A confession is defined in s 82 (1) PACE 1984 as ‘any statement wholly or partly adverse to the person who made it whether made to a person on authority or not and whether made in words or otherwise’.
This is a wide definition covering any statement made by the suspect or accused on which the prosecution seek to rely. The statement does not have to be made in front of the police. Michael Stone’s conviction for the double fatal hammer attack on Lin and Megan Russell in 1996 was based on a confession he was alleged to have made in the hearing of another prisoner. It is important that if your client is answering police questions at interview he must be careful not to incriminate himself. This is where the role of the legal adviser is important as suspects may feel pressurised into confessing a crime to the police that they have not committed. The very nature of detention inside a police station brings with it fear and desperation.
It is important that you request a copy of any police interview tape and written transcript. The police interview has huge evidential value in terms of the questions that were put to the defendant and the responses he gave or even he remained silent and later raises a defence. Sometimes the interview highlights that the defendant has made incriminating admissions or has told lies. There are cases where a full and frank admission to the police would be the best course of action but this advice can only be given after a careful review of the evidence and obtaining your client’s full instructions. Courts will look at whether there have been breaches of PACE and relevant Codes of Practice in deciding on the admissibility of confession evidence although a breach does not mean automatic exclusion of a confession.
Voir dire: The procedure for determining the admissibility of a confession is a voir dire, trial within a trial. This is a pre trial hearing conducted in the absence of the jury where the trial judge will listen to the evidence of how the confession was obtained and the arguments put forward by both the prosecution and defence lawyers. Prosecution witnesses could include the interviewing arresting and custody officers and for the defence the defendant himself may give evidence. The judge would then decide whether to admit the confession. If he decides to exclude it the jury will not be told anything about it. However if he decides to admit it, the defendant would be allowed to tell the jury his side of the story in the hope of limiting the evidential weight of the confession. In the magistrates court the pre-trial hearing will be held and if it is decided that the confession be excluded the magistrates will continue to hear the case and be expected to ‘put it at the back of their minds’.
S 76 (2) of PACE sates that the admissibility of a confession may be challenged on the following grounds: oppression, unreliability and unfairness.
Oppression: s 76 2(a) In the case of R v Fulling (1987) oppression was defined as ‘the exercise of authority or power in a burdensome harsh or wrongful manner’ .This includes unjust or cruel treatment of subjects inferiors etc and the imposition of unreasonable or unjust burdens. The courts recognise that oppression is a matter of degree and what may be perceived as oppressive by one person may not be for another therefore personal characteristics as well as mental strength and weaknesses will be taken into account. In the case of R v Paris Abdullah and Miller (1993) 97 Cr App R 99 the defendants appealed against their conviction for murder because M was interviewed for 13 hours over 5 days. He did not have legal representation for the first two interviews. Having denied his involvement during the earlier interviews he later admitted during the last two that he had stabbed the victim. The Court of Appeal allowed the appeal on the basis that this constituted a hostile, intimidating and degrading environment and therefore police conduct towards M was oppressive within the meaning of s 76 2 (b) as there was clear evidence of deliberate and serious misconduct on the part of the police.
Unreliability: s 76 2(b) If the circumstances at the time could lead to an unreliable confession it must be excluded regardless of whether it is true or false. He court will look at anything said or done to the accused in the circumstances existing at the time including those surrounding detention and interrogation. An example could be failure by the police to identify a particular vulnerability of the suspect due to an existing medical condition or substance misuse. Inducements made by the police to the suspects regarding bail or a lesser charge could also render a confession unreliable. In R v Delaney 1988 86 CR App R 18: Here a defendant was convicted of indecent assault and the only evidence against him was his confession. He was 17, had been interviewed without a solicitor and had a low IQ and educational difficulties. Evidence from an educational psychologist showed that the defendant was a vulnerable suspect. The nature of questioning and the vulnerability to the suspect meant that the risk of a false confession was too high. The issue was not whether the confession was true but whether it was obtained in reliable circumstances.
Unfairness: s 78 PACE 1974.This is where it is held that the admission of the confession will have an adverse effect on the fairness of the proceedings. This would include where the police failed to secure access to a solicitor, to properly record an interview, to provide safeguards in relation to a vulnerable suspect or other deliberate breaches of Code C. There is therefore a great overlap between reasons for excluding evidence according to s 76(2) b and s 78. In R v Aspinall 1999 Crim LR 741 a schizophrenic was arrested an convicted on drugs charges although the police surgeons concluded he was fit to be interviewed at trial a psychiatrist stated that stress and tiredness may well have affected his confession. The defendant was interviewed without the presence of a solicitor. The trial judge rejected the s 78 submission. However on appeal, the Court Appeal allowed his appeal stating that at the time of interview the defendant was unable to judge what was in his best interests.
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