The Law on the Admissibility of Confession Evidence - Term Paper Example

How far do you think the law on the admissibility of confession evidence and evidence obtained by entrapment strikes a fair balance between the rights of the suspect and the needs of the prosecution? Introduction In order to be able to comment on the balance between the rights of the suspect and the needs of the prosecution with regard to the admissibility of confession evidence and evidence obtained by entrapment, it is necessary to examine how confession evidence can be used, as well as examining case law were this was allowed or disallowed. It is also necessary to consider cases in which entrapment has been averred, and examine the decisions of the courts in these cases in order to determine the circumstances in which the courts have either accepted or rejected the allegation of entrapment. Admissibility of confessions In order to determine whether a confession by the accused can be admissible the courts need to examine the circumstances and conditions under which the confession was made. S76, 76a and 77 of the Police and Criminal Evidence Act 1984 lays down the criteria needed to be met in order for the confession to be regarded as admissible. S76 specifically states that confessions should only be adduced at court if the confession is relevant to the matter at hand. This section goes on to start that if the accused alleges that the confession has been obtained through oppression then the confession would be deemed to be inadmissible by the courts1. Oppression was not accepted by the courts in R v Pham [2009]2, in which the accused alleged that the admissions he had made concerning his conspiracy to produce cannabis were untrue, and that he had made these confessions under oppression fearful that he was going to be a suspect in the murder if he did not. The court in this case instructed the jury that the confession should only be disregarded if they believed it to be untrue given the circumstances under which it was made. The jury determined the confession to be true despite the allegation of oppression. Similarly in R v Khyam [2008]3 the court accepted that the treatment that the defendant had been submitted to in Pakistan would have amounted to oppression as he had been tortured and ill treated in custody. However, as no reference was made to his confession in Pakistan when he was interviewed in the UK the court refused to accept that the accused was being subjected to oppression when he made his confession in the UK. In the case of R v Mushtaq [2005]4 the appeal was dismissed, however, the judges were reminded of the need to adhere to s76(2) of PACE 1984 when giving directions to the jury with regard to the admissibility of confessions. In this case the defendant was attempting to have his conviction quashed on the grounds that the judge in the original hearing had instructed the jury that, in relation to the confession ‘if…you are sure that it is true, you may rely upon it, even if it was, or may have been, made as a result of oppression or other improper circumstances.’ The counsel for the accused argued that this amounted to a direct breach of PACE and therefore the judge had erred in not instructing the jury correctly. The conviction was saved merely by the fact that the judge had earlier told the jury that they must firstly decide whether the statement was given freely and voluntarily. The House of Lords concluded that this instruction was sufficient to allow the jury to determine whether the statement had been obtained by oppression. A further occasion in which confessions might not be admissible would be were confessions had been made whilst the accused was not being formally interviewed. In HM Advocate v Mowat 20015 the judge concluded that, despite admissions being made whilst the defendant was not being formally interviewed, these could still be adduced as evidence. The judge stated that there was no evidence of any oppression being used by the officers questioning the accused, and the delays in answering the questions was not due to any duress of the accused, but as a result of the accused taking time to consider the impact on his girlfriend if he failed to admit his involvement in the offence. Similarly in R v Bhambra [2008]6 the court refused to rule the confession as inadmissible, despite the fact that the confession had been made whilst the accused was not being formally interviewed. In this case the defence counsel was averring that the police had breached s76 of PACE which states ‘following a decision to arrest a suspect he must not be interviewed about the relevant offence except at a police station or other authorised place of detention.’ The court, whilst accepting that the police had been wrong to question the accused in this manner, made the observation that there had been no pressure exerted on the accused to make the confession. The court also stated that, as the accused had repeated his confession shortly afterwards in a recorded interview, he could not argue that his original confession was adduced under oppression, as his subsequent confession was clearly voluntary. The courts have also had difficulty in dealing with confessions made in circumstances were the accused is mentally unfit to make such a confession. The rights of such individuals are protected by s77 of PACE. Under this section, a confession will be ruled as inadmissible if the Court is satisfied (i) that he is mentally handicapped; and (ii) that the confession was not made in the presence of an independent person. In R v S 20007 the court refused to accept that the defendant was suffering from a condition that impaired his mental capacity, and therefore allowed the confession to be disclosed to the jury. Similarly in Blagojevic v HM Advocate 19958 the court held that there had been no indication at any point in the trial that the accused was vulnerable or suffering from impairment which could be used to show that her confession should be considered to be unreliable. By contrast in R v McKenzie [1993]9 the court accepted that the accused was clearly suffering from some form of mental incapacity and ordered the quashing of his convictions in relation to the murders he had confessed to. The convictions for arson were allowed to remain as these confessions had been supported by evidence supplied by witnesses who had seen the accused lighting the fire. Entrapment One of the first cases to raise the issue of entrapment was the case of R v Sang10, in which the defendant had been charged with conspiring to issue counterfeit American bank notes. It was the assertion of the defendant that the police had instructed someone to induce him into committing the offence. He averred that he would not have committed the offence but for the inducement. Lord Diplock refused to accept the proposal made by the defence counsel stating Save with regard to admissions and confessions and generally with regard to evidence obtained from the accused after the commission of the offence, a trial judge has no discretion to refuse to admit relevant admissible evidence of the offence on the ground that it was obtained by improper or unfair means11. The court is not concerned with how it was obtained12. It is no ground for the exercise of discretion to exclude that the evidence was obtained as the result of the activities of an agent provocateur. Under Pace s78 evidence can be excluded for being unfair. Under this section the courts may refuse to allow evidence on which the prosecution are seeking to rely if it appears to the court that the evidence was gained in a manner which could be deemed to be unfair. The inclusion of s78 had a profound impact on the case of R v Smurthwaite13 in which the court held that s78 (1) suggested that there might be some circumstances where evidence gleaned from an agent provocateur should be excluded14. One of the most often cited cases in relation to entrapment is R v Looseley15. In this case the accused was persuaded by undercover police officers to get drugs for them. Lord Nicholls, agreeing with the defence, stated ‘it is simply not acceptable that the state through its agents should lure its citizens into committing acts forbidden by the law and then seek to prosecute them for doing so. That would be entrapment16’. Entrapment was also an issue in the investigation of the murder of Rachel Nickell in 1992. The Metropolitan police, in this case, were convinced that Colin Stagg was responsible for the murder based on the fact that he was known to walk his dog on the common where the victim was killed. A criminal psychologist also concluded that Stagg fitted the profile and a covert operation was put into place in which an undercover policewoman contacted the suspect attempting to get information from him by pretending to be interested in having a relationship with him. The officer managed to get him to talk about his violent fantasises, but was unable to obtain a confession to the murder. Despite this, the case proceeded to trial based on the offender profile, and the violent fantasies as well as the fact that he frequently walked his dog in this area. When the undercover plot was discovered Stagg was acquitted and awarded compensation. Using the above as a guideline it is likely that confessions obtained in such a way would be regarded as inadmissible17 under s78 of PACE. A fair balance From the above, it would appear that the balance between the rights of the suspect and the needs of the prosecution are not very fairly balanced. This can be evidenced by the fact that the judge has been given the power to exercise discretion in determining whether the confession should be regarded as admissible or not. In many of the cases mentioned above, the judge has allowed the confession to be laid before the court, despite the assertions by the defence that the confessions have been improperly obtained. Indeed, in some instances, the judges have directly instructed the jury that they are entitled to regard the confession as true, even if there is evidence to suggest that the confession was obtained under oppression as can be seen in Mushtaq, mentioned above. There are significantly more cases in which the courts have allowed the confession to stand then cases in which the confession has been withheld from the jury. This seems to suggest that preferential treatment has been given to ensuring the needs of the prosecution take higher priority to the rights of the suspect. Despite the perceived protection offered by PACE, there are many occasions in which the judges have refused to find that the confession was obtained under oppression. This reinforces the notion that the courts tend to favour the prosecution over the suspect. In relation to entrapment, the judges do tend to give preference to the suspect, as can be seen in the cases listed above. However, the decision as to whether the confession should be adduced is left with the judge to decide, and there are very few instances in which an appeal has succeeded based on the fact that the judge had erred in allowing the confession to be adduced. Conclusion From this study the conclusion that can be drawn is that the admissibility of confessions is more likely to be successfully challenged where the suspect can prove that the confession was obtained through entrapment. Where the accused is asserting oppression, or relying on the provisions of s76 and s77 of PACE, case law seems to suggest that the needs of the prosecution will prevail over the rights of the suspect. All of the above, therefore, seems to indicate that in many cases the prosecution needs will be paramount in the hearing, as the amount of times in which entrapment can be averred is significantly less to the number of occasions in which the suspect is likely to aver that the confession has been improperly obtained. 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