Defensive Use of a Co-Accused's Confession and the Criminal Justice Act 2003
| DOI | 10.1350/ijep.8.3.165.40866 |
| Published date | 01 July 2004 |
| Author | John Hartshorne |
| Date | 01 July 2004 |
| Subject Matter | Article |
THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF 165
DEFENSIVE USE OF A CO-ACCUSED’S CONFESSION AND THE CRIMINAL JUSTICE ACT 2003
P
Defensive use of a
co-accused’s confession
and the Criminal Justice
Act 2003
By John Hartshorne*
Lecturer in Law, University of Leicester
Abstract. The Criminal Justice Act 2003 introduces statutory provisions
regulating the extent to which a defendant may adduce a co-defendant’s
confession in a joint trial. The relevant provisions are based upon the
recommendations of the Law Commission. In this article it is argued that the
Law Commission’s analysis was overly narrow, and that as a consequence the
emerging legislation is unsatisfactory in several significant respects, to the
extent that it may even be incompatible with Article 6 of the European Convention
on Human Rights. The potential for curing the highlighted deficiencies within
the legislation is considered. The article also discusses the extent to which a
defendant may continue to adduce a co-accused’s confession as a previous
inconsistent statement.
rior to the 1997 decision of the House of Lords in R v Myers,1 the extent to
which a defendant in a joint trial might be permitted to adduce a confession
of a co-defendant was a matter of some uncertainty.2 Whilst R v Myers
confirmed that a defendant would not be prevented by the hearsay rule from
adducing a co-accused’s confession as evidence of the matters stated, the decision
left unanswered questions concerning the doctrinal basis upon which the court
might nevertheless exclude the confession where a defendant was seeking to rely
upon it.3 The Criminal Justice Act 2003 (CJA) now places these issues on a statutory
footing, and spells out the basis upon which a confession may be excluded where it
is a joint defendant that has applied for the confession to be admitted, rather than
* I would like to thank Andrew Choo for his helpful comments upon an earlier draft of this
article. The opinions ventured, and any legal inaccuracies, remain mine alone.
1 [1998] AC 124.
2 For discussion of this uncertainty, and the extent to which it was removed by the decision in
R v Myers, see M. Hirst, ‘Confessions as Proof of Innocence’ (1998) 57 CLJ 146, and J. Hartshorne
and A. L.-T. Choo, ‘Hearsay Fiddles in the House of Lords’ (1999) 62 MLR 290.
3 See ibid.
(2004) 8 E&P 165–178
To continue reading
Request your trial