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. In fulfilling their distinct functions, both the judge and the jury, must recognise the need to ensure that the accused receives a fair trial but that does not require the jury to take upon themselves functions that the law properly entrusts to the judge. Provided each fulfils its role the accused will receive a fair trial.

If, in a case where the only evidence against a defendant was his oral confession which he had later retracted, it appeared that such confession was obtained in breach of the rules prevailing at the time and in circumstances which denied the defendant important safeguards later thought necessary to avoid the risk of a miscarriage of justice, there would be at least prima facie grounds for doubting the safety of the conviction —a very different thing from concluding that a defendant was necessarily innocent.

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.

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. That power gave a trial judge a discretion as to whether solely in the interests of the fairness of a trial he would permit the prosecution to introduce admissible evidence sought to be relied upon, especially that of a confession or an admission. That being so, we now return to the circumstances of the present case.

We find it hard to envisage any circumstances in which such oppression would not entail some impropriety on the part of the interrogator. We do not think that the Judge was wrong in using that test. What however is abundantly clear is that a confession may be invalidated under section 76(2)(b) where there is no suspicion of impropriety. No reliance was placed on the words of section 76(2)(b) either before the Judge at trial or before this Court.