When hearsay pays

One of the most important common law exceptions to the rule against hearsay is the informal admission, ie, an incriminating statement made by a party to proceedings.

It is admissible as evidence of the truth of its contents on the basis that a person is likely to be telling the truth when he says something against his own interest. At common law when such an admission was made by an accused person before his trial and to a person in authority (usually the police), it was known as a confession. It can range from a full, signed admission of guilt, to an incriminating comment and to a mixed statement containing admissions and exculpations. If this last example occurs, the whole statement should be put in evidence, though the judge may point out to the jury that the incriminating parts are likely to be true, whereas the excuses may not carry the same weight (R v Sharp (1988) followed in R v Grayson (1993) and R v McCleary (1994)). The modern test for the admissibility of a confession is contained in s 76 of the PACE Act 1984.

Definition

“Confession” includes any statement, wholly or partly adverse to the person who made it, whether made to a person in authority or not and whether made in words or otherwise (s82(1)). A confession may be made orally, in writing, by conduct or any other way of communicating information. Thus if D accepts, by word or conduct, eg, he nods assent, an accusation made by the victim of a crime, then to the extent that he has accepted it, the statement becomes his own (R v Christie (1914)). Section 82(1) clearly covers an accused who re-enacts a crime on videotape (cf Li Shu-Ling v R (1989)). By confining the definition to “adverse” statements”, s82(1) does not cover exculpatory statements. So if, after being threatened, D makes such a statement in which, for example, he sets up a false alibi and later at his trial puts forward another inconsistent defence, the prosecution can adduce the previous statement and cross-examine D on it since it is not a confession and does not have to satisfy the test of admissibility for confessions. On the other hand, a plea of guilty is within the definition. Thus, if D pleads guilty but is later permitted to change his plea to one of not guilty, the prosecution may have to satisfy the test of admissibility before the previous plea is admitted. Even if it is admissible, the trial judge may exclude it in the exercise of his discretion to ensure a fair trial if the plea was entered when D was unrepresented or on a mistaken view of the law. Though usually made to the police a confession may be made to anyone, friend, relative or spouse. The only difficulty with confessions made to a spouse is that a spouse is a compellable witness in only a limited number of cases (see s80 of the PACE Act ).

Admissibility of confessions

Section 76(1) provides that:

lIn any proceedings a confession made by an 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.

l“Proceedings” means criminal proceedings, including courts martial (s82(1)), therefore s76(1) applies to all such proceedings. However, in R v Beckford (1991) the subsection was held to apply only to confessions tendered by the prosecution.

The test for admissibility

Section 76(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 have been made by him in consequence thereof, the court shall not allow the confession to be given in evidence except in so far as the prosecution proves to the court beyond reasonable doubt that the confession (notwithstanding that it