Fairness of confession

Denis Clark continues to discuss the law relating to evidence of confessions and in particular the manner in which section 78 of the Police and Criminal Evidence (PACE) Act may be used to challenge the fairness of a confession.

Unlike s76 (Art 74), there is no direction in s78 as to the burden and standard proof. In most cases the defence will raise the issue, though there is nothing to prevent the court doing so of its own motion (cf s 76[3], Art 74[3]).

Unless D objects, the prosecution ‘proposes to rely’ on the evidence (s78), therefore D must clearly raise s78 and point to some evidence to suggest that the admission of the evidence would have such an adverse effect on the fairness of the trial that it ought not to be admitted. Sometimes this will be readily apparent (e.g., R v Mason, 1988), in other cases D will have to produce evidence. But, as will be seen, misconduct by the police is not the criterion for s78; the defence must go further and suggest to the court that the fairness of the proceedings will be adversely affected if the confession is admitted.

Once this evidential burden has been discharged, the task falls then to the prosecution to rebut the alleged adverse effect on the fairness of the trial. As to the overall burden of proof, on a strict reading of s78 (and in contrast to the express instructions of s76) it is suggested that the burden of proof lies on the defence — they must convince the court to such an extent ‘that it appears to the court’ that s78 is satisfied. If this is correct then the standard is the civil one (partly because of the word ‘appears’ and partly in line with the general rule of evidence that a burden of proof on the accused is to be discharged to the balance of probabilities). In seeking to rebut the case presented by the defence the prosecution would appear to have to persuade the judge beyond reasonable doubt.

The cases have not yet squarely confronted these issues and there are indications that (see the commentary to R v Keenan, 1990) an evidential burden lies initially on D and that, if the legal burden lies anywhere, it is on the prosecution (see also R v Beveridge, 1987; Vel v Owen, 1987). The following preliminary points can be noted.

(1)Section 78 only applies to the evidence on which the prosecution proposes to rely. This means that in a jury trial it must be argued before the evidence is given. On summary trial it may be argued at that point or at the end of the prosecution case including the disputed evidence (Halawa v FACT, 1995).

(2)The evidence must adversely affect the fairness of ‘proceedings’ and these are defined (s82[1], Art 76) as criminal proceedings (thus including a court-martial).

(3)Though it is the adverse effect on the fairness of the proceedings which concerns the court, the whole of the investigatory stage is open to scrutiny.

(4)Section 78 is quite separate from the common law power to exclude confessions (s82[3], R v Sat-Bhambra (1988), though that too is concerned with the fairness of the trial (R v Sang, 1980).

(5)In one of the earliest decisions on PACE it was decided by the Court of Appeal that s78 applies to confessions and that they are not the sole preserve of s76 (R v Mason, 1987).

(6)The relevant confession has usually been made to the police but this is not essential. Section 78 can be used to try to exclude a confession made to others (e.g., a doctor as in R v McDonald, 1991).

(7)One useful supporting role for s78 is where the prosecution has not used D’s confession (because it was obtained in breach of s78) but D2 proposes to raise it. Since s76 only concerns a confession which ‘the prosecution proposes to give’ (s76[2]), it could be unfair to allow D2 to do so. The s78 discretion could be used to prevent him doing so.

(8)The court exercises a discretion and this gives the trial judge some leeway. Provided that he interprets the PACE Act and the Codes correctly (no mean achievement) and professes to consider all the circumstances, t