Oppressive interviewing

The availability of a tape-recording (as in Beales, West and Paris, Abdullahi and Miller) will be crucial in helping a court to decide whether the questioning has reached a degree of impropriety to be called oppressive. Lord Taylor LJ was clearly shocked after listening to the tape-recording of the interview with Miller and expressed the view that short of physical violence it was hard to conceive of a more hostile and intimidating approach by police officers to a suspect. However, the Fulling definition of oppression means that extreme and improper conduct is required and that the style of questioning will more often fall for consideration under s76(2)(b), but where it falls short of oppression it will not necessarily be regarded as likely to render any confession unreliable; it remains a matter of degree and the circumstances, including the characteristics of the suspect, are all important.

The following additional points on s76(2)(a) can be noted.

(1) The confession must have been obtained by oppression. If D confesses before being subjected to oppressive treatment, s76(2)(a) does not apply. More realistically, there may be occasions when the police have used oppression but the accused confesses for other reasons unconnected with it (eg after a night in a cell, following oppression, when he decides to get the `matter off his chest` and save further anxiety to his family). However, the defence will in all probability raise the issue of oppression and it will be extremely difficult for the prosecution to rebut the alleged causal connection between the police conduct and the confession.

(2) A confession, which a court decides was, or may have been, obtained by oppression, must be excluded, even if it is true. For example, D is severely beaten up by enraged bystanders, neighbours, and confesses to serious sexual offences against young children. The oppressive and improper conduct need not emanate from the police (despite Lord Lane`s reference in Fulling to impropriety on the part of the interrogators) and D`s confession will be excluded and, unless supported by other independent evidence or testimony (often unavailable in such cases), the prosecution will fail. Similarly if D is beaten up by vigilantes  and told to confess to his crimes. (If not within sub-s (2)(a) it would be within sub-s (2)(b).)

(3) D can be oppressed by the use of threats or violence against others (eg a spouse, children or close friends) of which he is aware. Such psychological pressure can overlap with the question of reliability and can be excluded on that basis as well.

(4) Since oppression must be the consequence of some improper conduct by the oppressor(s), acts the unintended consequence of which is oppression are probably not within s76(2)(a) unless they are improper acts. Proper acts which cause a person to be oppressed are not within s76(2)(a) but may be within s76(2)(b).

(5) If a confession is obtained by oppression, the things said or done will also render the confession unreliable under s76(2)(b) (though that subsection need not be relied upon). However, things said or done which do not amount to oppression may nevertheless render the confession unreliable under s76(2)(b) (ie the greater (2)(a) includes the lesser (2)(b) but the lesser does not necessarily include the greater).

(6) Since physical injury is the clearest form of oppression, medical evidence assumes particular importance. Medical examination, preferably by the suspect`s own doctor, should be readily allowed at the conclusion of interrogation and to avoid subsequent allegations of brutality, the police should be alert to the need for medical examination before the interrogation, especially if the person arrives at the police station already bearing bruises.

(7) It should be remembered that `oppression` is not confined to conduct which took place at the police station. Questioning or conduct that occurred at the time of arrest or while the person was being conveyed to a polic