Confessions and the Criminal Justice Act 2003
| Author | Joanne Clough,Michael Stockdale |
| Published date | 01 June 2013 |
| Date | 01 June 2013 |
| DOI | http://doi.org/10.1350/jcla.2013.77.3.842 |
| Subject Matter | Article |
Confessions and the Criminal
Justice Act 2003
Michael Stockdale* and Joanne Clough†
Abstract
The admissibility of hearsay evidence in criminal proceedings in
England and Wales is now governed by provisions of the Criminal Justice
Act 2003, a result of Law Commission reform proposals. The Law Com-
mission’s Report left several issues concerning the admissibility of confes-
sions in the context of its proposed hearsay regime unclear, some of which
have not yet been clarified by the post-2003 Act jurisprudence. In particu-
lar, whilst the authorities have established that confessions made by third
parties may be admissible in exceptional circumstances, the courts have
not yet engaged with s. 128(2) of the 2003 Act which limits the extent to
which confessions made by defendants may be admissible under the 2003
Act’s provisions. Moreover, whilst the Court of Appeal has recognised
both that certain confessions may exist outside the 2003 Act’s statutory
framework and that the admissibility of such a confession for the prosecu-
tion when made by a defendant is governed by s. 76 of the Police and
Criminal Evidence Act 1984, other issues concerning the admissibility of
such confessions have not yet been resolved.
Keywords
Confessions; Admissibility; Hearsay; Law Commission
The Law Commission’s Report, Evidence in Criminal Proceedings: Hearsay
and Related Topics,1 the recommendations in which form the basis of the
hearsay regime introduced by Chapter 2 of Part 11 of the Criminal
Justice Act 2003, does not deal at length with the subject of confessions.
The Law Commission largely intended to preserve the rules and provi-
sions that had previously governed the admissibility of confessions, only
intending to modify the pre-existing regime by making express statutory
provision concerning admission of a defendant’s confession as evidence
for a co-defendant and by permitting the admission of confessions made
by third parties. The purpose of this article is to consider both the extent
to which the Law Commission’s recommendations concerning the ad-
missibility of confessions in criminal proceedings under its new hearsay
regime have been reflected by the approach of the criminal courts in
applying the hearsay provisions of the 2003 Act and whether there are
any lacunae in the relationship between the provisions of the Police and
Criminal Evidence Act 1984 which govern the admissibility of confes-
sions made by defendants and the hearsay provisions of the 2003 Act
which the courts have yet to fill.
* Director of the Centre for Criminal and Civil Evidence and Procedure, School of
Law, Northumbria University; e-mail: m.w.stockdale@northumbria.ac.uk.
† Programme Leader LLB Open Learning, School of Law, Northumbria University;
e-mail: joanne.clough@northumbria.ac.uk.
1 Law Commission, Law Com. Report No. 245 (1997).
The Journal of Criminal Law (2013) 77 JCL 231–254
231
doi:10.1350/jcla.2013.77.3.842
The Journal of Criminal Law
The Law Commission’s recommendations
The Law Commission proposed that admissions and confessions would
fall within one of three categories of automatically admissible hearsay
evidence,2 the rationale for the automatic admissibility of confessions
being: ‘. . . the general assumption that what a person says against his or
her own interests is likely to be true’.3 Admissibility would, however, be
‘subject to the existing statutory safeguards’.4 Thus, the Law Commis-
sion, having initially proposed in its Consultation Paper that
confessions should continue to be admissible against their makers, subject
to section 76 of PACE and the discretions at common law and under section
78(1) of PACE to exclude prosecution evidence,5
finally recommended, in line with this original proposal, that: ‘the
current law be preserved in respect of admissions, confessions, mixed
statements, and evidence of reaction’.6
So far as those circumstances in which a co-defendant wishes to
adduce evidence of the defendant’s confession are concerned,7 the Law
Commission recommended the enactment of s. 76A of the Police and
Criminal Evidence Act 1984 on the basis that:
. . . the admissibility of a confession by one co-accused at the instance of
another should be governed by provisions similar to section 76 of PACE,
but taking into account the standard of proof applicable to a defendant.8
In relation to the operation of this provision, the Law Commission
indicated that:
Where a confession is admitted against one accused on behalf of a co-
accused, the fact-finders may consider the admission as exonerating the
defendant who did not make it, but may not take it as evidence against the
defendant who made it. A hearsay admission is still evidence only against
the person who made it, and a jury must be warned accordingly. A number
of our respondents thought it extremely important that this principle be
retained, and we agree.9
The first sentence of this quotation demonstrates that the Law Commis-
sion envisaged that where a confession made by a defendant is admitted
for a co-defendant under s. 76A the confession would not be evidence
against its maker. Thus, Durston’s reading of the Law Commission’s
proposals was that:
2 The others two automatic admissibility categories relating to unavailable witnesses
(see, now, s. 116 of the Criminal Justice Act 2003) and to reliable hearsay (see,
now, e.g., s. 117 and s. 118(1)(a) of the 2003 Act).
3 Law Commission, above n. 1 at para. 1.38.
4 Ibid.
5 Ibid. at para. 8.90.
6 Ibid. at para. 8.92. Similarly, in its Consultation Paper, Hearsay in Civil and Criminal
Cases, Law Reform Com. of Ireland Consultation Paper No. 60 (2010), the Law
Reform Commission of Ireland provisionally recommended at para. 3.51 that the
inclusionary exception to the hearsay rule relating to admissions and confessions
which exists in Irish Law should be retained.
7 For the position prior to s. 76A of the Criminal Justice Act 2003 coming into force
(but subsequent to the Law Commission’s Report) see the decision of the House of
Lords in R v Myers [1998] AC 124.
8 Law Commission, above n. 1 at para. 8.95.
9 Ibid. at para. 8.96.
232
Confessions and the Criminal Justice Act 2003
. . . the Law Commission was adamant that, where a confession was
admitted on behalf of a co-accused, but not the Crown, the tribunal of fact
should only consider the admission as exonerating the co-defendant and
not as evidence against its maker.10
The second and third sentences of the above quotation from the Law
Commission’s Report indicate that the Law Commission intended to
preserve ‘. . . the universal rule which excludes out of court admissions
being used to provide evidence against a co-accused, whether indicted
jointly or separately’.11 Whilst these sentences appear under the heading
‘Confessions and co-defendants’, they suggest that the Law Commis-
sion’s intention was to preserve this rule as a rule that applied to
confessions in general, whether adduced by a co-defendant or by the
Crown. As is demonstrated immediately below, however, it seems that
the Law Commission did not intend the operation of this rule to pre-
clude the possibility that a confession made by a third party to criminal
proceedings could be admitted against its maker under the provisions of
the 2003 Act. Thus, whilst the position is not clear, it may be that the
Law Commission envisaged that confessions admitted under the provi-
sions of the 1984 Act would not be admissible against persons other than
their makers, but intended that confessions could potentially be admis-
sible against persons other than their makers under the provisions of the
2003 Act.
So far as confessions made by persons who are not defendants in the
proceedings (i.e. confessions made by third parties) are concerned, the
Law Commission recognised that the existing position was that ‘[a]
confession by someone who is not a defendant in the proceedings is
inadmissible hearsay, following Blastland . . .’.12 The Law Commission
intended, however, that such a confession could be admissible under
the provision that now exists in the guise of s. 116 of the 2003 Act
if the witness was dead, too ill to attend, could not be found, was outside
the UK or was in fear or otherwise could be admissible in the interests of
justice under the ‘safety-valve’ inclusionary discretion which now exists
in the form of s. 114(1)(d) of the 2003 Act.13 The Law Commission’s
concerns related to:
the exclusion of confessions which are relevant. What should not arise is
the situation where, because it is known that someone else has confessed,
10 G. Durston, ‘The Admissibility of Co-defendants’ Confessions under the Criminal
Justice Act 2003’ (2004) 168 JPN 488 at 489.
11 R v Spinks (1982) 74 Cr App R 263 at 266. See also R v Gunerwardene [1951] 2 KB
600 and R v Hayter [2005] 2 Cr App R 3. Where ‘a confession made by an accused
person’ is admissible under s. 76(1) of the Police and Criminal Evidence Act 1984 it
is admissible ‘against him’. Thus, s. 76(1) does not render a confession made by an
accused person admissible against the person’s co-defendants.
12 Law Commission, above n. 1 at para. 8.97. In R v Blastland [1986] AC 41, the
House of Lords had approved the decision of the Court of Appeal in R v Turner
(1975) 61 Cr App R 67, the Court of Appeal in Turner having held at p. 87 that
third-party confessions were inadmissible because they were ‘. . . hearsay evidence
which did not come within any of the well settled exceptions to the general rule
that hearsay evidence is not admissible’.
13 Law Commission, above n. 1 at para. 8.99.
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