Evidence of confessions

In this edition, Denis Clark continues to discuss the law relating to evidence of confessions and in particular the provisions of section 76(2) Police and Criminal Evidence (PACE) Act.

Factors relevant to s76(2)

The recording provisions of Code C were designed to protect the accused against abuse by “verballing”. If the police fail to record the interview, or to show him it for approval and D disagrees with the officer’s recollection of the record, he is saying, bluntly, that the confession is untrue (eg, R v Waters, 1989; R v Doolan, 1988), ie, the police have fabricated or misrepresented the confession.

The failure to record, coming after the confession was made, cannot be something said or done within sub-s (2)(b) but the thing done which is alleged is the making up of a confession, or the doctoring of it. Whether this is so or not, the failure to record deprives the prosecution of evidence which might be used to rebut the allegation.

The failure to caution D will also not inevitably trigger s76(2)(b). D would have to show an extra ingredient which suggests that what he said is unreliable.

Method of questioning

In so far as the questioning becomes burdensome and oppressive s76(2)(a) comes into play (eg, R v Beales, 1991, where the police repeatedly misrepresented the evidence against D and bullied him), but s76(2)(b) clearly extends further. It is thus sensible for the defence to plead both – this may encourage a court, as in R v Beales, to decide that even if s76(2)(a) does not apply, the lesser s76(2)(b) does.

How far then, does s76(2)(b) extend? The key lies in deciding whether what was ‘said or done’ was likely to render a confession ‘unreliable’. This requires the court to look carefully at the circumstances of the particular suspect and then for the prosecution to prove beyond reasonable doubt that nothing was said or done which was likely to produce an unreliable confession.

Clearly the method of questioning may produce an unreliable confession in that the suspect may speak for a variety of motives other than that of telling the truth (eg, he wants to protect someone; he simply wants to leave the police station and is prepared to say anything, in the hope of retracting it later; he is suggestible and seeks to please his interrogator; he becomes confused and mistakenly incriminates himself; or he is persuaded to speak because of promises or threats made to him).

In R v Fulling (1987), the Lord Chief Justice decided that the following definition of oppression (cited with approval in R v Prager, 1972,), was insufficient for s76(2)(a) but suggested that some of it could fall within s76(2)(b): “…questioning which, by its nature, duration or other attendant circumstances (including the fact of custody), excites hope (such as the hope of release) or fears, or so affects the mind of the subject that his will crumbles and he speaks when otherwise he would have stayed silent.”

This does, of course, put the court (and initially the prosecution) in a very difficult position in trying to fathom D’s motives for speaking. It is easier if D falls within a group identified by the PACE Act and the Code as ‘vulnerable’ (eg, juveniles). Such persons may be suggestible or readily manipulated, with the consequence that certain styles of questioning are likely to produce unreliable confessions. In relation to the mentally ill or handicapped, the prosecution can face an uphill task.

Thus, In R v Delaney (1988) the interviewing officer had throughout suggested to D that he really needed psychiatric help, and that if he owned up, people would help him. The officer played down the criminal offence and falsely aroused D’s hopes of treatment. As the Lord Chief Justice put it: “He might, by the same token, be encouraging a false confession.” In a less extreme case, the evidence, or speculation, of psychiatrists or psychologists as to the likely effect of police conduct on D could readily sow sufficient seeds to raise