Free 2.1 Law Essay

Do you consider the current protection afforded to suspects in police custody in respect of confessions in England and Wales adequate?

This assignment will consider the current protection that is afforded to suspects who are held in policy custody in relation to confessions. It will argue that they whilst there are some inadequacies in the current system, for the most part the Police and Criminal Evidence Act protect the suspect at the police station adequately and in any event that the law contained within the act is a great improvement on the common law system.

The term "confession", is defined in Police and Evidence Criminal Act 1984 , s.82(1), as " '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."

The admissibility of confessions in criminal proceedings is more tightly regulated than that of almost any other species of evidence. If the accused, or the court, questions the admissibility of confessional evidence, s.76 of PACE requires the Crown to establish beyond reasonable doubt that the accused's statement was neither obtained by oppression nor by anything said or done likely in the circumstances existing at the time to render a confession unreliable. It is therefore particularly important to identify what statements made by an accused actually qualify as confessions, deserving of these restrictive measures, within the terms of the Act . Section 76(1) of PACE outlines that a confession made by an accused person may be given in evidence so far as it does not contravene 76(2) which states that:

"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 (not withstanding that it may be true) was not obtained as aforesaid.

It is argued that it is a measure of how seriously Parliament takes the responsibility of monitoring the quality of confession evidence that the onus is places squarely on the prosecution to disprove beyond reasonable doubt any objection to the admissibility of a confession under this act . This is a good indication of how well the current law protects the individual suspect at the police station.

By S76(8), oppression includes, among other things, "inhuman or degrading treatment". In Fulling , Lord Lane CJ relied on a dictionary definition that included "exercise of authority or power in a burdensome, harsh or wrongful manner... the imposition of unreasonable or unjust burdens". He also emphasised the seriousness of the conduct needed to constitute oppression.

Conduct that falls short of oppression might nonetheless lead to exclusion under Section 78 of PACE or at common law on grounds of unfairness, illegality or forced self-incrimination. S78 of PACE seeks to protect any suspect who makes a confession whilst in police custody by providing that:

"In any 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."

There are strict provisions governing the activities of police at police stations. There are strict provisions with regard to caution and the right to legal advice . Numerous rules govern the obligations of police to keep a written record of everything said, whether solicited or unsolicited . The need for the suspect to be given a contemporaneous opportunity to verify the accuracy of his alleged comments is a further significant feature. In dealing with interviews in police stations, there is an abundance of rules which concern when interviews can take place, periods of rest and the like. Moreover, there are special provisions relating to mentally handicapped persons and, in particular, the express requirement for a caution warning where the case against the accused depends wholly or substantially upon the confession made in the absence of an independent person .

Most importantly, and of particular relevance here, there is an individual Code of Practice on tape recording of interviews with suspects, readily available for consultation by police officers, detained persons, and members of the public at every police station. There are procedures referable to the recording and the sealing of master tapes. Interviews must always be tape recorded, other than in the most remote and exceptional of cases. Everything must be explained to the suspect and his legal representative. Even the changing of tapes, the taking of breaks, problems with recording equipment, and other difficulties, must, in themselves, be tape-recorded . Combined with the rules themselves are notes for guidance, which cater for every eventuality, and which, ultimately; permit a trial court to relive the suspect's experiences in full. Overall, throughout their dealings with the suspect, the police are required to bear in mind that it will be necessary to demonstrate to a court that all relevant rules were complied with, and that nothing occurred which might taint the reliability, truthfulness or admissibility of an alleged confession.

This appears, on the face of it, to provide adequate protection for the suspect who confesses whilst in police custody, however the reality is somewhat different. The judiciary have interpreted the use of such evidence in the trial of the accused in a much more narrow and restrictive way. Although some of the cases provide instances of strongly worded judicial condemnations of improper police practices . In Mason the Court of Appeal, in holding that the confession evidence ought to have been excluded under section 78(1), observed: "It is obvious from the undisputed evidence that the police practised a deceit not only upon the appellant, which is bad enough, but also upon the solicitor whose duty it was to advise him. In effect, they hoodwinked both solicitor and client. That was a most reprehensible thing to do ." In Samuel the Court stated: "In this case the appellant was denied improperly one of the most important and fundamental rights of a citizen ." In Dunn the Court "stress[ed] yet again the importance of the police complying strictly with the Codes of Practice. There were serious breaches in this case." Again, the breaches in Canale were described by the Court as "flagrant", "deliberate" and "cynical "; the police conduct "demonstrate[d] a lamentable attitude towards the 1984 Act and the codes made thereunder.... If, which we find it hard to believe, police officers still do not appreciate the importance of [PACE] and the accompanying Codes, then it is time that they did ."

On the basis of these observations, it would seem that the protection afforded to those suspects making confessions in custody was adequate, however subsequent case law has proved that this is not always the case.

In Bailey & Smith , police secretly tape-recorded the suspect's discussions with each other in a police cell. The prisoners were tricked into thinking that police did not wish them to be placed in the same cell, the custody officer having forced them in. The Court of Appeal upheld the trial judge's ruling that there had been no breach of Code C.8.1 (more than one person not to be detained in a cell), and that the suspect's right to silence was not undermined. However, the Court emphasised that such methods should only be employed "in grave cases", and that nothing should be done to render unreliable any confession. The Court was not prepared to say that tape-recorded cell confession evidence should, in itself, be regarded as undesirable, or inadmissible. If was for Parliament to extend the relevant Codes, if thought appropriate.

In Roberts , S declined to answer questions when asked about a number of armed robberies. Both he and X were charged with a particular robbery. X asked to be put in a cell with S so as to secure a confession, and in order to exculpate himself.
The necessary authority was obtained for a bug. Thereafter, S admitted a number of offences in discussion with X. The Court of Appeal upheld the trial judge's decision to admit the evidence. It was held that X was not a police agent, that it could not have been anticipated that S would confess, that the necessary authority had been obtained and that there had been no police misconduct. Although S had been charged by the time he confessed, the Court's view was that there had been no oppression, and importantly, no police questioning had taken place. Overall, each case had to be decided on its own facts, and the Judge had not erred in the exercise of his discretion.

As has been demonstrated and as Roberts and Zuckerman point out, the design of PACE was to protect suspects in custody from improper police behaviour and above all, to erect procedural devices that will enable the courts to supervise police condut towards suspects. Although the courts are still dependent on police sources for the facts regarding the treatment of prisoners, the records of such treatment are much improved. Nowhere is this more evidence than in the routine tape-recording of confessions. Certain aspects of procedural protection, such as the provision and quality of custodial legal advice, clearly exhibit room for improvement. But the posting of the suspect in the police station has undeniably improved under PACE and is much greater than the notional privilege against self incrimination or the right to silence that is found in the common law.

Roberts and Zuckerman point out that "English law seems to have made admirable progress towards reducing the tension between the suspect's legal privilege against self-incrimination and the social need to interrogate persons against whom there is a well-founded suspicion of criminality. This appears, certainly to be a true and accurate statement of the current law in relation to suspects confessions whilst in police custody.




Police and Criminal Evidence Act 1984

Bailey & Smith (1993) 97 Cr.App.R 365
Canale [1990] 2 All E.R. 187
Fulling [1987] QB 426
Roberts 1997] 1 Cr.App.R 217
Samuel [1988] Q.B. 615

Journal Articles

Choo A & Nash S, (1999) "What is the Matter with Section 78?" Criminal Law Review December 929-940
Grevling, (1997) "Fairness and the Exclusion of Evidence under Section 78(1) of the Police and Criminal Evidence Act" 113 Law Quarterly Review 667
Munday R, (2003) "Adverse Denial and Purposive Confession", Criminal Law Review December 850- 864


Keir S, (2001) "Criminal Justice, Police Powers and Human Rights", London, Blackstone Press

Osin P, (2001) "PACE Explained" , London, HMSO

Roberts P & Zuckerman A, (2004) " Criminal Evidence", Oxford University Press