Confession Evidence in UK Law

In a criminal trial, it is the court acting collectively that has the shared responsibility of ensuring a fair trial. The judge and the jury are, by the system employed, given distinct functions to perform which will collectively protect the rights of the person standing trial.

In my view, therefore, the logic of section 76(2) of PACE really requires that the jury should be directed that, if they consider that the confession was, or may have been, obtained by oppression or in consequence of anything said or done which was likely to render it unreliable, they should disregard it.

Whenever the admissibility of a confession is challenged, it is wise that the presiding Judge should, if the phrase may be allowed, keep his options open and in most cases a trial within a trial should ensue.

In an address to the Bentham Club in 1968, Lord MacDermott described "oppressive questioning" as "questioning which by its nature, duration, or other attendant circumstances (including the fact of custody) excites hopes (such as the hope of release) or fears, or so affects the mind of the subject that his will crumbles and he speaks when otherwise he would have stayed silent".

In our judgment on a proper construction of it the word "evidence" includes all the evidence which may be introduced by the prosecution into a trial. Thus it is that regardless as to whether the admissibility of a confession falls to be considered under section 76(2), a trial judge has a discretion to deal with the admissibility of a confession under section 78 which, in our opinion, does no more than to re-state the power which judges had at common law before the Act of 1984 was passed.

There has long been an obligation on judges to warn a jury about the special need for caution in cases which are analogous to those of accomplices. These include cases where the witness's evidence may have been tainted by an improper motive: R v Spenser [1987] AC 128, 134E per Lord Hailsham LC; Archbold 2002, paras 4-404m, 4-404o.

The indications that the evidence may be tainted by an improper motive must be found in the evidence. Where such indications are present, the judge should draw the jury's attention to these indications and their possible significance. He should then advise them to be cautious before accepting the prisoner's evidence.