CONFESSIONS

1. CONFESSIONS

2. WHAT IS A CONFESSION? (PACE s.82(1)) It is a statement which is wholly or partly adverse to its maker (it need not be made to a person in authority and need not be made in words) A statement which is wholly adverse to its maker (wholly inculpatory) is a confession A statement which is partly adverse to its maker but is partly in his favour (a mixed statement) is also a confession. A statement which is wholly in its maker’s favour (wholly exculpatory) at the time when he makes it is not a confession even if it subsequently becomes adverse

3. When questioned by the police, Julie admits that she killed Alice. Which one is true? [a] The statement is a confession [b] The statement is not a confession

4. ANSWERS [a] The statement is a confession [b] The statement is not a confession [a] is true.

5. When questioned by the police, James denies that he killed Imran but admits that he was present when Imran was shot. Which one is true? [a] The statement is a confession [b] The statement is not a confession

6. ANSWERS [a] The statement is a confession [b] The statement is not a confession [a] is true.

7. When questioned by the police concerning the theft of a diamond ring, Shirley denies any involvement in the theft and claims that she was at home in bed when the ring was stolen from Brian’s shop. Which one is true? [a] The statement is a confession [b] The statement is not a confession

8. ANSWERS [a] The statement is a confession [b] The statement is not a confession [b] is true.

9. ADMISSIBILITY A confession which is tendered as evidence of the matters stated is a hearsay statement but may be admissible under the hearsay exception created by PACE s.76(1)

10. PACE s.76(1) “In any [criminal] proceedings a confession made by an accused person may be given in evidence against him in so far as it is relevant to any matter in issue in the proceedings and is not excluded by the court in pursuance of this section”. [Note that the provisions of the CJA 2003 (which concern the admissibility of hearsay evidence in criminal proceedings do not make confessions made by the accused admissible if they would not be admissible under s.76 or s.76A of PACE (CJA 2003 s.128(2)).]

11. When questioned by the police, Julie admits that she killed Alice. The prosecution intend to rely on the statement at Julie’s trial for Alice’s murder to prove that she killed Alice. Which is/are true? (i) The statement is a confession (ii) The statement is a hearsay statement (iii) The statement may be admissible under PACE s.76(1)

12. ANSWERS (i) The statement is a confession (ii) The statement is a hearsay statement (iii) The statement may be admissible under PACE s.76(1) They are all true

13. CONFESSIONS IMPLICATING OTHERS Essentially, a confession is only admissible in evidence against its maker (section 76(1)) It may also be admissible against a person who adopted it (i.e. where A’s confession implicates B and B confesses that what A said is true) A confession made by an agent (e.g. a barrister) acting within the scope of his is authority may be admissible against his client Where this is relevant, a jury may take into account there finding as to the guilt of D1 when deciding whether D2 is also guilty even though the only evidence of D1’s guilt was his confession

14. i When questioned by the police, Wilf admits that he and Paul burgled Nayon’s house. When Paul is questioned by the police he denies that he burgled Nayon’s house and claims that Wilf’s assertion that he (Paul) was involved is untrue. They are both charged with burglary. Which is/are true? (i) Wilf’s statement is admissible under PACE s.76(1) to prove that Wilf burgled Nayon’s house (ii) Wilf’s statement is admissible under PACE s.76(1) to prove that Paul burgled Nayon’s house

15. ANSWERS (i) Wilf’s statement is admissible under PACE s.76(1) to prove that Wilf burgled Nayon’s house (ii) Wilf’s statement is admissible under PACE s.76(1) to prove that Paul burgled Nayon’s house (i) is true

16. i A and B are charged with arson. The prosecution assert that A paid B to burn down C’s factory. B confesses to the police that he set fire to the factory acting upon A’s instructions. At the trial, both A and B plead not guilty, and B’s confession is admitted in evidence. Which is/are true? (i) B’s confession is admissible against A under PACE s.76(1) (ii) If the jury decide that B is guilty they may take this finding into account when deciding whether A is guilty

17. ANSWERS (i) B’s confession is admissible against A under PACE s.76(1) (ii) If the jury decide that B is guilty they may take this finding into account when deciding whether A is guilty (ii) is true

18. CONFESSIONS MADE BY THIRD PARTIES A confession made by a person who is not a party to criminal proceedings (i.e. a confession which was not made by the accused) is not admissible under section 76(1). [Perhaps it may be admissible under some other hearsay exception as the CJA 2003 s.128(2) restriction, referred to above, only applies to a confession made by a defendant.]

19. i Hamish is charged with the murder of Alex. Ramesh had previously confessed to the police that he murdered Alex but the police did not believe Ramesh and he was not charged. Which is/are true? (i) Ramesh’s confession is admissible for Hamish under PACE s.76(1) (ii) Ramesh’s confession may possibly be admitted for Hamish under CJA 2003 114(1)(d)

20. ANSWERS • Ramesh’s confession is admissible for Hamish under PACE s.76(1) (ii) Ramesh’s confession may possibly be admitted for Hamish under CJA 2003 114(1)(d) (ii) is true

21. STATEMENTS OF OPINION AS CONFESSIONS A confession in the form of a statement of opinion upon a matter requiring expertise will only be of evidential value if its maker possesses the expertise to make his opinion in relation to the relevant matter of value

22. When questioned by the police, John admits that the substance that was found in his possession was cocaine. He claims that he found it in his friend’s flat and knew that it was cocaine because he used some of it and experienced its effects. This was the first occasion on which John had ever used or come into contact with drugs. The prosecution do not intend to adduce any other evidence to prove that the substance found in John’s possession was cocaine. True or false? The confession is clearly cogent evidence that the substance was cocaine

23. ANSWERS The confession is clearly cogent evidence that the substance was cocaine False

24. CONFESSIONS BASED ON HEARSAY STATEMENTS Essentially, a confession is not admissible as evidence of facts of which its maker only had hearsay knowledge Such evidence may be admissible to prove other matters (such as its maker’s beliefs or dishonesty) Presumably a confession may prove or be proved by a hearsay statement if the requirements of CJA 2003 s.121 and those of PACE s.76 (or those of s.76A, which are considered below) are satisfied.

25. Ian is suspected of handling a DVD player that he received from Mahendra. When questioned by the police, Ian admits that when he received the DVD player he believed that it was stolen because Mahendra told him that it was. The prosecution possess no other evidence to prove that the DVD player was stolen. True/false? Ian’s confession may possibly be admissible under PACE s.76(1) to prove that the DVD player was stolen if Mahendra’s statement is admitted under CJA s.114(1)(d) and the judge exercises his discretion under CJA 2003 s.121

26. ANSWERS Ian’s confession may possibly be admissible under PACE s.76(1) to prove that the DVD player was stolen if Mahendra’s statement is admitted under CJA s.114(1)(d) and the judge exercises his discretion under CJA 2003 s.121 True

27. EXCLUSION OF CONFESSIONS UNDER PACE s. 76(2) The admissibility of a confession under s.76(2) may be raised by the defence or (per s.76(3)) by the court of its own motion. Where the admissibility of a confession under section 76(2) of PACE is in issue, this will normally be determined on the voir dire (a trial within a trial). Essentially, where a confession is excluded under s.76(2) the jury will not hear about it (though see s.76A below). Where the judge admits a confession the jury may still decide that it is not true.

28. Where the accused denies that he confessed If the defence do not assert that a confession should be excluded under s.76(2) (or in the exercise of the court’s exclusionary discretion under s.78, which is considered below) but merely assert that the accused did not make the confession, the issue is one for the jury to determine

29. Colin is charged with murder. The prosecution adduce in evidence a confession allegedly made by Colin. Colin denies that he confessed and claims that the voice on the tape recording is not his. Which is/are true? (i) The matter is one for the judge to be consider on the voir dire and the jury must not be made aware of the confession if there is evidence that Colin did not make it (ii) If the judge admits the confession the jury must presume that Colin made it.

30. ANSWERS (i) The matter is one for the judge to be consider on the voir dire and the jury must not be made aware of the confession if there is evidence that Colin did not make it (ii) If the judge admits the confession the jury must presume that Colin made it. They are both false

31. SECTION 76(2)(a) (OPPRESSION) “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… 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 (notwithstanding that it may be true) was not obtained as aforesaid.”

32. NATURE OF OPPRESSION Oppression includes (PACE s.76(8)) “…torture, inhuman or degrading treatment and the use or threat of violence (whether or not amounting to torture)”, and it is also necessary to consider the ordinary dictionary definition of “oppression”, suggesting that oppression requires improper conduct (i.e. “wrongful”, “burdensome”, “harsh” or “cruel”), e.g. “heavy handed questioning” (R v Fulling)

33. When questioned by the police Anita consistently denied that she committed the robbery of which she was suspected whilst the interviewing officers persistently screamed abuse at her for several hours and refused to give her any refreshments or access to legal advice until she confessed. Eventually, Anita confessed that she committed the robbery, and was charged. Which is/are true? (i) The confession is not admissible because it is not relevant to an issue in the proceedings. (ii) The confession will not be admissible if Anita proves on the balance of probabilities that it was obtained by oppression

34. ANSWERS (i) The confession is not admissible because it is not relevant to an issue in the proceedings. (ii) The confession will not be admissible if Anita proves on the balance of probabilities that it was obtained by oppression They are both false.

35. OPPRESSION AND THE “CAUSAL LINK” The existence of oppression does not render a confession inadmissible if the confession was not obtained by oppression (which may depend upon the accused’s personal characteristics) i.e. even where, in the context of an assertion of oppression, the prosecution cannot prove beyond reasonable doubt that the accused was not subjected to oppression, his confession will still be admissible if the prosecution can prove beyond reasonable doubt that the confession was not obtained in consequence of the oppression

36. i Sid, a heavyweight boxer, is questioned by the police in the presence of his solicitor concerning the murder of Dan. After 30 minutes DI Jones, frustrated by Sid’s lack of cooperation, slaps Sid’s face once. Sid merely laughs and continues to deny his involvement in the murder. Several hours later, after the police have disclosed further evidence to Sid, Sid confesses on his solicitor’s advice. Which is/are true? Section 76(2)(a) of PACE does not appear to render the confession inadmissible because: (i) the slap does not amount to oppression; (ii) the confession does not appear to have been obtained because of the slap

37. ANSWERS Section 76(2)(a) of PACE does not appear to render the confession inadmissible because: (i) the slap does not amount to oppression; (ii) the confession does not appear to have been obtained because of the slap (ii) is true

38. OPPRESSION AND SUBSEQUENT INTERVIEWS Oppression during one interview may render a confession obtained during a subsequent interview inadmissible even though the subsequent interview was conducted properly;

39. i When questioned by the police Anita consistently denies that she committed the robbery of which she is suspected whilst the interviewing officers persistently scream abuse at her for several hours and refuse to give her any refreshments or access to legal advice until she confesses. Eventually, Anita confesses. Subsequently, two different police officers re-interview Anita in the presence of her solicitor. The interview is conducted properly and Anita confesses that she committed the robbery Which is/are true (i) The first confession must be admissible. (ii) The second confession must be admissible.

40. ANSWERS (i) The first confession must be admissible. (ii) The second confession must be admissible. They are both false

41. Section 76(2)(b) (UNRELIABILITY) “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—… “(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 (notwithstanding that it may be true) was not obtained as aforesaid.”

42. UNRELIABILITY No statutory definition of unreliability It appears that improper conduct is not required Unreliability must not be self-induced (i.e something must be said or done to the accused (but not necessarily by the police); i.e. the thing said or done cannot be his own mental or physical state or things said or done by him or on his behalf

43. UNRELIABILITY (CONT) The circumstances existing at the time (including the accused’s personal characteristics) are crucial The question for the judge is not whether the confession is true or false, the truth or falsehood of the confession being a question for the jury if the confession is admitted Rather, the issue for the court is the likelihood that such a confession as the accused made would be rendered unreliable in the circumstances in consequence of the thing said or done

44. Liz is being questioned by the police in relation to a shoplifting incident in which she is allegedly involved. Liz consistently denies the allegations against her until another police officer comes into the interview room and (truthfully) informs Liz that her house is on fire and her son is still inside. Liz’s solicitor tells Liz that if she confesses she will probably be allowed to go home. Liz immediately confesses. Which is/are true? (i) The confession was obtained by oppression (ii) The confession may be inadmissible under PACE s.76(2)(b) unless the prosecution prove that the confession was not obtained in consequence of the things said by the police and the solicitor

45. ANSWERS (i) The confession was obtained by oppression (ii) The confession may be inadmissible under PACE s.76(2)(b) unless the prosecution prove that the confession was not obtained in consequence of the things said by the police and the solicitor (ii) is true

46. Horace, being suspected of shoplifting, is questioned by the police. Horace, who is a member of a village cricket team, wants to play in a cup final which his team are participating in that evening. Horace assumes that he will be allowed to go home if he confesses and so he confesses. True/false? The confession will not be admissible because it is clearly unreliable

47. ANSWERS The confession will not be admissible because it is clearly unreliable The proposition is false

48. UNRELIABILITY AND THE “CAUSAL LINK” The fact that something was said or done etc does not render a confession inadmissible if the confession was not obtained in consequence of the thing which was said or done I.e. even if the prosecution cannot prove beyond reasonable doubt that nothing was said or done etc, the accused’s confession will still be admissible if the prosecution can prove beyond reasonable doubt that the confession was not obtained in consequence of the thing that was said or done etc

49. Alice, being suspected of murder, is questioned by the police and consistently denies the allegations against her until another police officer comes into the interview room and (truthfully) tells Alice that her mother is very ill. The officer tells Alice that if she confesses she will be allowed to go immediately. Alice continues to deny the allegations until, several hours later, the police disclose further evidence against her and her solicitor advises her to confess, at which point she confesses. True/false The confession must be inadmissible under PACE s.76(2)(b)

50. ANSWERS The confession must be inadmissible under PACE s.76(2)(b) False