Syllabus 16: Confessions and unlawfully or unfairly obtained evidence
1. Meaning of confession: PACE 1984, s.82
[F18.1 - F18.5]
(1)In this Part of this Act—
- “confession”, includes any statement wholly or partly adverse to the person who made it,
whether made to a person in authority or not and whether made in words or otherwise;
Should follow from the above and s.76(1) PACE that only a confession made ‘by’ an accused may be
given in evidence ‘against him’.
a) Guilty plea and pleas in mitigation
A G plea constitutes a confession for s.82(1).
An admission made by an accused in other proceedings would similarly constitute a confession for the
purposes of the 1984 Act and could be relied upon provided that it complies with the provisions of
s.76(2).
A plea in mitigation made by counsel who has been convicted following a plea of NG should not be
understood as a confession by the convicted person through counsel.
b) Confessions other than in words
A confession may include conduct such as a nod of acceptance of an accusation or a thumbs up sign
which may be properly regarded as a statement in sign language.
Re-enactments have been considered as confessions.
Conduct which is not intended to convey guilt, but which may be interpreted as doing so, is not a
statement and hence not a confession (ex: driving away at speed from an accident).
c) Party and wholly exculpatory statements
Wholly incriminating = capable of being a confession
Mixed statements = both incriminating and exculpatory= capable of being a confession
Wholly exculpatory = Cannot amount to a confession
2. Principles of admissibility under the PACE 1984, s.76 (MANDATORY EXCLUSION)
[F18.8- F18.14, F18.16, F18.17-F18-20, F18.24]
s.76: (1) In any proceedings a confession made by an accused person may be given in evidence against
him in so far as it is relevant to any matter in issue in the proceedings and is not excluded by the
court in pursuance of this section.
(2) If, in any proceedings where the prosecution proposes to give in evidence a confession made by an
accused person, it is represented to the court that the confession was or may have been obtained—
(a)by oppression of the person who made it; or
(b)in consequence of anything said or done which was likely, in the circumstances existing at the
time, to render unreliable any confession which might be made by him in consequence thereof,
, the court shall not allow the confession to be given in evidence against him except in so far as the
prosecution proves to the court beyond reasonable doubt that the confession (notwithstanding
that it may be true) was not obtained as aforesaid.
(3)In any proceedings where the prosecution proposes to give in evidence a confession made by an
accused person, the court may of its own motion require the prosecution, as a condition of allowing it
to do so, to prove that the confession was not obtained as mentioned in subsection (2) above.
The Prosecution do not have to prove the admissibility of a confession upon which they rely unless:
- The defence represent that it is inadmissible under s.76; or
- The court of its own motion requires proof of inadmissibility.
A confession can be excluded in part.
a) Exclusion for oppression, PACE s.76(2)(a)
s.76(8):
In this section “oppression” includes torture, inhuman or degrading treatment, and the use or threat of
violence (whether or not amounting to torture).
Ambit of oppression
Exercise of authority or power in a burdensome, harsh or wrongful manner; unjust or cruel treatment
of subjects, inferiors etc, the imposition of unreasonable or unjust burdens.
Exclusion for oppression is likely to be reserved for those rare cases where an accused has been
subjected to misconduct of deliberate and serious nature, and where the court is anxious to mark its
disquiet at the methods employed.
Relevance of character and attributes of accused
The nature of oppression varies according to the character and attributes of the accused.
b) Exclusion for unreliability: PACE s.76(2)(b)
The criminal law revision committed considered that a confession should not be excluded simply on
the basis that it was obtained in consequence of a threat or inducement, unless the circumstances were
such that any resulting confession would be likely to be unreliable. This became s.76(2)(b), ‘threat or
inducement’ was replaced by anything said or done.
Application of statutory test
The trial judge should consider the questions: not whether this confession is reliable but whether any
confession which the accused might make in consequence of what was said or done was likely to be
rendered unreliable.
‘Anything said or done’
The judge is obliged to consider anything said or done (usually by the police) and not to confine the
inquiry to a narrow analysis analogous to offer and acceptance in the law of contract.
This and the inclusion of all the surrounding circumstances, are indications that a confession may be
inadmissible, notwithstanding that the police have not behaved improperly.
Words or actions of the accused
1. Meaning of confession: PACE 1984, s.82
[F18.1 - F18.5]
(1)In this Part of this Act—
- “confession”, includes any statement wholly or partly adverse to the person who made it,
whether made to a person in authority or not and whether made in words or otherwise;
Should follow from the above and s.76(1) PACE that only a confession made ‘by’ an accused may be
given in evidence ‘against him’.
a) Guilty plea and pleas in mitigation
A G plea constitutes a confession for s.82(1).
An admission made by an accused in other proceedings would similarly constitute a confession for the
purposes of the 1984 Act and could be relied upon provided that it complies with the provisions of
s.76(2).
A plea in mitigation made by counsel who has been convicted following a plea of NG should not be
understood as a confession by the convicted person through counsel.
b) Confessions other than in words
A confession may include conduct such as a nod of acceptance of an accusation or a thumbs up sign
which may be properly regarded as a statement in sign language.
Re-enactments have been considered as confessions.
Conduct which is not intended to convey guilt, but which may be interpreted as doing so, is not a
statement and hence not a confession (ex: driving away at speed from an accident).
c) Party and wholly exculpatory statements
Wholly incriminating = capable of being a confession
Mixed statements = both incriminating and exculpatory= capable of being a confession
Wholly exculpatory = Cannot amount to a confession
2. Principles of admissibility under the PACE 1984, s.76 (MANDATORY EXCLUSION)
[F18.8- F18.14, F18.16, F18.17-F18-20, F18.24]
s.76: (1) In any proceedings a confession made by an accused person may be given in evidence against
him in so far as it is relevant to any matter in issue in the proceedings and is not excluded by the
court in pursuance of this section.
(2) If, in any proceedings where the prosecution proposes to give in evidence a confession made by an
accused person, it is represented to the court that the confession was or may have been obtained—
(a)by oppression of the person who made it; or
(b)in consequence of anything said or done which was likely, in the circumstances existing at the
time, to render unreliable any confession which might be made by him in consequence thereof,
, the court shall not allow the confession to be given in evidence against him except in so far as the
prosecution proves to the court beyond reasonable doubt that the confession (notwithstanding
that it may be true) was not obtained as aforesaid.
(3)In any proceedings where the prosecution proposes to give in evidence a confession made by an
accused person, the court may of its own motion require the prosecution, as a condition of allowing it
to do so, to prove that the confession was not obtained as mentioned in subsection (2) above.
The Prosecution do not have to prove the admissibility of a confession upon which they rely unless:
- The defence represent that it is inadmissible under s.76; or
- The court of its own motion requires proof of inadmissibility.
A confession can be excluded in part.
a) Exclusion for oppression, PACE s.76(2)(a)
s.76(8):
In this section “oppression” includes torture, inhuman or degrading treatment, and the use or threat of
violence (whether or not amounting to torture).
Ambit of oppression
Exercise of authority or power in a burdensome, harsh or wrongful manner; unjust or cruel treatment
of subjects, inferiors etc, the imposition of unreasonable or unjust burdens.
Exclusion for oppression is likely to be reserved for those rare cases where an accused has been
subjected to misconduct of deliberate and serious nature, and where the court is anxious to mark its
disquiet at the methods employed.
Relevance of character and attributes of accused
The nature of oppression varies according to the character and attributes of the accused.
b) Exclusion for unreliability: PACE s.76(2)(b)
The criminal law revision committed considered that a confession should not be excluded simply on
the basis that it was obtained in consequence of a threat or inducement, unless the circumstances were
such that any resulting confession would be likely to be unreliable. This became s.76(2)(b), ‘threat or
inducement’ was replaced by anything said or done.
Application of statutory test
The trial judge should consider the questions: not whether this confession is reliable but whether any
confession which the accused might make in consequence of what was said or done was likely to be
rendered unreliable.
‘Anything said or done’
The judge is obliged to consider anything said or done (usually by the police) and not to confine the
inquiry to a narrow analysis analogous to offer and acceptance in the law of contract.
This and the inclusion of all the surrounding circumstances, are indications that a confession may be
inadmissible, notwithstanding that the police have not behaved improperly.
Words or actions of the accused
