House of Lords
| Published date | 01 November 1981 |
| Date | 01 November 1981 |
| DOI | 10.1177/002201838104500404 |
| Subject Matter | Article |
House
of
Lords
Comments
on
Cases
INADMISSIBILITY
OF
ADMISSIONS MADE AT
THE
VOIR
DIRE
R.
v.
Brophy
Where there is a trial within a trial, to determine whether an accused
person's confession was made voluntarily, may admissions then made
by the accused be used by the Crown at the subsequent trial as evidence
tending to prove
that
he is guilty of the offence charged? No doubt the
man in the street would regard it as contrary to common sense that
where a person accused on indictment has confessed to the trial judge
that he had committed the offence charged,
that
same trial judge, when
assessing his guilt, must take no account
of
his confession. But, as is so
often the case with the law
of
evidence in criminal cases, common sense
has nothing to do with it. In R.
v.
Brophy, [1981] 3 W. L. R. 103. the
appellant was charged on 12 counts of murder, 36 counts
of
causing
explosions and possessing explosives and one of being a member
of
an
illegal organisation. The charges were based on his own statements to
the police. At his trial before a judge withouta
jury,
under the Northern
Ireland (Emergency Provisions) Act 1978, the accused alleged that his
confession was induced by torture or inhuman or degrading treatment,
contrary to section 8 (2)
of
the Act
of
1978. The trial judge, holding
that he was not satisfied that the statement had not been so obtained,
excluded the evidence and acquitted the accused on all counts save that
of
belonging to an illegal organisation. On
that
count, the accused was
convicted, on the bassis
of
his having, on the voir dire, freely and
explicitly admitted, in answer to his own counsel's question, his
membership
of
that
organisation. Indeed, to make doubly sure
that
this admission was before the court, the Crown called the shorthand
writer to swear
that
he had heard the accused make the admission,
although this, as the House
of
Lords remarked, would appear to have
been superfluous, as the judge had already heard the accused make the
admission.
At the trial, the judge admitted the confession, on the ground
that
it had not strictly been relevant to the issue raised on the voir dire, for
it was not there essential to the central question, namely whether the
accused's statement to he police had been made in the circumstances
alleged by the accused. The Court
of
Appeal in Northern Ireland
quashed his conviction. The House
of
Lords dismissed the Crown's
C' 211
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