The Law of Evidence Fact Sheets - Confessions

CONFESSIONS - 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.

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 The Law of Evidence Fact Sheets - Confessions

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;

(c) the rules regarding the cautioning of suspects;

(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).

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 The Law of Evidence Fact Sheets - Confessions

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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