Improperly obtained confession
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Sometimes a person under investigation for a criminal offence will make a Confession even knowing he is not guilty of the crime. Most people find it inconceivable that they would freely confess to crimes they did not commit, and yet people do. In addition, confessions are sometimes misheard, or misreported, or simply made up. However, this article discusses in particular situations in which confessions are made involuntarily as a result of impropeity on the part of the police. For a discussion of other false or erroneous confessions, see the article false confession.
Impropriety on the part of the police need not amount to torture, although we know of cases where the actions of the police have amounted to torture by any reasonable standards. More often, the impropriety amounts to attempts to take advantage of the suspect's vulnerability. Clearly a confession obtained in such circumstances ought not to be admitted; not merely because the law has to show its repugnance for such behaviour, but because the confession is likely to be unreliable.
The main safeguard against the admission of unreliable confessions is found in s.76(2) of Pace. Sub-para (a) renders inadmissible, as a matter of law, evidence which the prosecution cannot prove was not obtained by oppression; sub-para (b) renders inadmissible evidence which was obtained in circumstances where anything said or done makes it unreliable. The judge has no discretion here -- if the prosecution cannot prove, beyond reasonable doubt, that the evidence was not obtained by oppression, it must be excluded.
Even if evidence is not excluded, as a matter of law, under s.76(2), it may still be excluded, at the judge's discretion under s.78(1), if it if would adversly affect the fairness of the proceedings. For the defendant, s.76 is clearly the more powerful provision, because it imposes a burden of proof on the prosecution. s.78 will require at least some evidence to be adduced to raise the possibility that the confession was unfair.
It should be noted that s.76A (inserted by the CJA_2003) provdes the same safeguards when a confession is tendered as evidence against the defendant by a co-defendant.
s.76(2)(a) -- confession obtained by oppression
The defence need only make a representation to the court that the evidence was obtained by oppression. Then the prosecution must prove, beyond reasonable doubt, that it was not. According to s.78(8), oppression includes, but is not limited to, torture, inhuman or degrading treatment, and the use or threat of violence. It is no help to the prosecution to claim, or even prove, that the confession is true. The question for the court is whether the means employed to elict the confession was oppressive, not whether it produced the right answer. Indeed, in R v Cox  Crim LR 276 the Court of Appeal held that the trial judge should have excluded a confession that was obtained by oppression even when the defendant admitted it was true.
Although s.78(8) lists some behaviour that amount to oppression, it is not a definition or an exhaustive list. Conequently it frequently falls to the courts to decide whether particular instances of behaviour were oppressive or not. In RVFulling1987 it was stated that oppression had to amount to burdensome, harsh, wrongful, unjust, or cruel treatment; unpleasant and disreputable mind-games played on the accused by the police were not oppressive, however disagreeable such tactics might be. Similar, it is not oppressive to be 'rude and discourteous' (R v Emmerson (1990) 92 Cr Ap R 284).
s.76(2)(b) -- confession rendered unreliable by the circumstances
This provision requires the prosection to prove that the confession was not rendered unreliable by 'anything said or done'. This provision is potentially wider than s.76(2)(a), as it covers not only threats, but promises. It might apply if, for example, the suspect were offered favourable treatment in return for a confession. This favourable treatment might amount to a promise that the police will not oppose a bail application if the suspect makes a confession (PACE Code C 11.5 prohibits this behaviour as well). Or the police might suggestion that friends or relatives of the suspect might not be charged if he confesses.
As a general principle, 'anything said or done' refers to things said or done by the police to the suspect. It does not apply to unpleasant circumstances that the defendant has brought on himself. In the notorious case of RVGoldberg1988, a confession made by a herion addict in withdrawal, in order to bring about his early release to obtain a further dose, was ruled by the Court of Appeal to be admissible. However, where the suspect has not his misfortune on himself, the courts should be more sympathetic. In RVMcGovern1990, for example, it was held that the accused pregnancy, distress, and vomiting ought to have caused the judge to exclude her confession.
s.76(2) -- requirement of causation
A confession elicited by oppression, or in circumstances that render it unreliable, must be excluded. However, it appears that the improper behaviour of the police will not of itself make the confession inadmissible. The impropriety must cause the confession; if the suspect would have confessed anyway, s.76(2) is not engaged, however disreputable the behaviour of the police (R v alladice (1988)).
s.78(1) -- Fairness
It would appear that the fact that a confession does not offend against s.76(2) does not prevent it being excluded under s.78(1), on the basis that it would adversely affect the fairness of proceedings. Note that s.78 is not as favourable to the defendant as s.76, because it gives the defendant at least an evidential burden to satisfy. So, although s.78 applies to confessions, it applies to much other evidence besides, and is discussed in more detail in the article Improperly Obtained Evidence.
Confessions that are elicited after gross breaches of PACE Code C, or s.58 of PACE (access to legal advice) are likely to lead to an exclusion under s.78, but de minimis (trivial) or technical breaches will not. For example, in Alladice, it was accepted that denying the suspect access to legal advice was a breach of s.58, but there was no particular reason to believe that the suspect -- an experienced criminal -- would have responded any differently to question if he had received legal advice. In R v park (1994), it was accepted that questioning a suspect without caution amounted to a breach of s.10(1) of PACE Code C, but since few questions were asked, and they were of a relatively general nature, this breach was not sufficiently serious to engage s.78.