The use of confessions of, and against, co-defendants

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A Confession made by the defendant during criminal proceedings is admissible when tendered as evidence against him by the prosecution. This is an exception to the general rule that Hearsay statements are not admissible. However, when a number of people are alleged to be involved in the same crime, it is not unusual for them to be tried together. Then the question arises whether a confession made by one is admissible for, or against, another, and whether one defendant's confession can implicate another.

Confessions exculpating co-defendants

If A and B are on trial together, and A confesses to the crime, then B may wish to adduce the confession of A as evidence that he, B, did not commit the crime. Until recently there was some uncertainty whether this would be allowed. However, in R v Myers (1997) the House of lords held that a voluntary_ confession of a co-defendant tendered by the defendant would be admissible, even if it would have been excluded had it been tendered by the prosecution.

So, for example, if A's confession is excluded under s.78, perhaps because it was obtained by secretly recording his conversation in flagrant breach of Code C, A can still be cross-examined on the confession by B. However, is A's confession is excluded under s.76, it cannot be considered a voluntary statement, and remains entirely inadmissible.

This position is confirmed, and its scope somewhat broadened, by s.128(1) of the CJA_2003, which makes a confession by one defendant admissible for the defence of another, subject to the same safeguards as apply to confessions tendered by the prosecution. These safeguards are to prevent one defendant using improper means (threats, violence) to secure a confession from a co-defendant (see improperly obtained confession). However, if a confession is excluded under s.76 on the basis that the prosecution was unable to prove beyond reasonable doubt that it was elicited by oppression, it remains possible in principle for a co-defendant to admit it by showing that on the balance of probabilities in was not elicited by oppression. The risk here is that the co-defendant could have his own confession admitted into court on a much lower standard of proof than would otherwise be the case. This is potentially very damaging for his defence.

Consequently, the Law Commission recommended in its final report on hearsay evidence (LC245) that the jury must be warned that a confession admitted to exonerate one defendant must not be taken into account when considering the guilt of another. Of course, if the confession is properly admitted against the defendant by the prosecution, that's a different matter. The LC's recommendation did not receive statutory force in the 2003 Act. In any event, one has to wonder whether juries are able to carry out such complex logical balancing exercises.

Confessions implicating co-defendants

A statement made by defendant X that defendant Y committed the crime is not a confession on the part of Y, even if it amounts to a confession by X. The classic example is where a witness says of defendant X: 'X told me he did it, and Y helped him. Because this statement is not a confession by Y, it is not admissible against Y unless it can be brought within one of the other exceptions to the exclusionary hearsay rule.

This is straightforward in principle, but not in practice. If the witness's account is heard as evidence in front of the jury, it is very difficult to prevent the jury hearing the statement that implicates Y as well as X. At the least, the judge is expected to warn the jury that X's confession must not be taken into account when assessing the guilt of Y (R v gunewardene (1951)). In modern practice, however, the prosecution is expected, where possible, to edit out references to Y. However, if X wishes to adduce admissible evidence that has the effect of implicating Y, the judge has no discretion to prevent this.

In such circumstances, the jury must be warned that the statement implicating B must be given no weight, but it is debatable whether a jury will be able to put such a statement from their minds.