the Court of Appeal (Criminal Division))(formerly Regina v. Z (2003) (On Appeal from the Court of Appeal (Criminal Division)) This appeal by the Crown against the decision of the Criminal Division of the Court of Appeal (Rix LJ, Crane J and Judge Maddison: [2003] EWCA Crim 191, [2003] 1 WLR 1489, sub nom R v Z) raises two questions. The first concerns the meaning of "confession" for the purposes of section 76(1) of the Police and Criminal Evidence Act 1984. The second concerns the defence of duress.

Foster, R v (10 February 2003)

Foster, R v [2003] EWCA Crim 178 (10 February 2003) The first main ground of appeal is that the Judge wrongly admitted into evidence the confessions of the appellant. Appeal refused.

Director of Public Prosecutions, R v Stratford Youth Court (26 July 2001)

Director of Public Prosecutions, R (on the application of) v Stratford Youth Court [2001] EWHC 615 (Admin) (26 July 2001)

“11….It is clearly relevant, if the point is taken, as it needs to be under section 76 though not under section 78, that a young man of 17, who, although not a juvenile for Code C purposes, is a juvenile for other legal purposes, has been interviewed both at his own election without representation and without an appropriate adult (because Code C does not apply to him) at a distance of time of 24 hours from his arrest. in at least two of these cases we know that the youth in question had not been in a police station before. Nobody should underestimate, any more than they should overestimate, the kind of pressure to get things over and done with that such a youngster may experience. This is part of the picture. So is the note for guidance under Code C, note C11C, to which [Counsel for co-accused] has helpfully drawn our attention. I will not read it out, but it reminds everybody in the criminal justice process, not least those responsible for initiating and conducting interviews, that young people may be particularly prone in certain circumstances to provide information which is unreliable, misleading or self-incriminating.

Code C NfG11C Although juveniles or people who are mentally disordered or otherwise mentally vulnerable are often capable of providing reliable evidence, they may, without knowing or wishing to do so, be particularly prone in certain circumstances to provide information that may be unreliable, misleading or self-incriminating. Special care should always betaken when questioning such a person, and the appropriate adult should be involved if there is any doubt about a person’s age, mental state or capacity. Because of the risk of unreliable evidence it is also important to obtain corroboration of any facts admitted whenever possible.


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