Vulnerability Through a Legal Lens: A Comparative Jurisdictional Analysis of the Law of Confessions and Vulnerable Suspects
| Published date | 01 June 2024 |
| DOI | http://doi.org/10.1177/00220183241256739 |
| Author | David Hughes,Angela King |
| Date | 01 June 2024 |
| Subject Matter | Articles |
Vulnerability Through a Legal Lens:
A Comparative Jurisdictional
Analysis of the Law of Confessions
and Vulnerable Suspects
David Hughes
Teesside University, UK
Angela King
Teesside University, UK
Abstract
This article considers the law of confessions in England and the United States of America
Supreme Court’s Fourteenth amendment cases, with a focus on suspects who are vulnerable.
The question that is asked in the piece of work is whether the English statutory provisions and
the decisions of the US Supreme Court provide sufficient protection to vulnerable suspects
who falsely confess to crimes. A novel approach is adopted with this comparative analysis
as it extends the knowledge base by examining vulnerability and the law of confessions within
two jurisdictional parameters. A further contribution to knowledge can be seen as the paper
provides a bespoke piece of legislation that affords protection to such individuals, and thereby
adds to the current debate on vulnerability in the criminal justice system. Firstly, the work crit-
ically examine why vulnerable suspects will falsely confess to criminal acts. It will be established
that vulnerable suspects may confess even if they have not been coerced, and this will be the
foundational basis for the suggested reform: a vulnerable suspects confession should be
excluded as a result of their characteristics or that such individuals should be provided with
mandatory legal advice. The focus will then turn to the extant position in England, where it
will be revealed that confessions will be excluded if they have been obtained by unfair practices
or through inhumane or degrading treatment. It will also be recognised that the English juris-
diction affords limited protection to vulnerable suspects even though they are entitled to legal
advice and an appropriate adult being present. The US Supreme Court’s position will then be
evaluated by chronologically critiquing the use of the due process clause in cases of confes-
sions. It will be identified that the vulnerability of the individual can be considered in determin-
ing whether a confession should be excluded but cannot be utilised in isolation of other
Corresponding authors:
David Hughes, Teesside University, Middlesbrough, North Yorkshire, UK.
E-mail: d.hughes@tees.ac.uk
Angela King, Teesside University, Middlesbrough, North Yorkshire, UK.
E-mail: a.king@tees.ac.uk
Article
The Journal of Criminal Law
2024, Vol. 88(3) 182–210
© The Author(s) 2024
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/00220183241256739
journals.sagepub.com/home/clj
factors. The two jurisdictions will then be critically compared and the positive and negative
aspects of the law in the jurisdictions will be evaluated. It will be established that neither
England nor the US Supreme provides sufficient protection to vulnerable suspects and the
law requires further refinement, by placing priority on mandatory legal advice and/or an oppor-
tunity to exclude the confession. A de novo remedial statutory provision for England is pro-
vided as an effective solution to the issue of vulnerability and false confessions.
Keywords
Confessions, vulnerability, English, USA, vulnerable suspects
Introduction
The treatment of vulnerable witnesses and suspects in the criminal justice system is a contemporary issue
with several disciplines providing research in this area. The purpose of this article is to build upon this
discourse by assessing the vulnerability of suspects and the law of confessions via a comparative juris-
dictional analysis, and further contributes to the academic debate in this arena. It is well recognised that
vulnerable suspects are more likely to confess when they are detained by the police for questioning, and
that this can ultimately lead to a false confession. At this moment in time there has been no comparative
jurisdictional analysis that has focused upon the English position and the fourteenth amendment, and the
reasons why a vulnerable suspect may confess to a crime that they have not committed. This work will
assess the current position from a number of perspectives and consists of four parts. The first part of the
paper will evaluate two factors that can impact upon the decision-making process of a vulnerable suspect.
These being situational factors (external factors) and personal risk factors (internal factors). It will be
identified that both factors or either factor can lead to a vulnerable suspect confessing to a crime that
they have not committed. The discourse in this section will be the foundation for proposing that internal
factors should be considered in isolation. The second part of the paper will assess the current statutory
framework on the law of confessions in England. It will be identified that English statutory framework
has mechanisms in place to exclude confessions that assess admissibility via external factors, external
factors and internal factors, but there is no expressly stated provision that excludes a confession
through internal factors. The focus in the third part of the work then moves to the decisions of the
Supreme Court of the USA and their interpretation of the fourteenth amendment. The rationale to restrict
the comparative study to the fourteenth amendment is that the fourteenth amendment performs the same
function as the English law and this is a sound basis for a comparative analysis.
1
It will be recognised that
the US Supreme Court’s position is similar to English law as the fourteenth amendment excludes confes-
sion that have been made through external factors, and external factors and internal factors, but the court
will not exclude confession that only relate to the internal factors. The final part of the study compares the
two jurisdictions and identifies the similarities and differences, and that both countries fail to consider the
vulnerability of a suspect in isolation. In the conclusion to the paper it is proposed that the way forward in
English law is to insert a statutory provision, and the United States Supreme Court ought to recognise
fundamental fairness so that internal factors can be considered in isolation. The English remedial statu-
tory provision is set out in the conclusion and stipulates that in indictable cases the court must exclude a
confession if the defendant is vulnerable and requests that the inculpatory statement be excluded. We will
begin by assessing vulnerable suspects and false confessions.
1. K Zwigwert and H Kötz, Introduction to Comparative Law (Tony Weir tr, 3rd edn, Oxford University Press 1998), 34.
Hughes and King 183
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