4. Confessions - A summarised version of Andrew Choo\'s textbook. - Evidence PDF

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A summarised version of Andrew Choo's textbook....

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Confessions 1. An out of court statement, in a criminal trial, made by a D that is adverse to his interests and which is adduced as an exception to the hearsay rule to indicate guilt. 2. Prose. seeks to advance its case by saying, ‘he said he did it therefore he must be guilty of it.’ 3. Statutory exception to hearsay rule – s.76(1) Police and Criminal Evidence Act 1984 (PACE 1984) which provides tht in any proceedings, a conf may be ‘given in evidence against’ an accused person, unless excluded by tht section. 4. But also expressly preserved by s.118(5) Criminal Justice Act 2003 (CJA 2003) as a CL exception to hearsay rule. 5. Maker of conf usually wont want it to be admitted as evi cuz will damage his defence so will challenge its truth, the circum to which it was obtained or or whether it was made at all. (informal admission) 6. Formal admissions – difficult for D to go back cuz taken as conclusive of issue unless made by mistake or misunderstanding. 7. Rationale for admitting conf evi – such statements unlike other forms of hearsay, were inherently reliable, it was so unlikely tht any suspect : “..would confess to any crime he had not committed that it was safe to rely upon the truth of what he said. (R v Sharp) 8. If conf unsupported by any evi then can found convic of its own but rare in practice. Conf Evi implicating Co-D 1. A conf tht implicates co-accused is not evi againt co-accused cuz rationale for statement to be true x apply, cuz many suspects would hv motive to lie. 2. However, not normally cons appropriate to edit out parts of conf tht implicate others cuz may give misleading impression on trib of fact which would not know how much personal involvement the confessor was admitting to. 3. Some cases, identity of implicated co-D can be concealed behind letter or no. as seen in (R v Silcott) reducing the degree of prejudice. 4. Tho cts x normally allow name of implicated co-Ds to be removed from conf, must direct jury tht statement is only evi against the maker. R v Gunewardene 5. Where maker of statement has not given evi to support it at trial, trial judge warns jury tht ‘the statement which B (or any other person) made (to the police) in A’s absence implicating A is not and can not be evi against A…you must therefore disregard it when you cons the case against A.’ 6. R v Randall – view tht just outcome more likely achieved by joint trials for co-Ds. 7. App to sever indictment on tht ground tht otherwise jury would be exposed to hearing one of the Ds being implicated in a co-D conf will usually be met by a refusal and an assurance tht judge will give appropriate directions on the limited uses tht jury can make of the statement. 8. However, cuz a conf tht implicates a co-D is not evi against tht co-D, if it is the only ‘evi’ against him at trial, he will be able to make a successful submission of ‘no case to ans’ at the end of prose evi. 9. R v Gunewardene – If no separate trial is ordered, it is the duty of the judge to impress on the jury tht the statement of one prisoner not made on oath in the course of 1

trial is not evi against the other and must be entirely disregarded. If we were to lay down tht statement of one prisoner could never be read in full cuz might implicate or did implicate the other, difficult situations may arise. Common for prisoner in making statement, tho admitting his guilt to a certain extent, puts greater blame upon coprisoner, or asserts tht his actions were really innocent and it was the conduct of the co-prisoner tht gave them a sinister appearance or led to the belief tht the prisoner making the statement was implicated in the crime. In such cases, prisoner has right to have whole statement read and could with good reason, complain if prose picked out certain passages and left out others. 10. R v Hayter 3D charged with murder. D1 wanted to arrange ctt killing of H. Strong evi against her. D3 hitman (alleged) who shot and killed D1 H. Evi against D3 based purely against conf tht he allegedly made to his gf. D2 is intermediary who engaged the killer. Evi against D2 entirely circumstantial. If prose fails to prove D3 = killer and D1 = procurer then case against D2 (appellant) as go-between would inevitably fail too. Trial judge allowed case to go to jury and directed jury tht only if they found actual gunman and woman who arranged killing guilty of murder would it be open to them if they wished to convict the middleman. Jury convicted all 3. 11. Principle argument on behalf of alleged middleman was tht the rule tht an out of court conf, by one D had effectively, and indirectly, been breached by the manner in which the judge directed the jury. 12. Argued : Since jury could only convict D2 on basis of D3’s conf, using any subsequent convic against D2 would also indirectly convict D2 on basis of co-Ds conf. + since jury had to determine D3’s guilt b4 deciding D2’s, case against D2 should be thrown out on a submission of no case to answer. 13. H/L : rejected appeal. In a joint trial, a conf of one D as admissible against co-D only in so far as confessor’s guilt helped to est the co-D’s guilt. Provided jury sufficiently sure abt truth of conf to convict confessor on tht basis alone, the ensuing convict could be used against co-D. Jury must be directed tht when deciding a case against a co-D, they must disregard everything said out of ct by confessor tht might otherwise be thought to incriminate the co-D. So, if A says ‘I killed B at the behest of C’ in circum where C cannot be guilty w/o A also being guilty, if jury sure tht A is guilty as a result of his conf., they can use his guilt as evi against C, provided tht they are

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warned tht it is A’s conviction tht is evi against C and not anything said in his conf implicating C. 14. Where maker of statement has given evi at trial and repeated the allegation tht he earlier made against his co-D in his conf. in ‘in ct’ testimony, his testimony is evi for all purposes. 15. Trial judge should point out to jury tht tho admitted conf x be evi against the implicated man, allegation has been repeated in ct, in co-accused’s presence and is therefore, evi in the case generally which jury is entitled to cons. Jury should also be warned to examine with particular care, cuz the witness may have been more concerned abt protecting himself than about speaking the truth. 16. If co-D with a criminal record makes such an ‘attack’ on his fellow accused he risks having his own bad character adduced under s.101(1)(g) CJA 2003. 17. R v Warwickshall – Nared J – A free and voluntary conf is deserving of the highest credit, cuz it is presumed to flow from the strongest sense of guilt…but a conf forced from the mind by the flattery of hope or by torture of fear, comes in so questionable a shape…tht no credit ought to be given to it and therefore is rejected. This principle respecting conf has no app whatsoever as to the admission or rejection of facts, whether the knowledge of them obtained in consequence of an extorted conf, or whether it arise frm any other source. 18. CL rules of exclusion replaced by s.76 PACE 1984 – all conf governed by statutory provi. 19. R v Mushtaq (2005) – Lord Hutton – 2 principle reasons why conf obtained by oppression should not be admitted in evi. 1.where conf made as a result of oppression, may be unreliable cuz conf may hv been given nt with intention of telling truth but frm desire to escape the oppression imposed on or the harm threatened to the suspect. 2. In civilized society a person should nt be compelled to incriminate himself , and a person in custody should not be subjected by the police to ill-treatment or improper pressure in order to extract a conf. *Should factors other than reliability be cons when determining admissibility of conf.*

Gisli H Gudjonsson, ‘Unreliable Confessions and Miscarriages of Justice in Britain’ (2002) International Journal of Police Science & management, vol 4 It is wrong to assume that only persons with learning disability or those who are mentally ill make unreliable or false conf. The cases demonstrate the importance of personality factors in potentially rendering a conf unreliable, which is supported by recent empirical research into the nature of false conf… The general thrust of the legal of the legal criteria developed over the past 10 yrs has broadened the admissibility of expert testimony to include abnormally marked personality traits (extreme suggestibility, compliance, anxiety proneness, poor self-esteem, impulsivity). Of course, these must be of the type to render a conf potentially unreliable (ie their relevance to the disputed conf must be demonstrated). Admissibility of expert testimony is no longer restricted to conditions of mental or psychiatric disorder, such as mental illness learning disability or personality disorder. 3

Shows the increased judicial awareness emerged in recent yrs frm exposure to such research R v Blackburn (2005) – Keene LJ – Essence of Dr. Shepherd’s evi was tht the key feature giving rise to a coerced compliant conf was fatigue, which, together with an inability to control wht is happening, may induce the ind to experience a growing desire to give up resisting suggestions put to him. Eventually he can take no more and is overwhelmed by the need to achieve his immediate goal of bringing the interrogation to an end. That may not seem rational to an outsider but it becomes rational if the ind finds the circum becoming intolerable. The age of such a person, saod Dr Shepherd, is significant. Generally, the younger he is, the less able he is to withstand sustained pressure. 20. Historic ground of excluding conf dating back to the 18 th cent. were replaced by the grounds set out in PACE 1984 in particular s.76 + s.78. Act is a codifying statute not consolidating or one stipulated to be declaratory of CL. PACE / PCEA 1984 1. S.82(1) : conf ‘include…any statement wholly or partly adverse to the person who made it, whether made to a person in authority or not and made in words or otherwise.’ 2. Only conf as defined under this provi can be excluded under s.76 of the statute. 3. S.76 specifically for confessions. 4. S.78(1) – possible to exclude D’s statement which is tendered by Crown under general exclusionary statement. Its not a conf. 5. Apparent ambiguous statement, made by D, jury must be directed tht they must be sure it was a conf b4 acting on it: R v Bradshaw Authority and others 6. In Bradshaw, man was accused of historic sexual offences against small children. He told one of their moms tht he had ‘done smth really terrible’ and tht he was sry if he had hurt the girls. C/A rejected defence arguments tht statement was too vague and uncertain for any jury to be sure tht it was a conf to indecency and so should hv been withdrawn frm their cons. Jury must be entitled to be sure tht D must hv been speaking abt indecency with the daughter at least. 7. As can see in Bradshaw, conf x hv to be made against person in autho only . Can make to spouse, colleagues, neighbours etc tho conf made to them can be excluded under same grounds as police under s.76(2) and s.78, recipients are not subject to extensive codes of practice and rules tht regulate those who are professionally engaged in investigating crimes. 8. R v Elleray (2003) – Youth confessed to rape while speaking to probation officers preparing pre-sentence reports for an offence of indecent assault to which he had earlier pleaded guilty. C/A upheld trial judge’s decision to admit the the conf at a subsequent trial for rape, in which admission were the only evidence against D, tho they were nt made under caution or with legal rep present/offered and w/o being contemporaneously recorded. These deficiencies would normally have been fatal to admissibility had police officers received conf in such circum. 4

*as indirect agents of state, should probation officers hv to meet same safeguards as policeman when adducing confessions made to them in a pro capacity.*

‘In Words or Otherwise’ 1. Confession could in right circum be made by gesture, like nod, tho est this to an appropriate standard may prove difficult for police (if no one else), unless video tape taken. 2. Li Shu-Ling v R – suspect’s filmed re-enactment of murder = conf. If a video recording had been made of D’s oral conf, the video film would be admissible in evi. If in the course of video recording of the oral conf, accused has been asked to demonstrate how he placed his hand round the deceased’s neck either using dummy or police officer, this too admissible. If accused can say what he did, there is no reason why he should not show what he did, many illiterate people may find it easier to demonstrate an action rather than words. If it is permissible to allow D to re-enact a part of the crime during interrogation, no reason in principle why, if he is prepared to do so, he should not show how he committed the crime at the scene of the crime. ‘Wholly or partly adverse’ 1. Wholly or partly adverse to maker. 2. Wholly – “Okay, I did it. It was premeditated. There’s no excuse for wht I did.” Obviously damning inculpatory. 3. Partly adverse – statement while incriminatory with regards to some facts in issue, raises partial or total defence. “he lunged at me with a razor and I was terrified, I killed him.” Tho admitting AR of murder, raises self-defence.

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4. R v De Silva – D accused of importing cocaine. After being arrested with drug in his possession, he agreed to make telephone calls under police supervision, to various contacts in Eng. The call while containing incriminating material, constituted a conf . Calls did contain material which jury might take to incriminate the appellant in what he himself said and what was said to him. They suggested : tht he had an arrangement to meet some1 to handover suitcase containing drugs, reasonably close rltshp with ppl in Caribbean who clearly had an i in the case. They indicated tht appellant and ms james had been in company of such ppl b4 left to eng. Call revealed via mouth tht had been 3rd suitcase which appellant said he left behind in Caribbean. Crown sought admission of calls as part of its case against appellant. In due course, in deciding to admit the calls, the learned judge said : May well be tht jury can infer, would be matter entirely for them, tht certain passages here do show tht D was a party to a plan to bring in those suitcases. For jury to draw reasonable inferences frm contents of telephone call if they think appropriate. Ct quite satisfied tht calls did contain evi contrary to i of D. Follows tht for purposes of s.76 this was evi which was within the extended def of the expression of conf., which was given by s.82(1); tht is to say statement wholly/partly adverse to person person making it. Exculpatory on its face, but Incriminatory at trial. 1. Statement on face = wholly excul, neutral when made, turns out damaging/adverse to D at trial. 2. Ex : interview- D tells popo he was on holiday miles away at time of killing, nth to do with him, and had harmonious rlthsp with deceased. But subsequently, analysis of security video reveals the accused man leaving the crime scene at time of killing and prompts him to change his defence from alibi to provo or self defence. Initial statement (wholly exculp) tho not def as conf normally used as part of prose case, to show D’s reaction when taxed with incriminating facts. Alt, may be put out to D as a previous inconsistent statement under s4 Crim Procedure Act 1865 were he to testify and give evi tht was inconsistent with his earlier statement. Still, if D were to advance self defence or provo at trial, likely tht his defence would be badly undermined by such an apparently evasive statement. However, were it to be def as a conf under s82(1) may be excluded under s76(2)(a) if, for ex, there had been oppressive questioning by the popo. This would only be possible if ‘adverse’ extended to being adverse at trial, rather than meaning to be adverse on its face when made. S82(1) does nt make clear the time at which adverse is to be cons clear. 3. R v Hasan: D accused of aggravated burglary, had an ‘off the record’ interview with popo abt murder tht had allegedly been committed by a 3rd party. On the face, his comments was entirely exculp or neutral. But his eventual defence to burglary charge at trial was tht he acted under duress frm this 3rd party smth tht was undermined by wht he had said or not said abt this person in the course of the earlier interview. C/A put quest to H/L : whether conf included a statement intended to be excul or neutral and appears to be so on the face of it but becomes damaging to him at trial cuz for ex its contents can then be shown to be evasive or false or inconsistent with the maker’s evi on oath. 4. Strong obli under s3(1) HRA to interpret leg compatibly with convention rights. Nothing in the text of Art 6 or in corpus of European jurisprudence which supports the 6

view tht s76(1) and 82(1) create any incompatibility with Art 6. Given the unrestricted capability of s78 to avoid injustice by excluding any evi obtained by unfairness including wholly excul or neutral statements obtained by oppression, s76(1) and 82(1) are in Lord Steyn’s view, compatible with Art 6. 5. Wholly exculp – not evi, so cannot satisfy an evidential burden when placed on D, unlike partly adverse statement (exculp + adverse material). 6. Self-defence cases, in popo interview where suspect said “I stabbed him cuz he was threatening me with an axe” might be more advantageous to accused at trial than declaring “I had nth to do with his stabbing at all”. Former would satisfy an evi burden for self-defence. Latter would not. Cuz it’s material is not properly evi in the case, a purely exculp statement to the popo tht is adduced to show reaction does not req a Vye credibility limb direction unlike a mixed statement where D does not give evi but relies on the exculp facts. (Aziz 1998) 7. Defences tht go beyond a mere denial of prose case like self0defence and provo place an evi burden on D to adduce some evi on the issue b4 it has to be cons by tribunal of fact.

8. R v Newsome – D accused of rape. First 2 interviews, initially evasive. Eventually admitted intercourse. 3rd interview with popo, with his solicitor present, refused to ans further ques on legal advice. Later tht same day, made a detailed written statement to

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popo, with so Clearly a sel relevant abt

ment not adduced. m tht revealed nth

SILENCE AS CON cit acceptance of 1. Exceptional their veracity 2. At CL, if alle ng to em on even terms, in circum where they might be expected to deny the allegation or ‘repel the charge’, failure to do so, amounts to an acceptance of claim. R v Mitchell. 3. Parkes v The Queen – D’s failure to reply to 2 alleg tht he’d stabbed a woman’s daughter (mom found him near the bleeding and dying girl with knife in his hands) was capable of amounting to an admission. The prerequisite tht the parties must be on equal terms, usually taken as precluding popo interviews frm the ambit of principle esp since advent of PACE 1984. Voir Dire (trial within a trial) 1. Conf challenged by defence, prose obliged to prove beyond reasonable doubt tht it was nt obtained in breach of s.76(2). 2. S76(3) – imp provi for protecting the rights of unrep or incompetently rep Ds.

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3. To prove tht tendered conf was x obtained by oppression or anything said/done to make it unreliable, prose calls witnesses who can testify to the circum in which it was made. Officers who conducted interview, custody sergeant with his cust record, or others who saw suspect during relevant period like police surgeon. Examined in chief

by prose and cross examined by defence counsel. Defence then calls own evi if they wish, other witnesses who can give relevant evi on the issue, submissions then made to judge by both sides as to admissibility of conf. Judge then makes decision on the issue is satisfied beyond reasonable doubt tht no breach of s76(2), conf admitted. If not, excluded.

Is it in i of justice for some1 to be able to admit an offence with which they are currently charged in ct, w/o being convicted on such

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