No CrossRef data available.
Article contents
Confessions as Proof of Innocence
Published online by Cambridge University Press: 09 November 2009
Extract
In recent years, a number of criminal cases have been reported in which defendants have sought to rely upon the confessions of their co-defendants as proof of their own innocence. The co-defendant may perhaps have admitted that he alone was responsible, or that he and some third party were responsible. His confession may have been made to the police or to some other person. In one case, the father of a girl charged with robbery covertly tape-recorded admissions made to him by one of her two co-defendants. These admissions were damning to that co-defendant, but tended to exonerate the girl.
- Type
- Articles
- Information
- Copyright
- Copyright © Cambridge Law Journal and Contributors 1998
References
1 R. v. Campbell and Williams [1993] Crim.L.R. 448 (p. 154, below). Cases may arise in which one defendant has personally recorded another defendant's admissions by such means. The principles involved would be the same.
2 The general rule is that the prosecution cannot be compelled to lead evidence in their possession. Such evidence must, however, be disclosed to the defence if it undermines the prosecution's case.
3 [1997] 3 W.L.R. 552.
4 This is no longer true in civil cases: Civil Evidence Act 1995, s. 1.
5 See for example Criminal Law Revision Committee. 11th Report, Evidence (General), Cmnd. 4991 (1972) at para. 53; and see also R. v. Myers, per Lord Hope at p. 569.
6 Smith, J.C., “Exculpatory Statements and Confessions” [1995] Crim.L.R. 280.Google Scholar
7 R. v. Turner (Bryan) (1975) 61 Cr.App.R. 67; R. v. Blastland [1986] A.C. 41; R. v. Callan (1993) 98 Cr.App.R. 467.
8 R. v. Lake (1977) 64 Cr.App.R. 172.
9 Basic Problems of Evidence (1962) p. 266. (cited by Smith, op. cil., at p. 282).
10 See cases cited at note 7 above.
11 The common law rules governing vicarious admissions, such as those made by the directors of a defendant company, or informal admissions made by a defendant's legal representatives, appear to remain unaffected by section 76, which applies only to admissions made by the defendant himself.
12 The same is true of the common law discretion preserved by section 82(3) of the 1984 Act. See Lobban v. The Queen [1995] 1 W.L.R. 877 (p. 150, below).
13 Often referred to (even today) as “Lord Denman's Act”.
14 Where a third party has allegedly confessed to the crime with which the defendant is now charged, but is not called as a witness for the prosecution, the defence may wish to call him themselves, but it seems that they would not be permitted to call him solely with a view to having him cross-examined as a hostile witness. See R. v. Blastiand [1986] A.C. 41.
15 But, as the trial judge noted in R. v. Myers, it may be impossible for a jury to distinguish between a confession which is evidence of the facts admitted, and a previous inconsistent statement, which is supposedly relevant only to the credibility of the defendant who denies the matters he once admitted.
16 R. v. Treacy [1944] 2 All E.R. 229; Wong Kam-Ming v. R. [1980] A.C. 247, 258.
17 R. v. Rowson [1986] Q.B. 174; Lui Mei-Lin v. R. [1989] 1 A.C. 288.
18 See Murdoch v. Taylor [1965] A.C. 574.
19 [1995] l W.L.R. 877, per Lord Steyn at p. 887 (citing Adrian, Keane, The Modern Law of Evidence, 3rd ed. at p. 36Google Scholar).
20 See for example R. v. Beckford and Daley [1991] Crim.L.R. 833. in which Watkins L.J. stated that the hearsay rule could sometimes have the effect of obscuring or even shielding the truth. Whether that was its effect in Beckford and Daley itself is open to argument. See below, p. 152.
21 [1991] Crim.L.R. 833.
22 Andrews, and Hirst, . Criminal Evidence (1st ed., 1987) at para. 19.28Google Scholar; M. Hirst and J.C. Smith [1989] Crim.L.R. 603; Zander, M., The Police and Criminal Evidence Act 1984 (2nd ed., 1990) at p. 188Google Scholar; D.W. Elliott [1991] Crim.L.R. 5 (at pp. 9–10); Tunkel [1991] Crim.L.R. 396.
23 Correia had not been granted access to legal advice when he made the admissions in question.
24 [1986] Q.B. 174.
25 But see the critical note struck by the editors of Archbold 1995 at pp. 11–14.
26 The common law rule was preserved by section 9(2)(a) of the Civil Evidence Act 1968. It became otiose following the abolition of the hearsay rule in civil proceedings by the Civil Evidence Act 1995.
27 [1994] Crim.L.R. 198 at p. 200.
28 Professor Smith's emphasis.
29 [1993] Crim.L.R. 448. R. v. Beckford and Daley was considered by the Court of Appeal in R. v. Marviadi and Ghanchi [1992] Crim.L.R. 733 and acknowledged to be binding authority on the interpretation of section 76, but the latter case did not ultimately turn on confession evidence.
30 C admitted in evidence that he had intended to lie about what had happened.
31 C and W still denied the robbery, but their revised story, according to which the rings had “fallen off” V's fingers and V had then permitted C and W to keep them, does not appear to have impressed the jury.
32 The phrase is taken from Professor Birch's commentary on R. v. Campbell and Williams [1993] Crim.L.R. at p. 453; but given that the appeal in Beckford was allowed on other grounds, is it perhaps arguable that this “earlier decision” was nothing more than earlier obiter dicta?
33 Although R. v. Campbell and Williams is reported only in summary form, this passage from Hobhouse J.‘s judgment in that case is quoted by Lord Slynn in R. v. Myers [1997] 3 W.L.R. 552 at p. 558.
34 At common law, a confession was “involuntary”, and thus inadmissible, if procured by inducements (i.e. threats or promises) from persons in authority or by oppression.
35 [1994] Crim.L.R. 198, at p. 201. See also Diane Birch's commentary to the Court of Appeal's decision in R. v. Myers [1996] Crim.L.R. 735 at p. 737.
36 Lord Hope, in Myers, also interprets references to “voluntary confessions” and “confessions admissible under section 76(2)” to be different ways of saying the same thing ([1997] 3 W.L.R. at p. 572).
37 In contrast to the position where a defendant seeks to cross-examine his co-defendant as to a confession which is also a previous inconsistent statement under the Criminal Procedure Act 1865.
38 (1993) 98 Cr.App.R. 467.
39 As in R. v. Blastland or R. v. Turner (note 7 above).
40 Although this conflict is discussed in some detail by Sir John Smith in his commentary to that case ([1994] Crim.L.R. 198 at pp. 199–202).
41 [1997] 3 W.L.R. 552.
42 His lordship must presumably mean, “that subsection”. He cannot mean to say that section 76 as a whole is inapplicable, if only because in a later passage he expressly leaves open the question whether section 76(1) applies.
43 [1997] 3 W.L.R. at p. 558.
44 Ibid., at p. 563.
45 Ibid.
46 Ibid., at p. 564.
47 Ibid.
48 See p. 152, above.
49 As previously explained, section 76(2) does not permit any party other than the prosecution to discharge the burden of proof it imposes.
50 i.e., where the confession is inadmissible as prosecution evidence by virtue of section 76(2).
51 [1997] 3 W.L.R. at p. 571.
52 Ibid., at p. 572.
53 R. v. Biastland (above).
54 My emphasis.
55 If only to avoid giving the police any incentive to adopt such measures. That argument becomes less compelling in respect of confessions which are inadmissible under section 76(2)(b).
56 This follows from R. v. Biastland, although few commentators have ever managed to understand how the disputed evidence in Biastland could possibly have been classed as irrelevant.
57 See for example Professor Diane Birch's commentary on the Court of Appeal's judgment in Myers [1996] Crim.L.R. 735 at p. 737.
58 Evidence in Criminal Proceedings: Hearsay and Related Topics, Law Com. No. 245 (1997) para. 8.95; Draft Criminal Evidence Bill, clause 17.
59 Cf. R. v. Callan (1993) 98 Cr.App.R. 467.
60 Law Com. No. 245, at para. 8.99.
61 At para. 8.141 and in Clause 9 of the Draft Criminal Evidence Bill.
62 See the last of the three examples given by the Law Commission at para. 8.147:
“D is charged with assault. X, who is not charged, admits to a friend that he, X, committed the assault. D and X are similar in appearance. X's confession is inadmissible hearsay unless the safety valve is used.”