Confession Evidence Notes

Introduction to Evidence and Confession Evidence

  • Confessions are powerful evidence, but miscarriages of justice have occurred due to false confessions.

Miscarriages of Justice

  • Several high-profile cases (e.g., Stefan Kiszko, Birmingham Six, Guildford Four) involved quashed convictions due to false confessions obtained through coercion or other issues.

Problems with Confession Evidence

  1. Fabricated confessions: Police fabricating confessions (e.g., Paul Blackburn).
  2. False confessions: Reasons include:
    • Voluntary (desire for publicity, guilt).
    • Protecting someone else.
    • Coerced-compliant (ending questioning).
    • Coerced-internalized (persuaded they committed the act).
  3. Unacceptable methods/circumstances: Intimidation, vulnerable suspects, manipulative interviewing, suspect's mental state.

Law Reform: PACE

  • The Police and Criminal Evidence Act 1984 (PACE) aims to balance police powers with public rights.
  • PACE imposes procedural and evidential requirements to reduce miscarriages of justice.

Protections for Suspects

  • Right to Legal Advice (Section 58 PACE):
    • Right to consult a solicitor privately.
    • Delay possible only with reasonable grounds (e.g., interference with evidence).
  • PACE Code C: Guidance on detention, treatment, and questioning.
    • No dissuading detainees from seeking legal advice.
    • Delaying legal advice access only under specific circumstances.
  • Cautions: Informing the person of their arrest and rights, including the caution wording: "You do not have to say anything…"
  • Interviews: Generally at police station; exceptions for preventing immediate harm/interference.
  • Rest: Detainees must have at least 8 hours of uninterrupted rest in 24 hours.
  • Fitness to be Interviewed: Assessment of physical and mental state required.
  • Appropriate Adult: Required for juveniles (under 18) or vulnerable persons.
  • Audio Recording: Interviews audio-recorded since 1992, with exceptions for equipment failure.
  • PEACE Model: Investigative interviewing focused on reliable information rather than coercion.

Confessions as Hearsay

  • Confessions are an exception to the hearsay rule.
  • s.82(1)s.82(1) PACE: Confession includes any adverse statement made by a person.
  • s.76(1)s.76(1) PACE: Confession may be given as evidence if relevant and not excluded by the court.
  • Admissibility determined in a voir dire (mini-hearing).
  • Confession definition: includes partial admissions, informal admissions, gestures, or re-enactments

Mandatory Exclusion: s.76(2)(a) and (b) PACE

  • Confession obtained by oppression or anything said/done likely to render it unreliable is inadmissible unless the prosecution proves beyond reasonable doubt it was not obtained that way.
  • Burden on prosecution to prove admissibility beyond reasonable doubt.

s.76(2)(a): Oppression

  • Defined in s.76(8) PACE: torture, inhuman or degrading treatment, violence.
  • Includes unjust or cruel treatment and improper pressure by police.

s.76(2)(b): Potential Unreliability

  • Court considers whether something said or done was likely to cause an unreliable confession.
  • The actual truth of the confession is irrelevant; focus is on potential unreliability.
  • Anything said or done is interpreted narrowly, referring to external factors from the police.
  • Examples include misleading information, failure to record accurately, failure to provide an appropriate adult, failure to allow sufficient rest.
  • Defendant's mental and physical condition is relevant.

'Tainting' of Subsequent Confessions

  • A later confession may be tainted by earlier impropriety if the first interview had a 'continuing influence.'

S.76(4): Use of Evidence Obtained in Confession Contravention Section 76(2)

  • Facts discovered as a result of an inadmissible confession are admissible, but the confession itself cannot be referenced to explain the discovery unless raised by the defense.

Discretionary Exclusion - S.78 PACE

  • A confession admissible under s.76(2) may still be excluded under s.78 if its admission would adversely affect the fairness of proceedings.
  • Only 'significant and substantial' breaches are likely to lead to exclusion.
  • Exclusion more likely if police acted in bad faith.
  • Examples: absence of caution, breach of recording requirements, absence of appropriate adult, denial of legal advice.
  • Not all lies and subterfuge trigger exclusion.

Vulnerable Suspects

  • Miscarriages of justice have involved vulnerable suspects (e.g., Stefan Kiszko, Stephen Downing).
  • Code C requires an appropriate adult for juveniles or vulnerable persons.
  • s.77(1) Jury warning:
    • If the case depends substantially on confession by someone the court's satisfied is mentally handicapped.
    • Confession wasn't made in the presence of an independent person [someone other than a police officer or person engaged on police purposes].
    • The court shall warn the jury that there is special need for caution before convicting the accused in reliance on the confession.
  • Withdrawal of case from jury may be necessary if the confession is unconvincing.

Criticism / Recommendations for Reform

  • Royal Commission on Criminal Justice recommended a judicial warning in cases with confession evidence, but didn't recommend changes to the law.
  • Some argue for corroboration of confessions.
  • Debate over whether grounds for mandatory exclusion should be extended (e.g., absence of legal advice, unrecorded confessions).