Written 18th February 2025 by Aimee Darbyshire-Ellison
Olliers’ trainee solicitor Aimee Darbyshire-Ellison considers the circumstances in which confessions and other evidence may be excluded as evidence in criminal cases.
What is the definition of a confession in a criminal case?
Section 82(1) of the Police and Criminal Evidence Act 1984 defines a confession as:
- Any statement wholly or partly averse to the person who made it; whether made to a person in authority or otherwise;
- Whether made in words or otherwise
This means that a confession can be made orally or in written form and could include conduct such as a nod of acceptance. This is a wide definition covering any statement made by the suspect of the accused on which the prosecution seeks to rely.
The role of the legal adviser in a police interview is very important, those being interviewed may feel pressurised into confessing to a crime that they have not committed. Instructing a solicitor to attend a police interview will ensure that you are appropriately represented throughout the process.
When can a confession be excluded from a criminal case
Courts will look at whether there have been breaches of PACE and relevant Codes of Practice in deciding on the admissibility of confession evidence although a breach does not mean automatic exclusion of a confession.
The procedure for determining the admissibility of a confession is a voir dire i.e. a trial within a trial. This is a pre-trial hearing conducted in the absence of the jury where the trial judge will listen to the evidence of how the confession was obtained and the arguments put forward by both the prosecution and defence lawyers.
Confessions obtained by oppression
s.76 (2)(a) of PACE 1984 states that confession evidence must be excluded ‘if in any proceedings where the prosecution proposes to give in evidence confession made by an accused person, it is represented to the court that the confession was or may have been obtained by oppression of the person who made it’.
Oppression is defined to include torture, inhuman or degrading treatment and the use of threat of violence.
Case law has held that ‘oppression’ is to be given its ordinary dictionary meaning and likely to involve some impropriety on the part of the interrogator.
The courts recognise that oppression is a matter of degree and what may be perceived as oppressive by one person may not be for another therefore personal characteristics as well as mental strength and weaknesses will be considered.
Unreliable confessions
s.76 (2)(b) of PACE 1984 states ‘If, in any proceedings where the prosecution proposes to give in evidence a confession made by an accused person, it is represented to the court that the confession was or may have been obtained in consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in consequence thereof’.
If the circumstances at the time could lead to an unreliable confession it must be excluded regardless of whether it is true or false. He court will look at anything said or done to the accused in the circumstances existing at the time including those surrounding detention and interrogation.
Some examples of circumstances leading to an unreliable confession are as follows:
- Confessions obtained as a result of an inducement e.g. a promise of bail or a promise that prosecution would not arise following the confession
- Hostile/aggressive questioning
- A failure to record accurately what was said
- A failure to caution a suspect prior to interview
- Failure by the police to identify a particular vulnerability of the suspect due to an existing medical condition or substance misuse
- A failure to provide an appropriate adult in circumstances where one is required
- A failure to comply with the code of practice in relation to the detention of the accused e.g. failing to allow sufficient rest prior to an interview
Unfairly Obtained Evidence
s.78 PACE 1984 states ‘In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it’
This is where it is held that the admission of the confession will have an adverse effect on the fairness of the proceedings. This would include where the police failed to secure access to a solicitor, to properly record an interview, to provide safeguards in relation to a vulnerable suspect or other deliberate breaches of Code C. There is therefore a great overlap between reasons for excluding evidence according to s .76(2) b and s.78 PACE 1984.
Areas where successful challenges to the fairness of evidence may be made include where evidence has been obtained as a result of:
- Breaches of the European Convention on Human Rights
- Breaches of the Codes of Practice issued under PACE
- Bad faith on the part of the police.
If the provisions of a relevant Code of Practice are not followed, this may result in evidence being excluded. However, not all breaches will lead to evidence being deemed inadmissible. The court will look for a significant and substantial breach before going on to consider whether or not to exclude evidence obtained as a result of such breach.
Olliers Solicitors – specialist criminal defence lawyers
At Olliers we have significant experience of advising in cases where applications are made to exclude confession evidence or other evidence under section 78 on the basis it would be unfair to adduce it.
If you require advice in relation to excluding confession evidence in a criminal case or representation in a police interview please contact our new enquiry team either by email to info@olliers.com, or by telephone on 020 3883 6790 (London) or 0161 834 1515 (Manchester) or by completing the form below and our new enquiry team will contact you.
Manchester
Head Office
- 0161 8341515
- info@olliers.com
- Fourth Floor, 44 Peter Street, Manchester, M2 5GP
- About the Author
- Latest Posts
Aimee joined Olliers in August of 2023 following the summer internship.
Aimee joined the firm as a member of the support team. Enabling her to gain valuable practical experience, whilst at the same time completing her Legal Practice Course.
