Chapter 4 – Confessions and Miscarriages of

Justice

VIDEO TRANSCRIPT
“Confessions and Miscarriages of Justice”
Chapter 4 of the module guide explores the legal framework dedicated to the admissibility of
confessions, the more general statutory discretion that a judge can wield to exclude improperly
obtained evidence, and other powers to address cases where a defendant has been improperly
induced to commit a crime.
In this lecture, we will first define confessions for the purposes of the law;
We will then explore concerns with the use of confessions as evidence and why their
admissibility is restricted in light of the potential for miscarriages of justice;
We will then unpack the key provisions that govern when confessions will be excluded;
And lastly, we will consider options for reform.
What is a confession? Before assessing how the law would apply, it is first necessary to be able to
identify whether or not a statement constitutes a confession.
The term confession is likely already part of your normal vocabulary, referring to a situation
where someone admits to having done wrong or shares something they would ordinarily keep
hidden.
The legal definition is similar and is found in section 82(1) of the Police and Criminal Evidence
Act 1984. It defines a confession as “including 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.”
As the definition makes clear, the statement must be adverse to the maker’s case. This does not
require them to fully admit to guilt, but only concede a fact of significance to their interests. It
could, therefore, mean simply admitting to being at the crime scene, even without admitting to
the crime itself. The fact that the statement can be wholly or partly adverse means a confession
might come as part of a mixed statement in which the defendant had argued their innocence in
some respects while conceding other inculpatory facts.
As the definition also makes clear, confessions can be made to whoever, however. Typically,
these statements will be made to police investigators, but confessions might also be made to
friends, family, or anyone else. Typically, these ‘statements’ would be made verbally or in writing,
but the statute makes clear that other means are possible as well—for example, through a
gesture such as nodding to a question.
At first glance, confessions might be thought to be high quality evidence and readily admissible.
They come directly from the guilty party, and given the severity of criminal justice
consequences, those confessing seem to have good reason not to admit things that are not true.

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However, despite these impressions, there are important concerns about the reliability of
confessions, the methods by which they are obtained, and their potential to lead to miscarriages
of justice. In fact, the apparent significance of confessions for securing convictions may invite
police tactics that both violate accepted values and contribute to this unreliability.
Research demonstrates that false confessions can and do occur for several different reasons
involving psychological vulnerabilities or external pressures.
It may be the case that suspects make false confessions voluntarily. This may be for a variety of
psychological or strategic reasons. They may, for instance, be unable to distinguish reality from
fantasy or desire the notoriety that accompanies guilt. They may want to protect someone else
from liability, hide other facts, or secure leniency.
It may instead be the case that individuals make false confessions involuntarily, or due to
coercion. In light of inappropriate pressures, threats, or prolonged detention, suspects may
confess falsely for instrumental reasons of escaping pressure, like being able to go home or
ending the interrogation. Less intuitively, suspects may make false confessions where coercive
police tactics cause victims to actually believe, incorrectly, that the confession is or is likely to be
true. This may be where they have no memory of what happened at the time of the event or
where tactics cause them to distrust the memories they do have.
In more extreme cases of police misconduct, it may be that no confession is actually made, but
police simply fabricate it.
Because of these concerns, the law serves to restrict the admissibility of confessions where the
circumstances are such that the reliability of the confession might be questionable, as well as
where this involves impropriety on the part of police investigators.
The key provision restricting the admissibility of confessions is found in s.76(2) of the Police and
Criminal Evidence Act. This subsection specifies two situations in which a confession must be
excluded.
The first of these is found in section s.76(2)(a), which states that a confession must be excluded
where it was obtained “by oppression of the person who made it”.
“Oppression” is given a non-comprehensive definition in s.76(8), specifying that it “includes
torture, inhuman or degrading treatment, and the use or threat of violence.”
Case law, however, has indicated that the term should be given its ordinary meaning with a
somewhat lower threshold. The case of Fulling [1987] indicates that oppression can be
understood as being treated in a “burdensome, harsh, or wrongful manner”—treatment which is
typically done in bad faith.
The exact point at which treatment will constitute oppression is not necessarily clear, but it is
clear that not all unpleasant treatment constitutes oppression. In Fulling, for instance, the
defendant argued that she confessed due to extreme distress after being informed by an officer
that her lover had been having an affair, and that this woman was close by. In Emmerson [1990],
the defendant confessed after having the interrogating officer raise their voice and curse at
them. Neither of these situations were deemed to involve oppression.
In contrast, the case of Paris [1993] saw one of the defendants being subject to a prolonged,
hostile, and intimidating period of questioning during which he denied involvement some 300
times. This confession was deemed to have been obtained by oppression.
The second situation in which a confession must be excluded is found in s.76(2)(b). Here,
confessions will be excluded where they are obtained by “anything said or done which was
likely, in the circumstances…to render [a confession] unreliable.”

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This would include considering circumstances like the defendant’s physical or emotional state,
or mental health conditions.
Despite the existence of concerning circumstances, however, the confession must be obtained
through something ‘said or done’. The mere fact that the defendant is going through withdrawal
symptoms, a circumstance which may be likely to render subsequent confessions unreliable, is
not enough to satisfy s.76(2)(b). This was held to be the case in Goldenberg (1988) and Crampton
[1990]. The threat to reliability cannot be solely internal to the person confessing. In contrast, a
failure to follow codes of practice during an interview, which we will discuss shortly, might
satisfy this requirement, though no bad faith is required.
If the confession is not mandatorily excluded under s.76, it may nonetheless be held
inadmissible through a discretionary power which judges wield under s.78.
Section 78 grants courts discretion to exclude any evidence adduced by the prosecution where,
all things considered, “admission of the evidence would have such an adverse effect on the
fairness of the proceedings that the court ought not to admit it.”
This is a general discretion that applies far beyond confession evidence. It is especially relevant
to confessions, however, as the provision specifically points to “the circumstances in which the
evidence was obtained.”
Courts have been reluctant to lay down clear guidance as to when s.78 should be used; however,
breaches of the Codes of Practice are frequent bases for exclusion. These Codes govern how
police officers should conduct themselves in investigations and interviews and thus serve as a
framework for the conditions in which confessions are likely to arise. Breaches which result in
exclusion under the section are those that are “significant and substantial”.
For instance, Code C, together with section 58 of PACE, ensures access to legal advice. Denial of
this right may very well lead to exclusion through section 78.
As another example, Codes E, F, and C contain requirements related to the recording of
interviews, whether that be audio, video, or in writing. Failure to respect these conditions may
also result in a confession being excluded.
It should be clear by this point that while being influential, concerns exist about confession
evidence and the law contains several means by which problematic confessions can be
excluded.
Nonetheless, it may be asked whether the law sufficiently protects against potential miscarriages
of justice. In this respect, consider several possibilities for reform might be considered.
Consider, for instance, the dangers of convicting on confession evidence alone. One reform
might be to require confessions to be corroborated by other evidence, as in Scotland. This
possibility was considered, though ultimately recommended against, by the Royal Commission
on Criminal Justice in the 1990s.
An alternative which was in fact recommended by the Commission is to require judges to warn
juries that they exercise caution in convicting on the basis of a confession alone. This
recommendation was not, however, instituted.
Or consider a stricter approach to key protective features outlined in the Codes—a general
prohibition against the use of confessions that were made without a solicitor present, or during
unrecorded interviews, for instance.
After revisiting the reasons that individuals make false confessions discussed earlier in this
lecture, as well as the possibility for fabricated confessions by the police, consider whether you
think the current legal framework adequately protects against miscarriages of justice.
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