Conduct in interviewing

In this edition, Denis Clark continues to discuss the law relating to evidence of confessions

In the previous edition I began a discussion of the importance and significance of the words of s76 of the Police and Criminal Evidence Act 1984:

1.In any proceedings a confession is made by accused person may be given in evidence against him in so far as it is relevant to any matter in issue in the proceedings and is not excluded by the court in pursuance of this section.

2.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 –
a)by oppression of the person who made it, or
b)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, the court shall must allow the confession to be given in evidence against him except insofar as the prosecution proves to the court beyond reasonable doubt that the confession(notwithstanding that it may be true) was not obtained as aforesaid.

I continue with analysis of the words, “in consequence of anything said or done”.

The most obvious external event which is “said or done” is the conduct of the police. However, this need not emanate from a police officer. In R v Harvey (1988) the trial judge excluded a confession to a murder under s76(2)(b) on the ground that it might have been made to protect the defendant’s lesbian lover.

The defendant was a woman of low IQ, suffering from a psychopathic disorder aggravated by alcohol abuse. Nothing was “said or done” by the police to induce the confession.

Other conduct external to the police would include a threat by a father to a son that the latter had better tell the truth or he will be beaten (cf R v Cleary, 1963), a promise by employer to employee that, if the latter “owns up”, the former will not sack him, or a threat by headmaster to a pupil that unless the latter tells the truth to a police officer, he will be disciplined.

It can be argued that the phrase “anything said or done” implies something out of the ordinary, for the proper exercise of normal police powers and procedures, as set out by Parliament, can hardly be allowed to trigger s76(2)(b). However, in contrast to oppression (see R v Fulling, 1987), no impropriety on the part of the police is required under s76(2)(b), see for example R v Harvey (1988). See also R v Morse (1991)). It is submitted that this is the correct approach — the emphasis of s76(2)(b) lies on the reliability or otherwise of the confession and not the propriety of police conduct per se. The absence of bad faith may be of some slight value in tipping the scales in favour of the prosecution and admissibility, since proper conduct is less likely to make the confession unreliable (see R v Maguire, 1989). Conversely, even where the police have clearly misbehaved (eg, R v Sparkes 1991) — failures to caution D and to keep a record of interview), that need not affect reliability.

Section 76(2)(b) encourages the defence to raise the issue of “likely unreliability” in many more circumstances than were possible under the previous law. A narrow dividing line can separate legitimate police responses from illegitimate ones. The common sense and restraint of the court are the safeguards against abuse of this defence and against simple statements, such as “I think that it would be better all round if you made a clean breast of it”, leading to the exclusion of a confession.

Section 76(2)(b) could also include “something which is properly said or done”. Code C 11.5 advises: “If the person asks directly what action will be taken if they answer his questions, make a statement, or refuse to do either, the interviewer may inform them what action the police propose to take in that event provided that action is itself proper and warranted”.

This is subject to the