Admissibility of Confessions under PACE 1984 - Essay Example

?Question Admissibility of Confessions under PACE 1984 Previously, confession ments were admitted into evidence as an exception to the rule against hearsay as proof of the truth of “the matters admitted.”1 Although confession statements remain exceptions to the rule against hearsay, the admissibility of confessions is now regulated by the Police and Criminal Evidence Act 1984 (PACE). Section 76 (1) provides that a confession statement may be admitted against the accused person “if it is relevant to any matter in issue” and “is not excluded by the court in pursuance of this section.”2 Section 76(2) of PACE basically provides that a confession statement may not be admitted into evidence unless the prosecution proves beyond a reasonable doubt that the statement was not obtained by oppression or as a result of “anything said or done” which likely “in the circumstances existing at the time” may render the confession “unreliable”.3 The main purpose of Section 76 is therefore to ensure that confession statements may only be admitted if they are not obtained in circumstances that render them unreliable. The obvious test is whether or not the statement was made voluntarily or not as evidence by the Section 76(2) of PACE. There are other safeguards against the admission of a confession that may have been improperly obtained and thus rendering them unreliable. Section 78 of PACE provides that a confession may be excluded if admitting the confession would render the proceedings unfair.4 Section 82(3) of PACE incorporates the common law principle of judicial discretion and permits the exclusion of a confession statement if its prejudicial effect would exceed it probative value.5 The main purposes of the safeguards against admitting confession statements was articulated by Lord Griffiths in Lam Chi-Ming v R as follows: Their Lordships are of the view that the more recent English cases established that the rejection of an improperly obtained confession is not dependent only upon possible unreliability but also upon the principle that a man cannot be compelled to incriminate himself and upon the importance that attaches in a civilized society to proper behaviour by police towards those in their custody.6 Thus the protections contemplated by PACE relative to the admissibility of confessions are three fold: to safeguard against the admissibility of unreliable confessions; to protect the accused person’s right against self-incrimination; and to protect the accused person from police impropriety. Although a judge following a voire dire (a trial outside the presence of the jury) may rule that the confession was obtained fairly and is thus admissible, the circumstances in which the confession was obtained may nevertheless be laid out before the jury. For instance, in Musthtaq the House of Lords ruled that a judge must instruct the jury that if, despite the judge’s admission of the confession, if they find that the confession was obtained oppressively or improperly, they are required to disregard it.7 It was also held in Wizzard v R. that the judge must instruct the jury to disregard a confession admitted into evidence if: There is a possibility that the jury may conclude that a statement was made by the defendant, that statement was true, but, the statement was, or may have been, induced by oppression.8 Thus the courts have expounded upon the protections articulated in PACE relative to the admissibility of a confession statement. The main purpose is to safeguard against an unfair and unjust outcome by protecting the accused’s right against self-incrimination, protect the accused against police impropriety and to safeguard against the admission of an unreliable statement. Building on the protection purposes implicit in PACE, Lord Steyn stated in Mitchell v R that the jury ought not to know that the admissibility of a confession statement was determined in a voire dire. As Lord Steyn noted: There is no logical reason why the jury should know about the decision of the judge. It is irrelevant to the consideration by the jury of the issues whether the confession was made and, if so, whether it is true. In modern English practice the judge’s decision after a voire dire is never revealed to the jury.9 Logic dictates that if the jury were aware that the judge previously ruled the confession admissible and therefore reliable, they will likely accept that the confession is admissible and reliable and not consider the facts for themselves. It is important for the jury to consider independent of any influence, the defendant’s argument that the confession was obtained improperly. As Lord Steyn noted it was imperative that such a “risk of prejudice” be avoided “in regard to a procedure designed to protect a defendant”.10 The court has also interpreted what amounts to oppression under PACE for the purpose of testing the admissibility of a confession. In Fulling the court did not rely on the Section 78 (6) of PACE which defines oppression as torture, inhuman or degrading treatment or threatening violence.11 Instead the court ruled that oppression would arise in circumstances where the police conducted the interrogation in ways that were entirely improper and represented an abuse of authority.12 In other words, while Section 78(6) of PACE speaks to conduct that will undoubtedly render a confession unreliable, the courts have expanded the meaning of oppression outside of the language used in Section 78(6) so as to contemplate circumstances in which police conduct is unacceptable during an interrogation that ends with a confession. The courts have also determined the interpretation of things said and done in obtaining a confession. The court came to the conclusion that although a defendant admitted to having confessed to a crime because he wanted to help the police and was anxious to be admitted to bail, the confession was properly admitted because PACE refers to things said and done by persons in authority. Thus things said and done by the person confessing would not be relevant for the purpose of determining whether or not a confession was voluntarily made and therefore reliable and admissible against the maker of the confession.13 At the end of the day, statutory boundaries relative to the admission of a confession statement are tested by virtue of the conduct of police and the impact that conduct likely has on the defendant at the time the confession was made. Question 2: David’s Confession The main issue is whether or not David’s confession statement is admissible pursuant to Section 76 of PACE.14 There are two statutory grounds under Section 76 of PACE for testing the reliability of a confession. Firstly, the trial judge may exclude a confession if it was obtained by virtue of oppression or if the statement as obtained by things said or done by persons in authority that would render the statement unreliable.15 By virtue of Section 76(8) torture is defined as including: Torture, inhuman or degrading treatment, and the use or threat of violence (whether or not amounting to torture).16 However, the court has ruled that oppression may include impropriety on the part of the interrogating officer or conduct that is reprehensible. For instance, in Emerson the interrogating police officer raised his voice at some point in the interrogation, used offensive language and was generally “discourteous” did not act oppressively.17 On the facts of the case, it would appear that DC Dim yells which is quite different from merely raising his voice and is extremely aggressive. This could be viewed as oppressive. For example in Paris, Abdullahi and Miller a suspect who was nearly mentally challenged was interviewed in a way that was characterised as bullish. The court came to the conclusion that the interrogation was not characterized by questioning, but was more of an exercise in shouting. Lord Taylor went on to state that: Short of physical violence, it is hard to conceive of a more hostile and intimidating approach by officers to a suspect.18 The court therefore ruled that the confession statement was wrongly admitted at the trial on the grounds of oppression.19 There are obvious parallels between David’s case and the Paris case. The only difference is that David is not “nearly” mentally handicapped. He is actually suffering from mental health problems for which he requires medication. Moreover, like the Paris case, the interrogating officer shouted as opposed to merely raised his voice. While the interrogator in the Paris case was described as bullish, the interrogator in David’s case was arguably more oppressive as he was described as extremely aggressive. The deprivation of food, although not deliberate, occurred nonetheless and is capable of amounted to oppression, particularly in light of Article 3 of the European Convention of Human Rights 1950 (ECHR) which prohibits torture, cruel, degrading and inhuman treatment.20 In Republic of Ireland v UK, the European Court of Human Rights considered the treatment of suspects and determined that a number acts including deprivation of food and drink were degrading and contravened Article 3 of the ECHR as they made the suspects feel vulnerable, hopeless and inferior, and essentially sapped them of their free will.21 Thus, the deprivation of food and medicine together with the shouting and aggressive behaviour during interrogations and denial of access to an attorney cumulatively constitute oppression and are arguably a contravention of Article 3 of the ECHR. As for things said and done, it would appear that the police was disingenuous in their claim that there were no solicitors available once David asked for access to one. It is nothing short of fanciful that no solicitors were available while police were interrogating David, but one was miraculously available the moment the police obtained a confession. Thus it is contended that the denial of a solicitor was deliberate. It has been held in R v Samuel that denial of a solicitor or delaying the suspect’s access to a solicitor can constitute oppression and can also constitute things said and done.22 Although police impropriety is generally required to substantiate either limb of Section 76 of PACE relative to the admissibility of a confession statement, there are times when police impropriety is not a necessary criterion. For example in Walker the suspect suffered from a personality disorder that the police were unaware of. Potter LJ held that although the police interrogation did not amount to impropriety, and thus was not oppressive or seen as putting pressure on the interviewee from the perspective of an ordinary individual with no mental impairment, they could have a different impact on a person with a personality disorder.23 David’s mental health problems were not obvious and therefore likely unknown to the police. However, based on the ruling in Walker, the lack of knowledge on the part of the police will not make a difference. Therefore based on the ruling in Walker, even if the police had acted properly, the mere fact that David has mental health issues requiring medication which he did not have access to, will render his confession unreliable. The ruling in R v Delaney is also instructive. In this case the defendant, a 17 year old, had a low IQ and was questioned without a solicitor. The only evidence against the defendant was her own confession. Based on evidence submitted by an educator, it was held that the defendant’s low IQ rendered her particularly vulnerable and she could not adequately cope with a police investigation and thus the confession was ruled inadmissible based on the circumstances in which it was obtained.24 David has a low IQ and together with his mental impairment, lack of food and medication and the fact that he is frightened and never been exposed to police custody makes him particularly vulnerable. Moreover, Section 77 of PACE defines a person with a mental handicap as having: ...a state of arrested or incomplete development of mind which includes significant impairment of intelligence and social functioning.25 Based on this definition, if the court is satisfied that the defendant is mentally handicapped, and the evidence against him is primarily confessional or wholly confessional and the confession was taken without a neutral party present, the court must caution the jury on the reliability of the confession, if admitted.26 Thus, even if David’s confession is admitted, it will have very little if any weight. Even so, given David’s mental health issues, the deprivation of medication and food, the aggressive nature of the interrogation and the fact that he was persuaded to confess and did so in response to that, it is highly likely that his confession will be inadmissible on the grounds of oppression and things said and done by persons in authority. Question 3: Hearsay Evidence Under the Criminal Evidence Act 2003 One of the greatest dangers associated with the admission of hearsay evidence is that the maker of the statement offered as hearsay is not usually available to testify and thus cannot be effectively cross-examined to test the veracity of the hearsay statement. In cases where hearsay evidence is admitted by virtue of documentary evidence, cross-examination is not possible at all.27 The most obvious danger with the admission of hearsay evidence is the high risk of distortion. When one party passed information to another and the recipient of that information testifies as to the information passed to him/her from another party, there is a heightened danger that the information originally received will be distorted either consciously or unconsciously.28 Moreover, it appears to be unfair to admit hearsay evidence when the maker of the statement would have made the statement without being under penalty of perjury and could have been untruthful. Thus to admit a hearsay statement as evidence of the truth of a disputed fact appears to have little merit. Thus the dangers of hearsay evidence underscore the rationale for the general rule against hearsay. The exceptions to the rule against hearsay are therefore calculated to ensure that the admission of hearsay evidence in pursuant to exceptions is justified. At common law there have been a number of rules relative to when exceptions to the rule against hearsay may be applicable. However, Section 114(1) of the Criminal Justice Act 2003 narrowed the exceptions down to four broad categories. They are as follows: (a) Any provision of this Chapter or any other statutory provision makes it admissible, (b) Any rule of law preserved by s. 118 makes it admissible, (c) All parties to the proceedings agree to it being admissible, or (d) The court is satisfied that it is in the interests of justice for it to be admissible.29 The first category of admissible hearsay evidence fall under Chapter 2 of Part II of the Criminal Justice Act 2003 and include statements made by an individual who is not available to testify; business statements and documentary evidence; specific inconsistent and previous statements made by a witness; statements that experts will use to base an opinion on30 and confession relative to an accomplice if the confession is admissible.31 A confession made by an accused person will not be admitted as an exception to the rule against hearsay if it is inadmissible pursuant to Section 76 of PACE.32 As for the rules preserved by Section 118 of the Criminal Justice Act 2003, the common law rules are abolished although most of them are retained and restated by Section 118.33 The exceptions to the hearsay rule pursuant to Section 118 of the Criminal Justice Act 2003 include statements contained in public documents, references, evidence proving the age of an individual, evidence proving reputation, statements forming the res gestae, mixed statements, confessions, admissions made by agents, and statements made by persons who are parties to a joint enterprise.34 The final two categories of exceptions to the hearsay rule are self-explanatory. If all the parties agree to the admission of hearsay evidence, then the defendant cannot complain of unfairness. The discretionary rules relative to exclusion of hearsay evidence contemplates situations arising where the judge may determine that refusing to admit the evidence will result in a miscarriage of justice. The Criminal Justice Act 2003 therefore seeks to ensure that relevant evidence which can only be established through hearsay evidence is admissible. However, the discretionary principle is calculated to ensure that the probative value of the evidence outweighs its prejudicial offence. Even so, the dangers of admitting hearsay evidence was tested in the case of R v Xhabri . In R v Xhabri it was argued that since under Section 114 a statement could be admitted by a person who is unavailable to testify, the defendant is denied the right to cross-examine witnesses against him and thus is denied the protection of Article 6 of ECHR. The Court ruled that Article 6 does not confer upon the defendant the absolute right to cross-examine every witness called against him. The main question for the court is whether or not the ends of justice require the admission of evidence as an exception to the rule against hearsay.35 Moreover, Section 114(3) of the Criminal Justice Act 2003 provides that: Nothing in this chapter affects the exclusion of evidence of a statement on grounds other than the fact that it is a statement not made in oral evidence in the proceedings.36 It therefore follows that if hearsay evidence can be excluded on the grounds that it is irrelevant or public policy, privilege or any other rule, it will be excluded even if it is admissible evidence. It can therefore be argued that the underlying purpose of judicial discretion is to ensure that the exceptions to the rule against hearsay are used appropriately and fairly. In the final analysis, the Criminal Justice Act 2003, essentially culls together the common law exceptions to the rule against hearsay and places them in one convenient place. While the Criminal Justice Act 2003 does not eliminate the dangers associated with the admission of hearsay evidence it does attempt to restrict the circumstances in which hearsay evidence can be admitted. The retention of judicial discretion is particularly important for safeguarding against the indiscriminate use of the exceptions to the rule against hearsay. The Criminal Justice Act 2003 recognizes that in many cases an important witness may die or be too ill to attend trial or may have become incapacitated. In such a case, it would be unfair to exclude that evidence on the grounds only that it would amount to hearsay. Thus the dangers of admitting hearsay evidence are weighed against the dangers of not admitting it into evidence. Likewise, allowing previous inconsistent statements are necessary for testing the credibility of a witness and if previous inconsistent statements were inadmissible on the grounds of hearsay, witnesses could freely alter their evidence as they see fit. Question 4: Character Evidence: Assertions and Imputations A. Anil’s Assertion of Good Character When the accused has no previous criminal convictions, this is generally accepted as good character evidence under English law.37 The rule of law developed at common law permits a defendant to offer general evidence of his good character to demonstrate that credibility or propensity not to commit the crime for which he/she is charged.38 Thus logic dictates that if the defendant does not have antecedents then it can be assumed that he/she is less likely to have committed the crime or crimes that he/she is accused of. However, the weight of good character evidence in terms of having no previous convictions would depend on the defendant’s age. A very young defendant can be expected to have no previous convictions. With a much older defendant with no previous convictions would carry considerably more weight in assessing the propensity to commit an offence. It is not known how old Anil is, thus the weight of his assertions of good character in that he has no previous convictions are not known. Even so, it will have some weight and it is particularly important since he can prove that his assertions are not false by virtue of the fact that he has no previous convictions. This is important because, had he falsely asserted good character it would open the door for the prosecution to cross examine him and/or call witnesses to reveal Anil’s false assertions. In this regard Section 101 of the Criminal Justice Act 2003 is important. By virtue of Section 101(1)(f) of the 2003 Act, the prosecution may introduce evidence of bad character to rebut evidence offered by a defendant to creating a false impression.39 Therefore, Anil’s assertion that he has never been in trouble before would have become an issue if he had previous convictions of any kind. This would have been a false assertion and if it goes unchallenged it would leave the jury with a false impression. However, since Anil has no previous convictions, the prosecution will not be able to contradict Anil’s good character assertion. B. Sunil’s Imputations and Assertions of Good Character When a defendant attacks the character of a prosecution witness, he or she opens the door for the prosecution to offer evidence of the defendant’s bad character.40 This is particularly problematic for Sunil since he accuses the arresting officer of being a liar and being corrupt. Thus, Sunil creates an issue of character evidence between himself and the prosecution. Pursuant to Section101(1)(g) of the Criminal Justice Act 2003, Sunil has now entered the gateway permitting the prosecution to introduce evidence of Sunil’s bad character. Sunil has previous convictions, although minor in character compared to grievous bodily harm for which he is currently charged, they are similar in character as they demonstrate a propensity toward aggressive behaviour. In R v Highton and Others it was held that admission of bad character under Section 101of the Criminal Justice Act 2003, can be used to either discredit the defendant or be used to demonstrate propensity to commit the offence for which he is tried.41 Much depended on the Section 101 provision that opened the door to the admission of the evidence. It would appear that Sunil in his testimony is asserting generally that he did not have the propensity to commit the crime that he is currently on trial for. This is evidenced by his assertion that he would never hurt a fly and that he is an extremely placid person. The assertion is not so much that he is of good character and capable of belief, but that he does not have the propensity to commit the crime for which he is currently charged. Thus when taken together with his imputations against the arresting officer’s character, the court is at liberty to assume that Sunil is both attacking the credibility of the prosecution’s claim and his propensity to commit the crime in question. Had Sunil merely cast aspersions on the arresting officer’s character he might have been able to benefit from the ruling in R v Edwards (Karl) and Others [2006] 1 Cr App R 3 in which it was held that casting aspersions on another would not generally be relevant to the issue of propensity.42 Unfortunately, the assertion of good character raises the question of leaving the jury with a false impression and thus the prosecution is at liberty to put Sunil’s previous convictions before the jury pursuant to Section 101(1)(f) of the Criminal Justice Act 2003. This is very unfortunate for Sunil since he wanted to keep his previous convictions concealed. The only way to avoid having his previous convictions kept from the jury would have been to avoid making assertions of his own good character and to avoid imputations against the characters of others, particularly prosecution witnesses. In Highton, the defendant’s previous convictions were admitted in evidence because he had cast aspersions on the reputation of another. Thus Section 101(1)(g) of the Criminal Justice Act 2003 arose. The Court of Appeal upheld the trial judge’s decision to admit the defendant’s previous convictions into evidence and to give the jury a direction essentially allowing them to treat the previous convictions as propensity evidence. The defendant was tried for kidnapping, robbery and theft and the previous convictions were used to demonstrate the defendant’s propensity for violence and dishonesty.43 Sunil’s previous convictions are arguably evidence of a path or pattern toward grievous bodily harm. He had been previously convicted of a number public order offences and assaults. Thus arguably, Sunil has a history of violence or at the very least aggressive behaviour. It therefore follows that based on the provisions of the Criminal Justice Act 2003, in particular Section 101, and the courts’ interpretation of Section 101, Sunil will not be able to avoid having his previous convictions revealed to the jury. Sunil will now have to face the consequences of asserting his good character to the extent that he has made false assertions and impugning the character of another, more specifically, a witness for the prosecution. Question 5: Nazir: Expert Testimony as an Exception to the Rule Against Hearsay A. Dr. Crippen’s Evidence The evidence of Dr. Crippen is hearsay relative to the victim’s state of mind. In general hearsay evidence relative to the victim’s state of mind is irrelevant and therefore inadmissible hearsay. However, where it is relevant for proving the victim’s state of mind, it will be admitted pursuant to the state of mind exception to the rule against hearsay.44 The witness or more particularly, the victim’s state of mind may be relevant if the prosecution seeks to prove that the victim was robbed by the defendant in a way that put him or her in fear of his/her life, or was threatened or forced to do something against his or her will. In such cases the evidence of the victim’s state of mind via another witness would be admissible as an exception to the rule against hearsay.45 On the facts of the case for discussion, the charge is burglary, and the facts do not reveal whether or not the victim was present or came into contact with the perpetrators. It is therefore not known whether or not the victim was present. Therefore, assuming that the victim’s state of mind at the time of the burglary is not relevant for establishing the elements of the offence, it is inadmissible hearsay. Some guidance is found in the case of Thomas v Connell. In Thomas it was held that evidence of a witnesses or other relevant person’s state of mind must be evidence of a contemporaneous mental state or emotion at the material time and only admissible if it is an issue or relevant to an issue and not as evidence of some other fact.46 In the case for discussion, the victim’s state of mind does not appear to be an issue. Moreover, it does not appear that here state of mind relates to the actual burglary, but rather to the fact that she suffered theft which is a consequence of the burglary. Thus the victim’s evidence appears to be more relevant as a victim impact statement at the sentencing stage and not relevant to the issue of responsibility for the burglary and the fact that the burglary took place. B. Tarquin Smith’s Opinion Evidence Tarquin Smith has not direct knowledge of the antiques reportedly stolen during the course of the burglary. Thus by calling him, the prosecution will be seeking to offer his evidence as an opinion. Opinion evidence is generally inadmissible unless the witness giving his/her opinion is doing so on the basis that he/she is an expert in the field in which he/she is offering an opinion.47 The main question is therefore whether or not, Smith is an expert in antiques and whether or not he has sufficient evidence of the antiques allegedly stolen from the victim’s home to make a comparison with a reasonable degree of certainty. Presumably the description of the antiques were provided to him by the victim with supporting documents evidencing what they are and so on. The supporting documents may be receipts of purchase or certificates of insurance or some other document describing the antiques. This kind of evidence and the victim’s description of the antiques are statements that are admissible as exceptions to the hearsay rule under Ch.II Part II of the Criminal Justice Act 2003.48 In this regard, these statements may be relied on by experts to render an opinion. The main question however, is whether or not Smith is an expert. The court will have to be satisfied that Smith is an expert and not necessarily concerned with how he gained the expertise. In this regard, expertise can be obtained via training, study or experience, provided there is sufficient evidence that witness has gained what can be characterized as a special skill in the field.49 However, it is doubtful that Smith qualifies as an expert as there is no evidence that he has any particular skills and knowledge in the area of antiques. The facts of the case suggest that Smith operates a stall in the local market in which he sells ornaments and gifts. Thus his evidence if offered will be opinion evidence and inadmissible. C. PC Gotcha’s Expert Evidence PC Gotcha will likely qualify as an expert as his twenty years’ experience with CCTV is sufficient to qualify him as skilled in the field of CCTV readings and interpretations.50 Moreover, the images recorded by the CCTV will likely be admitted as real evidence as opposed to hearsay evidence. In R v Governor of Brixton Prison and Another, ex parte Levin, the House of Lords ruled that a document of any type is produced without human intervention, or does not require the human hand or mind to produce, they will be regarded as real evidence.51 Moreover it was held in Taylor v Chief Constable of Cheshire that mechanically generated evidence such as photographs and CCTV images are not hearsay but rather are to be treated as real evidence.52 This would include images produced in the absence of human agency.53 In fact mechanically generated recordings are not included in the statutory definition of hearsay under Section 115 (2) of the Criminal Justice Act 2003. Therefore in all the circumstances, the prosecution is at liberty to call PC Gotcha as an expert witness skilled or experienced in the field of CCTV interpretations and readings. Moreover, the images recorded by the CCTV were automatic or mechanically generated material and as such is regarded as real evidence as opposed to hearsay evidence. This contention is supported by a long history of English case law and is now codified by Section 115(2) of the Criminal Evidence Act 2003. As such, the images generated by the CCTV putting Nazir at the scene of the crime on the night of the burglary is admissible as real evidence and will likely be admitted in favour of the prosecution. Nazir does not appear to have any real basis for challenging the admissibility of the CCTV footage and PC Gotcha’s presentation of it. Bibliography Textbooks Murphy, P. Murphy on Evidence. (Oxford, UK: Oxford University Press, 2007). Tapper, C. Cross and Tapper on Evidence. (Oxford, UK: Oxford University Press, 2007). Articles/Journals Cases Emerson [1990] 92 Cr. App R 284. Fulling [1987] QB 426. Goldberg [1988] 88 Cr. App R 285. Lam Chi-Ming v R [1991] 2 AC 212. Minors [1989] 1 WLR 442. Mitchell v R [1998] AC 695. Musthtaq [2005] 1 WLR 1513. Paris, Abdullahi and Miller [1992] 97 Cr App R 99. Republic of Ireland v UK [1978] 2 EHHR 25. R v Aziz [1955] 3 WLR 52. R v Blastland [1986] AC 41. R v Delaney [1988] 86 CR App R 18. R v Governor of Brixton Prison and Another, ex parte Levin [1996] 3 WLR 117. R v Highton and Others [2005] 1 WLR 3472. R v Samuel [1988] 1 QB 615. R v Silverlock [1894] 2 QB 766. R v Xhabri [2006] 1 All ER 776. Sharp [1988] 1 WLR 7. Taylor v Chief Constable of Cheshire [1986] 1 WLR 1479. Thomas v Connell [1838]4 M&W 267. Walker [1998] Crim LR 211. Wizzard v R. [2007] UKPC 21. Statutes Criminal Justice Act 2003. European Convention of Human Rights 1950. Police and Criminal Evidence Act 1984. Read More