Confession Evidence — SQE1 FLK2 Criminal Law and Practice

A woman is interviewed under caution about a killing. Twice she denies it. Then the officer tells her that if she admits it, he will see to it that the judge deals with her leniently. She admits it at once, and describes exactly what she did. By the trial the prosecution also have footage from a neighbouring building and scientific evidence. Both show her account is accurate. Can the judge keep that confession from the jury?

Yes. This is Confession Evidence, and that is the sentence at the heart of it. A confession may be excluded notwithstanding that it may be true. How it was obtained matters more than whether it is right. Keep that woman in mind. We come back to her.

Here is the route. What counts as a confession, and it is wider than you think. Then the general rule that a confession is admissible. Then the two mandatory exclusions, oppression and unreliability, and who has to prove what. Then what survives an excluded confession. Then s.78, the safety net. Then the voir dire, co-defendants, the Codes, and silence.

Start with the definition, because it is the widest thing in the topic. Under s.82(1) of PACE 1984, a confession includes any statement wholly or partly adverse to the person who made it. It counts whether made to a person in authority or not, and whether made in words or otherwise.

Unpack that. Partly adverse is enough. It does not have to be made to a police officer. It does not have to be spoken. So try one. A man tells his neighbour that he was standing outside the burgled house late the previous night, but that he never went in. Confession, or not?

Confession. Placing himself outside the house late at night is adverse to him, even though he denies going in. A nod of the head can be a confession. A letter to a friend, written weeks before arrest, is a confession. It needs no signature, no witness, and no police officer anywhere near it.

Then there are mixed statements. I hit him, but it was self-defence. Both halves in one breath. The prosecution cannot take the admission and edit out the excuse. R v Sharp settles it: the whole statement goes before the jury as evidence of the facts it states, admissions and excuses alike. The jury may give the self-serving parts less weight.

But adversity is judged when the statement was made. A man says: you have the wrong man, I was at my brother's house all weekend. Wholly exculpatory. Months later, phone evidence puts him two streets from the robbery. R v Sat-Bhambra: a statement that was self-serving when made does not become a confession because later evidence exposes it as a lie.

Now the general rule. Under s.76(1) a confession may be given in evidence against the person who made it. That is so far as it is relevant to a matter in issue, and is not excluded by the court. Admissible is the starting point. Everything that follows is a way out of it.

The first way out is oppression, under s.76(2)(a). If the court is satisfied the confession was obtained by oppression of the person who made it, it shall not be admissible. Shall not. No discretion at all.

What is oppression? Section 76(8) says it includes torture, inhuman or degrading treatment, and the use or threat of violence, whether or not amounting to torture. R v Fulling adds the ordinary meaning: the exercise of authority in a burdensome, harsh or wrongful way. The threshold is high.

How high? Two hours of questioning, under caution, a solicitor beside him throughout, one break. The officer raises his voice twice and slaps his hand on the table. He keeps saying the man knows perfectly well what he did, and that everyone can go home once he says so. Oppression?

No. Rude, hostile, ill-tempered questioning is not oppression. There has to be something fundamentally wrong with how the suspect was treated. Making him uncomfortable or tired is not enough.

Contrast this. Eleven hours in the cells, and then the officer says that unless he admits the theft they will arrest his partner for it and keep her overnight. They have nothing to connect her with it. He knows she is unwell. He admits it within minutes. That is capable of being oppression, and of being unreliability too. Argue both.

Which brings us to s.76(2)(b), the limb that does most of the work. Was the confession obtained in consequence of anything said or done? And was that thing likely, in the circumstances existing at the time, to render unreliable any confession made in consequence of it?

Three words in that carry the test. Likely. Any. Consequence. Likely, because it is objective and forward-looking: would the thing said or done be likely to produce an unreliable confession? Any, because the question is not whether this defendant was actually affected. And consequence, because there must be a causal link.

The thing said or done must be external to the accused. It has to come from outside him. But it need not be improper, and it need not come from the police. A mother is allowed a visit before the interview. She tells her frightened son to just say he did it and they will let him home tonight. That is capable of engaging the subsection.

What kinds of things? An inducement: confess and you can go home. Deception about the evidence. Intoxication, if the suspect is so drunk he cannot think clearly, though being slightly drunk will not do. Mental disorder or learning disability reducing capacity. Denial of access to a solicitor. A failure to caution, so the suspect never knew he could stay silent.

Now a timing point the examiners love. A full admission at a quarter past ten, solicitor present, nothing wrong with the interview. Twenty-five minutes later, as it winds up, the officer says: good job you told us, I will put in a word with the prosecuting authority. Nothing further of substance is said. Does that get the admission excluded?

No. The confession has to be obtained in consequence of the thing said or done, and it was already complete. Contamination does not run backwards. Had he gone on to admit more after the remark, those later answers would have been vulnerable. Timing decides it.

Now the burden, and this is the highest-yield paragraph in the topic. The defence do not have to prove anything. They only have to represent to the court that the confession was, or may have been, obtained by oppression, or by something likely to render it unreliable.

Once that representation is made, s.76(2) says the court shall not allow the confession in evidence unless it is proved beyond reasonable doubt that it was not so obtained. Proved by the prosecution. To the criminal standard. On the negative.

And there sit the words that answer our opening. Notwithstanding that it may be true. Our woman's confession is accurate, and the footage and the science prove it. None of that saves it. A promise to secure a lenient judge is a classic inducement, coming straight after two denials. The prosecution keep their other evidence. They lose the confession.

Exclusion is not total. Section 76(4) preserves two things. First, facts discovered as a result of the confession. English law has no fruit of the poisonous tree doctrine. If an oppressive interview led divers to a knife in a canal, the knife and the blood on it are still evidence.

But s.76(5) and (6) add the sting. Nobody may tell the court that the fact was discovered as a result of something the accused said, unless the accused or someone on his behalf gives that evidence. So the officer may say he searched the canal and found the knife. He may not say why he looked there.

Second, s.76(4)(b): so much of the confession as shows that the accused speaks, writes or expresses himself in a particular way. If an excluded written confession misspells a word in the same odd way as the blackmail notes, those passages may be edited out and used for comparison. The admissions around them stay out.

Then s.78, the safety net. The court may refuse prosecution evidence, having regard to all the circumstances, including the circumstances in which it was obtained. The test is whether admitting it would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.

Hold the two side by side. Section 76 is mandatory, confined to confessions, and puts the burden on the prosecution to the criminal standard. Section 78 is discretionary, reaches any prosecution evidence, and prescribes no burden at all. Both can be argued about the same confession, and usually are.

R v Mason shows what s.78 is for. Officers investigating a car fire told the suspect, and told his solicitor, that his fingerprints were on fragments of the bottle used to carry the petrol. There were no such fingerprints. The solicitor, believing the case overwhelming, advised him to give his account, and he admitted pouring the petrol.

No oppression. Nothing that made the admission untrue. Excluded anyway, under s.78. Deceiving the suspect was bad. Deceiving his legal adviser was worse, because it corrupted the very safeguard the law provides.

And breaches carry forward. In R v McGovern a vulnerable suspect was wrongly refused a solicitor and confessed. The next morning she was interviewed again, properly, with a solicitor, and repeated it. Both went. Once she had already confessed, the first breach was still working on her mind. The cat was out of the bag.

How is any of this decided? A trial within a trial. The defence object, the jury is sent out, both sides call evidence about how the confession was obtained, and the judge rules under s.76, or s.78, or both.

Then the jury comes back and is told nothing. Not what was argued. Not what was ruled. Not, if the confession was excluded, that any confession was ever made. Telling them and then directing them to ignore it would destroy the ruling. If it is admitted, they simply hear it and decide what weight it deserves.

Co-defendants next, and this is where people go wrong. At common law a confession is evidence against its maker alone. If one defendant admits a robbery and says the other planned it and supplied the gun, the prosecution cannot use her words to prove his part in it.

R v Hayter is the single qualification. A jury sure of her guilt on the strength of her own confession may treat her guilt as a fact when they consider the case against him. What they may not do is treat the contents of what she said as evidence against him.

Section 76A is a different question again. It lets a co-accused adduce another defendant's confession where it helps his own case. And the standard drops. If oppression or unreliability is represented, it goes in for the co-accused only if proved on the balance of probabilities that it was not so obtained. Balance, because it is not the Crown asking.

The PACE Codes sit underneath all of it. Code C requires a caution before any questions about the offence, and free legal advice at any stage. It requires an appropriate adult for vulnerable suspects, recorded interviews, rest breaks, no oppressive questioning, and accurate records. A breach is never automatically fatal. It is a relevant consideration under both s.76 and s.78.

And one section bites after admissibility is settled. Take a case that depends wholly or substantially on a confession by a defendant with a learning disability, made without an independent person present. Section 77 requires the judge to warn the jury of a special need for caution, and to explain why.

A word on silence, because it sits beside all this. The caution has three limbs. You do not have to say anything. It may harm your defence if you do not mention when questioned something you later rely on in court. Anything you do say may be given in evidence.

The middle limb is what makes s.34 of the Criminal Justice and Public Order Act 1994 work. Leave a fact out at interview, rely on it at trial, and the jury may draw an adverse inference. Give the caution without that limb, and no inference may be drawn at all.

Finally, the rules do not stop at the custody door. Sections 76 and 78 apply to every confession: to a friend, a neighbour, a prison officer, or posted online. Such confessions are simply less likely to be challenged, because there is no police pressure to attack. And Article 6 of the European Convention on Human Rights runs through the whole scheme. The Human Rights Act 1998 requires PACE to be read compatibly with the right to a fair trial.

A word on how this is tested. SQE1 will not ask you to recall a case name or a subsection number. You get a scenario, five answers, and one instruction: pick the best. So learn what the provisions do. The names are pegs to hang them on.

If you keep only three. Section 82(1), because the definition is far wider than anyone expects. Section 76(2), because the defence only have to represent, and then the prosecution must disprove it beyond reasonable doubt, notwithstanding that it may be true. And R v Mason, because s.78 is the safety net for everything s.76 does not reach.

Four traps. One: oppression is not aggressive questioning. Section 76(8) is about torture, inhuman or degrading treatment, and violence or the threat of it. A raised voice and a hand on the table is bad interviewing. It is not oppression, and answering that it is will cost you the mark.

Two: if the confession is excluded, the jury must not know it ever existed. Not that a hearing took place, not that an objection was taken, and above all not that any confession was made. There is no direction that can unring that bell.

Three: an adverse inference from silence can never be the sole basis for a conviction. It can support the other evidence. It cannot replace it. Section 38(3) of the Criminal Justice and Public Order Act 1994 says so.

Four: relevance still matters. A confession has to be relevant to a matter in issue in these proceedings. A confession to a burglary is not admissible at an assault trial unless the two are connected.

Quick check. A youth of seventeen is arrested for shoplifting. No appropriate adult is called, and he is interviewed alone at two in the morning, because the custody officer decides the matter is too trivial to wait. The officers are courteous, he is cautioned, and he appears to follow what is put to him. He admits taking the goods. The defence accept there was no oppression, and nothing likely to make his answers unreliable.

Three candidate answers. One: the judge must admit it, because the interview was courteous and the youth understood what was asked. Two: the judge must exclude it, because a breach of the Codes always bars evidence obtained after it. Three: the judge may exclude it, because interviewing a juvenile with no appropriate adult is a serious breach. Pause here if you want a moment.

The answer is three. Anyone under eighteen is a juvenile under Code C, and must not be interviewed without an appropriate adult except in the urgent cases the Code specifies. The convenience of the officers is not one of them. But no breach of the Codes excludes evidence automatically.

So the route is s.78. The judge may refuse the evidence if admitting it would so damage the fairness of the proceedings that it ought not to be admitted. Denying a juvenile the very safeguard designed for him, in an interview in the middle of the night, is the kind of significant and substantial breach that engages the discretion. May, not must.

Five things to take away. One: a confession is any statement wholly or partly adverse to its maker, to anyone, in words or otherwise, and adversity is judged when it was made. Two: oppression under s.76(2)(a) is a high bar, and unreliability under s.76(2)(b) is where most arguments live.

Three: the defence only represent, the prosecution must disprove beyond reasonable doubt, and a confession goes notwithstanding that it may be true. That is why our woman's accurate confession never reaches the jury. Four: s.76 is mandatory, s.78 is discretionary, and s.78 catches what s.76 misses. Five: one defendant's confession is not evidence against another. Next time, Character Evidence.

Practise this topic with exam-style questions at sqe1prep.co.uk. This episode is for education and exam revision only, not legal advice, and we are not affiliated with or endorsed by the SRA or Kaplan.