The Hearsay Rule and Confessions Relied upon by the Defence: R v Myers
| Author | Andrew L.-T. Choo |
| Published date | 01 July 1997 |
| Date | 01 July 1997 |
| DOI | http://doi.org/10.1177/136571279700100305 |
| Subject Matter | Article |
71
I
ine
hearsay
r
contessions
the
defence:
Rv
Myers
rule and
relied upon
by
By
Andrew
L.-1
Choo
Professor of
Law,
Brunel
University
onfession evidence' is notoriously unreliable. Such evidence is.
however, admissible in English law as
prosecution
evidence, as an
exception to the rule against hearsay,
so
long as the test for
admissibility in
s.
76(2) of the Police and Criminal Evidence Act
1984
is
satisfied. Section 76(2) effectively requires
two
conditions to be satisfied
before a confession is admissible in evidence for the prosecution. First, the
confession must not have been obtained by oppression of the person making
it. Secondly, it must not have been obtained in consequence of anything said
or
done which was likely to result in an unreliable confession being made.
A
confession which satisfies both conditions and is therefore technically
admissible in evidence is still liable to be excluded in the exercise of the
discretion of the trial judge.2 The discretion may be exercised if, for example,
the confession has been obtained in breach of the Codes of Practice issued
under the Police and Criminal Evidence Act
1984.
Where what is at issue, however, is evidence sought to be adduced by the
defence
of confessions made by a co-accused
or
a third party, English law
remains in a state of considerable confusion. This is
so
despite the recent
decision of the Court of Appeal in
R
v
Myers
119963
2
Cr
App
R
335.
The
appellant's contention in the Court of Appeal was that the trial judge had
erred in permitting evidence of her confessions to be adduced by her
1
A
recent detailed treatment
of
confession evidence in England is to be found in
D.
Wolchover
and
A.
Heaton-Armstrong. Wolchover and Heaton-Armstrong
on
Confession Evidence, London: Sweet
&
2
Either pursuant to the common-law discretion to exclude admissible evidence in the interests of
ensuring a fair trial
(R
v Sang
119801
AC
402)
or
(more commonly nowadays) pursuant to
s.
78(1)
of the Police and Criminal Evidence Act
1984.
which provides: 'In any proceedings the court
may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears
to the court that. having regard to all the circumstances. including the circumstances in which
the evidence was obtained, the admission
of
the evidence would have such an adverse effect on
the fairness of the proceedings that the
court
ought not to admit it'.
r
Maxwell,
1996.
158
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