Essay \"Confession\" - grade 66 PDF

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LAW OF EVIDENCE 14028310 According to Section 82(1) of the police and criminal evidence Act 1984 (PACE), “confession can be defined as any statement wholly or partly adverse to the person who made it, whether made to the person in authority or not and whether made in words or otherwise”. “The rule of admissibility of confession is designed to deal with the usual case in which a confession is tendered against the accused by the prosecution”. “But in some cases, a co- accused may wish to make use of a confession made by the accused, either because it supports the co-accused case in some way, or because he wishes to cross-examine the accused on the statement to show some inconsistency between the confession and the accused’s evidence at trial”. The debate is on the question whether a defendant is permitted to make use of the confession of a co-accused for the justification of establishing the facts acknowledge in the case where those facts were relevant to his defence. “The argument was clarified in the case of R v Myer where the defendant was allowed by the trial judge to cross-examine the confession of the co-accused and adduce them in evidence as they were relevant to his case. On appeal by the co-defendant against the conviction, the House of Lords held that the defendant was entitled to make use of the confession as it was relevant to his defence”. “Lord Slynn stated in the case of R v Myer that a defendant must be allowed to crossexamine a co-defendant in relation to his previous confession and noted that a confession may be relevant both as to credibility and as to the facts in issue and it does not cease to be admissible because it is so. Indeed as long as it is relevant to establish his defence or to undermine the prosecution case against him, a defendant should in my view be allowed to cross examine a co-defendant as to his confession which goes to the fact in issue rather than to the credibility of the maker of the statement. He should non the less be allowed to cross examine the person to whom a statement is made as to the terms of the confession even though, since the co-defendant has not given evidence, the question of credibility has not arisen”. “It is also expressed in the decision of the case that a co-defendant is not only entitled to cross-examine a defendant as to previous confession made but he can also

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LAW OF EVIDENCE 14028310 cross-examine a police officer to whom a confession was made, this is made possible in a situation where the maker of the confession does not give evidence and the judge presiding the case has no discretion to impede the confession”. Furthermore, in the “Police and Criminal Evidence Act 1984 section 76A states that a confession may be given in evidence for a co-accused and in any proceedings a confession made by an accused person may be given in evidence for another person charged in the same proceedings (a co-accused) 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. A confession can be admissible in a situation whereby it was not obtained through oppression or involuntary situation from the maker of the confession. If there is an exception where the court is in doubt about the way a confession was obtained the balance of probabilities would be used to convince the court otherwise. This is explained by Lord Hailsham in the case of Wong Kam-Ming v the Queen where he stated that “any civilised system of criminal jurisprudence must accord to the judiciary some means of excluding confession or admissions obtained by improper methods, It is not only because of the potential unreliability of such statement, but also, and perhaps mainly, because in a civilised society it is vital that persons in custody or charged with offences should not be subjected to ill treatment or improper pressure in order to extract confession”. The judge has the discretion to prohibit a confession if it was involuntarily obtained under s. 78(1) of the (PACE) and if the admission of the confession would have an unfavourable outcome on the legitimacy of the proceeding or lawsuit or on the common law. This is illustrated in the case of Ibrahim v the King the defendant an Afghan subject with the British Army in Hong Kong appeal on the basis that his admission of confession was not voluntarily given as he was questioned by an officer with authority over him. Furthermore, the out of court confession by a defendant cannot be used to implicate the codefendant as the universal rule states that a confession is only applicable and admissible

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LAW OF EVIDENCE 14028310 against its maker. Therefore a confession given by a defendant which inculpate or incriminates both the defendant and the co-accused cannot be used as evidence against the co-accused but can only be used against the defendant. This is illustrated in the case of R v Gunewardene . However, if it is used as an evidence in a joint trial the jury may be told that the evidence cannot be used against the co-accused and if it was in a separate trial, it is the responsibility of the trial judge to explain and also warn the jury that the evidence of the defendant cannot be used against the co-accused and as such should be completely ignored. However, “there are two notable circumstances whereby a confession may be admitted not only as evidence against its maker but also as evidence against a co-defendant or coaccused. The first situation is where the co-accused by his words or actions accepts the truth of the statement to make part or all of the confession statement his own”. The second exception, which is perhaps best understood in terms of implied agency, applies in the case of conspiracy: statements (or acts) of one conspirator which the jury is satisfied were said (or done) in the execution or furtherance of the common design are admissible in evidence against another conspirator, even though he was not present at the time, to prove the nature and scope of the conspiracy, provided that there is some independent evidence to show the existence of the conspiracy and that the other conspirator was a party to it”. Lord Bridge stated that “statements made to a witness by someone other than the accused were not excluded by the hearsay rule when they were put in evidence solely to prove the state of mind either of the maker of the statement or of the person to whom it was made. Yet he said that such a principle can only apply when the particular state of mind "is either itself directly in issue at the trial or of direct and immediate relevance to an issue which arises at the trial but he explained that the accused cannot call evidence of a third party's out of court admission of guilt in order to establish his own innocence.

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LAW OF EVIDENCE 14028310 The justification for this rule is based, said Lord Bridge, on the principle stated by Lord Normand in Tepper v. The Queen where it was stated that the rule against the admission of hearsay evidence is fundamental. It is not the best evidence and it is not delivered on oath. The truthfulness and accuracy of the person whose words are spoken to by another witness cannot be tested by cross-examination, and the light which his demeanour would throw on his testimony is lost. Also in the case of R v Turner it was decided that the ruling of the learned judge in refusing to admit in evidence the statement made to a third party by a person not himself called as a witness in the trial was clearly correct”.

In conclusion it can be said that the decision of Lord Slynn has left this aspect of the law of confessions in an unsatisfactory state. “Confession is an exception to the hearsay rule, perhaps because the rationale for excluding hearsay are limited”. “The first reason for exclusion is that the repetition of what another person may have said is sometimes regarded as unreliable and consequently of less probative value”. The second is that it is unjust or prejudiced to admit proof when the actual eyewitness or co-defendant is absent and the coaccused most of the times is denied the opportunity to confront and co-examine that confession. Most of the time the jury places more emphasis and weight on the out of court admission of a defendant confession leading to the extent where the juror places greater weight on the confession and less attention to independent evidence which sometimes leads to the miscarriage of justice and unfair trial of lawsuit .The use of a co-defendant previous inconsistent confession by the defendant can lead to the co – defendant being incriminated as a result of the confession of the co-defendant being given by the defendant in court sometimes leading to the pervasion and hindrance of justice as the co-accused is not given the chance most of the time to defend and cross-examine the defendant or witnesses based on the confession made.

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