Excluding confessions from evidence in a criminal case

Excluding confession evidence

At Olliers we are very often contacted by clients who may appear to have made some form of ‘confession’ during the course of an interview under caution. In some cases, it may be possible to apply to the court to exclude such confession where it would be unfair for such confession to be put before the court or where the circumstances in which it was obtained may be unreliable.

What is a confession?

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 not;
• Whether made in words or not.

What is the law in relation to seeking to exclude confessions?

The Police and Criminal Evidence Act 1984 contains a number of provisions which provide discretion for the court to exclude evidence.

Section 76 of PACE deals with challenges to the admissibility of confessions in criminal proceedings.  Section 76(2) directs a court to exclude confession evidence obtained by oppression in circumstances which are likely to make the confession unreliable.

Whilst the confession itself may be excluded, the legislation allows facts discovered as a result of the confession or the way in which defendants speak, write or express themselves to be put before the court as evidence.

Section 78 of the Police and Criminal Evidence Act provides a discretion for the court to exclude evidence which would otherwise be admissible against the defendant on the basis it would be unfair to adduce it.

At court where the admissibility of confession evidence is challenged the prosecution must establish beyond reasonable doubt that the confession was not made as a result of oppression nor in circumstances which were likely to have made it reliable.

How is oppression defined?

For the purposes of section 76 of the Police and Criminal Evidence Act the term ‘oppression’ includes (torture, inhuman or degrading treatment, and the use of threat of violence’. This reflects the wording of article 3 of the European Convention and Human Rights Act.

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.

What is an unreliable confession?

The case of R v Fulling [1987] 2 All E.R. 65 gave unreliable confessions their ‘ordinary dictionary meaning’ and therefore they can include the following;

• 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
• 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
• Failure of the defence solicitor or appropriate adult to act properly e.g. making interjections during interview which are hostile to the defendant

Safeguards in relation to mental health issues

Section 77 of the Police and Criminal Evidence Act provides additional safeguards for those who suffer from a ‘mental handicap’. This is defined as being ‘in a state of arrested or incomplete development of mind which includes significant impairment of intelligence and social functioning’.

In considering whether or not to exclude a confession the court should consider medical evidence as to the mental health condition of a suspect. The disorder must be of a type which might render a suspect’s confession unreliable and there must be a significant deviation from the norm. In addition, there must also be a history of making admissions which point towards or explain the abnormality of minds suffered by the suspect and that solely based on the history given by the suspect.

Unfairly Obtained Evidence

Section 78 of PACE enables a court to exclude evidence which would otherwise be admissible against a defendant on the basis it would be unfair to adduce it.

The nature of the court’s discretion was explained in the case of R v Quinn [1990] Crim. L.R. 581:

“The function of the judge is therefore to protect the fairness of the proceedings, and normally proceedings are fair if … all relevant evidence [is heard] which either side wishes to place before [the court], but proceedings may become unfair if, for example, one side is allowed to adduce relevant evidence which, for one reason or another, the other side cannot properly challenge or meet.”

Challenges to the Fairness of Evidence

Areas where successful challenges 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.

Court Practice on Challenging Confessions, Unfairly Obtained Evidence and Breaches of the Codes of Practice

The admissibility of a confession may be challenged in the Crown Court or the Magistrates’ Court by the defence or by the court itself. Section 76(2) provides that the Court “shall not allow the confession to be given in evidence against [the defendant]” except in so far as proved admissible by the prosecution. This requires live prosecution witness evidence to support its case for evidence to be admitted. The defendant is not obliged to give evidence or call witnesses in support of his or her case. Nor is the court concerned as to the truthfulness of the confession.

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 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.